Justin Adkins v. CSX Transportation, Inc.

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-2051
JUSTIN ADKINS; JUSTIN BLAKE; EDWIN GLOWACKI; ERIC JORDAN;
KEVIN PALMER; DENNIS SARGENT; TRAVIS THORNSBERRY; MICHAEL
WILLIAMS; JOHN BAKER; JAMES BLAIN; DEVERY BROWN; JAMES
DEAL; JONATHAN JEFFERS; ROBERT MOSTELLER; MICHAEL L.
POTTER; MICHAEL D. POTTER; JESSEE WALLACE; TIMOTHY WITT;
JOHN BILLS; MICHAEL CLARK; RANDALL CRAYCRAFT; JOHN
FRASURE; SAMMY MADDIX; JAMES STINNETT; TODD THAYER;
MICHAEL CAMPBELL; TONY ABDON; THE ESTATE OF CHAD LITTLE;
BRANDON ADKINS; JACQUELINE MARSHALL; HOMER MAYNARD;
SCOTT MORRISON; JEREMY NAPIER; SHAWN PATTERSON; MATTHEW
WOODS; JOHN CARPENTER; QUINCY CHRISTIAN; GREGORY HAMM;
ETHAN MULLINS; MICHAEL OWENS; JONATHAN ROWE; DANNY
STEWART; LLOYD WILLIAMS; DAVID MANIS; JOSHUA FERGUSON;
ERIC SPEAKS; DONALD STEPHENS; JASON BARKER; CHAD DOWDY;
JERRY FLOCKER; GROVER KELLEY; CHRISTOPHER CLAY STILTNER;
DENNIS HUTCHINSON; JOSHUA HALL; ZACH POTTER; DEANNA
LANHAM; SAMUEL PRESTON; BOBBY AKERS; GERALD BARBER,
Plaintiffs - Appellants,
v.
CSX TRANSPORTATION, INCORPORATED; CRAIG S. HELIGMAN, M.D.;
GUS THOELE; CURT SHOGREN; MILTON STORM; DELANDO JONES; TOM
DEANGELO; SHAWN LUSK; ELIZABETH CREEDON; KENNETH RAY
EMERSON,
Defendants - Appellees,
and
CSX CORPORATION; DILLON DOUG JONES,
Defendants.
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Appeal from the United States District Court for the Southern District of West Virginia, at
Huntington. Robert C. Chambers, District Judge. (3:18-cv-00321)
Argued: May 4, 2023 Decided: June 16, 2023
Before NIEMEYER, AGEE, and RUSHING, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Agee
and Judge Rushing joined.
ARGUED: Jeff R. Dingwall, EIGHT & SAND, San Diego, California; Gregory G. Paul,
MORGAN & PAUL, PLLC, Pittsburgh, Pennsylvania, for Appellants. Brian David
Schmalzbach, MCGUIREWOODS LLP, Richmond, Virginia, for Appellees. ON BRIEF:
Melissa Foster Bird, NELSON MULLINS RILEY & SCARBOROUGH LLP, Huntington,
West Virginia; Samuel L. Tarry, Jr., Tysons, Virginia, Davis M. Walsh, Kathryn M.
Barber, MCGUIREWOODS LLP, Richmond, Virginia, for Appellees.
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NIEMEYER, Circuit Judge:
On June 16, 2017, CSX Transportation, Inc. (“CSXT”) issued furlough notices to
employees at its facility in Huntington, West Virginia. Over the course of the weeks
following the issuance of those notices, over 65 employees submitted forms requesting to
take medical leave based on claimed minor soft-tissue injuries sustained while off duty.
The forms were similar in content; all were signed by one of two chiropractors; and all
called for medical leave of eight weeks or more. Under CSXT’s benefit plans, if an
employee were furloughed while on medical leave, the employee would receive health and
welfare benefits for up to two years. Otherwise, a furloughed employee would receive
such benefits for only four months.
Suspecting benefits fraud, CSXT charged the employees with violating its
workplace rule against dishonesty and, following hearings, terminated their employment.
