As with most employment-related questions, the answer is not a clear “yes” or “no.” According to a recent decision by the US District Court in the Central District of California, an employee of Union Pacific was properly terminated when his fishing trip vacation photos were posted on Facebook and when the employee — at first — was less than honest about being on a fishing trip. See news report here. As with all terminations, the employer must act with caution. The case is Dunger v. Union Pacific Railroad, Case No. cv-18-6374 PA (SSx) (US Dist. CD Cal. June 3, 2019).

In that case, the plaintiff, Thomas Dunger, worked for Union Pacific Railroad (“UPR”) as a mechanic. Starting in 2013 or so, Dunger was diagnosed with two medical conditions — a hiatal hernia and gastroesophageal reflux disease. The combination of the conditions caused Dunger to suffer from severe abdominal pain and nausea and, after 2014 or so, the symptoms had been flaring up about twice a month. When the symptoms became too severe, Dunger had requested leave from work under the federal Family and Medical Leave Act (“FMLA”). UPR granted the requests which were sometimes paid leave and sometimes unpaid leave. UPR had a written policy with respect to FMLA requests. Included in the policy was a provision that explained that “intentional misuse” of FMLA and other absence policies would be grounds for termination. In 2017, UPR issued to its employees further information called a “Use Family Medical Leave Appropriately” policy and an Ethics Bulletin that both reiterated that an employee can be terminated for intentionally misusing FMLA leave.

On October 19, 2017, Dunger was in extreme pain and he went to an urgent care center. He received a medical note saying that he required intermittent leave until October 22, 2017. Dunger was scheduled to work on October 19, 20, and October 21. Dunger also had pre-planned a boating/fishing trip with his coworkers that weekend which was scheduled for the day of October 21, 2017. UPR has a leave policy that requires an employee to call in each day to report that they will be missing a shift. Based on his medical note, Dunger called in as required on October 19th and on October 20th to indicate that he would not be taking his shift based on his doctor’s note. On October 21st, Dunger went on the pre-planned fishing trip. His co-workers took video of the trip and Dunger was shown in the video. He was heard to say in the video: “I’m not out here.” Dunger was scheduled to work the graveyard shift starting at 10:00 pm on that day. However, at about 8 pm or so, from the fishing boat, Dunger called in to indicate that he would not be available to take his shift for October 21st based on his medical condition.

His UPR superiors eventually saw the video of Dunger on his fishing trip and asked him about it. At first, Dunger claimed that he did not recall whether it was him in the video, but later, admitted that he did go fishing on October 21st. After an investigation, UPR terminated Dunger for dishonesty and abuse of the FMLA policy.

Dunger filed a lawsuit in federal court claiming that his termination was in retaliation for exercising his rights under the FMLA. To win a case of retaliation, an employee must show three elements:

  • That the employee invoked his/her rights under the FMLA
  • That some “adverse decision” was made — like a decision to terminate an employee
  • And that the “adverse decision” was made because the employee exercised some right allowed under the FMLA

In response to Dunger’s lawsuit, UPR argued that it did not terminate Dunger for taking FMLA leave, but because he was dishonest and used his FMLA leave in a “manner that was inconsistent with his serious medical condition.” The trial court agreed with UPR and dismissed Dunger’s case. Dunger was unable to provide any evidence or proof that UPR fired him for any other reason than dishonesty. Dunger’s case was undermined by several crucial facts. First, the boating trip had been pre-planned. Second, he was seen in the video behaving and acting without nausea or abdominal pain. This was inconsistent with his claimed medical condition. Third, he called in to cancel his shift — based on an FMLA doctor’s note — while on his fishing trip. Finally, at first, he was less than fully honest about whether it was him depicted in the video. For these and based on UPR’s written policies, the court held that Dunger had no basis for claiming that UPR had retaliated against him.

Legal lessons: As noted above, employers must exercise caution under these types of circumstances. UPR did not fire Dunger for taking a vacation during his FMLA leave. Rather, they fired him for dishonesty and abuse of the FMLA policy. UPR also fully investigated what happened. As a result, UPR was successful in defending the lawsuit filed by Dunger.

Call San Diego Corporate Law Today

For more information, call corporate attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard has been named as “Best of the Bar” by the San Diego Business Journal for four years running. Mr. Leonard has extensive experience in drafting employee policies, employee handbooks, employment contracts, and all other contracts and agreements necessary for running your business. Mr. Leonard can be reached at (858) 483-9200 or via email. Like us on Facebook.

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