In response to their termination, 58 employees commenced this action against
CSXT * and its involved employees (collectively hereafter, “CSXT”), alleging, in ten
counts, violations of their rights under federal and state law, including, as relevant here,
violations of the Employee Retirement Income Security Act of 1974 (“ERISA”), the
Rehabilitation Act of 1973, the West Virginia Human Rights Act, and the Family and
Medical Leave Act of 1993 (“FMLA”). The plaintiffs alleged that CSXT discriminated
and retaliated against them for seeking medical leave and also interfered with their rights
*
The plaintiffs also named CSXT’s parent corporation, CSX Corporation, as a
defendant, but the district court dismissed CSX Corporation for lack of personal
jurisdiction, a ruling that the plaintiffs are not challenging on appeal.
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under the FMLA. Following discovery, the district court granted CSXT summary
judgment on all claims.
With respect to the plaintiffs’ discrimination and retaliation claims, we conclude
that CSXT provided a legitimate, nondiscriminatory reason for terminating the plaintiffs
and that the plaintiffs failed to present evidence to create a genuine issue of material fact
as to whether the reason was pretextual. And with respect to the plaintiffs’ FMLA
interference claim, we find that the plaintiffs failed to present any evidence of prejudice.
Accordingly, we affirm.
I
During the period of June and July 2017, following CSXT’s June issuance of
furlough notices to a number of employees, CSXT received 67 forms by which employees
at CSXT’s Huntington facility took medical leave. Pursuant to the collective bargaining
agreement, the tool for taking such leave was a “Certificate of Ongoing Illness or Injury”
form (“COII form”), which was typically prepared and signed by a medical provider. All
67 of the COII forms received were signed and submitted by one of two chiropractors, Dr.
Shannon Johnson and Dr. Daniel Carey. The forms submitted were similar or identical in
content, and Dr. Johnson submitted 14 such forms on a single day. All forms claimed that
the employee suffered from minor musculoskeletal conditions such as sprains or muscle
spasms; all but one stated that the injuries were sustained while the employee was off duty;
all forms described generalized medical conditions and included no individualized
assessment; and all forms required that the employee remain off work for at least eight
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weeks. CSXT found the eight-week leave especially extraordinary in light of its chief
medical officer’s opinion that only “a few days to a week or so” should have been necessary
for the claimed injuries to heal.
After CSXT had received over 50 of these COII forms, its Chief Medical Officer,
Dr. Craig Heligman, became suspicious that the forms were being fraudulently submitted
in an effort to extend the employees’ health and welfare benefits. He indicated that in his
lengthy career, including approximately five years at CSXT, he had never seen anything
like what was occurring — two practitioners’ submission of “so many” markedly similar
COII forms “in that very short period of time” had “just never happened.”
Dr. Heligman provided the information supporting his suspicion to CSXT’s Labor
Relations team, which reviewed the information and then decided to pursue charges of
dishonesty and fraud against the employees involved. Accordingly, as required by the
collective bargaining agreement, CSXT issued charge letters to each employee to
“[a]rrange to attend a formal investigation” that was intended
to develop the facts and place your responsibility, if any, in connection with
information received on July 14, 2017, from the CSXT Chief Medical Officer
that you were dishonest and attempted to defraud the Company and/or
benefits providers when you, as well as more than 50 other craft employees,
submitted potentially fraudulent documentation, and all circumstances
relating thereto.
The investigation as to each employee involved a hearing at which the employee, at his
election, appeared; was represented by a union representative; presented evidence; and
cross-examined company witnesses. A transcript of each hearing was made. Following
the hearings, the full record was examined by the Labor Relations team, and that team then
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made its recommendations to CSXT Vice President Brian Barr. Following his
collaboration with the team, Barr made the decision to terminate the plaintiffs’ employment
for violating the CSXT Code of Ethics and the dishonesty prohibition in CSXT’s Operating
Rule 104.2, which provided, “Employee behavior must be respectful and courteous.
Employees must not be any of the following: (a) dishonest, (b) insubordinate, (c) disloyal,
or (d) quarrelsome.” (Emphasis added). CSXT also sent letters to Dr. Johnson and Dr.
Carey advising them that CSXT would no longer accept medical documentation from their
offices on behalf of any CSXT employee. Finally, CSXT notified its benefits providers.
Many of the employees appealed to the Public Law Board — an arbitral tribunal
composed of one union representative, one CSXT representative, and one neutral member
— and the Public Law Board largely upheld the termination decisions, although it
reinstated a few employees.
In February 2018, 58 former CSXT employees commenced this action against
CSXT, alleging ten distinct claims arising under federal and state law in connection with
the investigation and the subsequent terminations of their employment. On CSXT’s
motion, the court dismissed six of the claims in various orders that have not been appealed.
With respect to the four remaining claims — claims under ERISA, the Rehabilitation Act,
the West Virginia Human Rights Act, and the FMLA — the court granted CSXT summary
judgment by order dated August 23, 2021. With respect to the plaintiffs’ claims of
discrimination and retaliation under those statutes, the court found that CSXT had provided
a consistent and legitimate, nondiscriminatory reason for terminating the plaintiffs based
on CSXT’s belief that the plaintiffs were seeking time off work on an illegitimate basis and
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that the plaintiffs had failed to create a genuine issue of material fact as to whether the
reason CSXT gave was pretextual. And with respect to the plaintiffs’ FMLA interference
claim, the court found that CSXT did not interfere with the plaintiffs’ rights because it
honestly believed that the plaintiffs were seeking leave for an improper purpose.
From the district court’s judgment, the plaintiffs filed this appeal.
After this appeal was filed, all but six of the plaintiffs resolved their claims and are
no longer parties to this action. The six remaining plaintiffs are John Baker, Randall
Craycraft, Chad Dowdy, Sammy Maddix, Danny Stewart, and James Stinnett, and the facts
relating to them are consistent with those described generally above for the 58 plaintiffs.
They visited Dr. Carey or Dr. Johnson for soft-tissue injuries, such as back pain or muscle
spasms; the chiropractors submitted COII forms indicating that each employee would need
to be off work for at least eight weeks; and the employment of each employee was
terminated for violating the CSXT Code of Ethics and Operating Rule 104.2(a) after
completion of the investigators’ hearings. Also, these remaining plaintiffs are appealing
only the district court’s summary judgment order of August 23, 2021, which granted CSXT
summary judgment on their claims for discrimination and retaliation under ERISA, the
Rehabilitation Act, the West Virginia Human Rights Act, and the FMLA, as well as their
claim of FMLA interference.
II
As to the plaintiffs’ claims that CSXT discriminated and retaliated against them, in
violation of their rights under ERISA, the Rehabilitation Act, the West Virginia Human
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Rights Act, and the FMLA, the district court credited, for purposes of argument, that the
plaintiffs had established a prima facie case. The court held, however, that CSXT had
given a legitimate, nondiscriminatory reason for terminating the plaintiffs’ employment
and that the plaintiffs had failed to present evidence sufficient to create a factual dispute as
to whether the reason given was pretextual. The plaintiffs contend that they did indeed
create a question of material fact as to pretext that should have precluded the entry of
summary judgment.
Both parties agree to the legal framework for the plaintiffs’ discrimination and
retaliation claims under the four statutes. ERISA makes it “unlawful for any person to
discharge, fine, suspend, expel, discipline, or discriminate against a participant or
beneficiary for exercising any right to which he is entitled under the provisions of an
employee benefit plan.” 29 U.S.C. § 1140. The Rehabilitation Act prohibits covered
employers from “discriminat[ing] against a qualified individual on the basis of disability
in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). The West Virginia Human Rights Act
makes it “an unlawful discriminatory practice . . . [f]or any employer to discriminate
against an individual with respect to compensation, hire, tenure, terms, conditions or
privileges of employment if the individual is able and competent to perform the services
required even if such individual is blind or disabled.” W. Va. Code § 5-11-9(1). And the
FMLA prohibits an employer from “discharg[ing] or in any other manner discriminat[ing]
against any individual for” exercising their FMLA rights. 29 U.S.C. § 2615(a)(2). The
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plaintiffs’ claims are thus based on the prohibition in each of these four statutes against
discrimination or retaliation in response to requests to take medical leave.
While the antidiscrimination and antiretaliation provisions of ERISA, the
Rehabilitation Act, the West Virginia Human Rights Act, and the FMLA provide varying
protections to employees, claims under these statutory provisions are nonetheless analyzed
under the same burden-shifting framework, as set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231,
239 (4th Cir. 1991) (applying McDonnell Douglas to ERISA discrimination claim);
Hannah P. v. Coats, 916 F.3d 327, 342 (4th Cir. 2019) (applying McDonnell Douglas to
Rehabilitation Act discrimination claim); Mayflower Vehicle Sys., Inc. v. Cheeks, 629
S.E.2d 762, 772 (W. Va. 2006) (applying McDonnell Douglas to West Virginia Human
Rights Act discrimination claim); Vannoy v. Fed. Rsrv. Bank of Richmond, 827 F.3d 296,
304 (4th Cir. 2016) (applying McDonnell Douglas to FMLA retaliation claim). Under the
McDonnell Douglas burden-shifting framework, a plaintiff claiming disability
discrimination or retaliation “must first make a prima facie showing that he [was disabled
or] engaged in protected activity, that the employer took adverse action against him, and
that the adverse action was causally connected to the plaintiff’s [disability or] protected
activity.” Vannoy, 827 F.3d at 304 (quoting Yashenko v. Harrah’s NC Casino Co., 446
F.3d 541, 551 (4th Cir. 2006)). Once the plaintiff proffers evidence establishing his prima
facie case and the employer offers a legitimate, nonretaliatory or nondiscriminatory reason
for the adverse action, the plaintiff “bears the burden of establishing that the employer’s
proffered explanation is pretext for . . . retaliation” or discrimination. Id. (quoting
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Yashenko, 446 F.3d at 551). “A plaintiff may satisfy this burden by showing either that
the employer’s explanation is not credible, or that the employer’s decision was more likely
the result of retaliation” or discrimination. Sharif v. United Airlines, Inc., 841 F.3d 199,
203 (4th Cir. 2016).
For our analysis, we too assume without deciding, as the district court did, that the
plaintiffs carried their initial burden of establishing a prima facie case under the pertinent
statutes. We also conclude that CSXT provided a “legitimate, nondiscriminatory reason”
for terminating each of the plaintiffs based on its finding that they had violated the
workplace rule prohibiting dishonesty. McDonnell Douglas, 411 U.S. at 802. The
plaintiffs therefore have the burden of demonstrating that the employer’s proffered
explanation was merely a pretext for discrimination or retaliation. See St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 510–11 (1993). And to survive summary judgment on pretext,
the plaintiffs “must produce sufficient evidence to create a genuine dispute of material fact
such that a reasonable factfinder could conclude the adverse employment action was taken
for an impermissible reason,” i.e., discrimination or retaliation. Sharif, 841 F.3d at 203.
The plaintiffs argue that they established a factual dispute over pretext by showing
that the result of CSXT’s disciplinary investigations was “predetermined” because Dr.
Heligman was the only witness who testified on behalf of the company and by the time he
testified at the disciplinary hearings, “he had already concluded that the Plaintiffs engaged
in fraud and were guilty.” The plaintiffs also emphasize that CSXT did not identify any
conclusive evidence of fraud, as Dr. Heligman acknowledged that his suspicions were
based on “pure speculation.” Thus, by challenging Dr. Heligman’s conclusions, which
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were the basis for CSXT’s decision to terminate their employment, the plaintiffs contend
they created questions of fact regarding whether CSXT had a legitimate basis to reach the
conclusions it did.
The difficulty with this argument is that while Dr. Heligman’s conclusions may have
been “predetermined” as of the time of the hearings, that fact does not make the conclusions
pretextual. Pretext calls for an inquiry into whether the suspected dishonesty and fraud
were the real reasons for CSXT’s decision. And nothing that the plaintiffs have pointed
to calls into question whether suspected dishonesty and fraud were Dr. Heligman’s real
reasons for pursuing the investigation and employee discipline. Dr. Heligman pursued the
investigation of the plaintiffs because of the clear pattern he discerned with the deluge of
COII forms in the context of the furlough notices, and surely such evidence well supported
his suspicion; indeed, there is no evidence that anything else contributed to his decision.
And the fact that Dr. Heligman expressed his concerns consistently throughout the
investigation, beginning in the middle of July 2017 and continuing through the August
2017 disciplinary hearings, suggests that a genuine concern regarding potential fraud “truly
was the reason for the plaintiff[s’] termination.” Hawkins v. PepsiCo, Inc., 203 F.3d 274,
279 (4th Cir. 2000) (quoting DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir.
1998)). Moreover, when an employer gives a legitimate, nondiscriminatory reason for
terminating an employee, “it is not our province to decide whether the reason was wise,
fair, or even correct,” so long as it was the genuine reason for the employment decision.
Id. (emphasis added) (quoting DeJarnette, 133 F.3d at 299).
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Even more importantly, it was not Dr. Heligman who made the decision to terminate
the plaintiffs’ employment. “In assessing pretext, a court’s focus must be on the perception
of the decisionmaker . . . .” Holland v. Wash. Homes, Inc., 487 F.3d 208, 217 (4th Cir.
2007) (emphasis added) (quoting Azimi v. Jordan’s Meats, Inc., 456 F.3d 228, 246 (1st Cir.
2006)). Dr. Heligman formed his suspicion and accordingly initiated the disciplinary
process provided by the collective bargaining agreement, which involved hearings and
appeals. It was only at the conclusion of the hearings that Vice President Barr, based on
the record of those proceedings, made the decision to terminate the plaintiffs’ employment,
including each of the six remaining plaintiffs here. He explained that he made the decision
based on suspected fraud as evidenced by the pattern of similar leave requests in the context
of the furlough notices and the employees’ failure to submit additional documentation from
other medical providers to substantiate their medical claims in response to the disciplinary
investigations. And the plaintiffs have failed to put forward any evidence to suggest that
this was not the actual reason for Barr’s decision. Indeed, the plaintiffs elected to present
no evidence at the hearings aside from the documentation generated by Dr. Johnson and
Dr. Carey.
While we make no determination as to whether the six plaintiffs here actually
engaged in dishonesty or fraud, the pattern of similar leave requests in the context of the
furlough notices was certainly ample evidence to raise legitimate suspicions of benefits
abuse, and therefore we do conclude that the plaintiffs have failed adequately to challenge
that suspected dishonesty was CSXT’s actual reason for terminating the plaintiffs’
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employment. Accordingly, we affirm the district court’s grant of summary judgment to
CSXT on the plaintiffs’ discrimination and retaliation claims under the four statutes.
III
The plaintiffs also contend that the district court erred in granting summary
judgment on their FMLA interference claim. They argue that when CSXT received the
COII forms, the FMLA required the company to treat their requests as FMLA leave
requests and to provide them with notice of their FMLA rights, which CSXT did not do.
The district court nonetheless granted CSXT’s motion for summary judgment, concluding
that CSXT did not interfere with the plaintiffs’ FMLA rights because it honestly believed
that the plaintiffs were seeking leave for an improper purpose. The plaintiffs contend,
however, that an honest belief is no defense to an FMLA interference claim and that they
otherwise advanced a legitimate FMLA interference claim.
As a threshold matter, plaintiffs argue that CSXT did not file a motion for summary
judgment as to their FMLA interference claim and that therefore it was improper for the
district court to consider summary judgment sua sponte without first providing “notice and
a reasonable time to respond.” Fed. R. Civ. P. 56(f). The record, however, belies their
argument. CSXT stated in its motion for summary judgment that it was moving “for
summary judgment as to each of the ten (10) causes of action” in the operative complaint,
including the count for “denial of benefits and interference” under the FMLA. (Emphasis
added). It also expressly, albeit briefly, discussed FMLA interference in its supporting
memorandum. Finally, the parties discussed the FMLA interference claim at length during
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the hearing on the summary judgment motion, and the plaintiffs made no objection
claiming that the issue was not before the court. The FMLA interference claim was clearly
presented to the district court for summary judgment and properly addressed by the court.
On the merits, the plaintiffs contend that CSXT had a duty under the FMLA to treat
their COII forms as requests for FMLA leave and to notify them of their rights in that
regard. The record shows that CSXT did neither, giving the plaintiffs a plausible claim for
relief. In rejecting this claim, the district court applied an “honest belief” doctrine, as
applied by the Seventh Circuit in Kariotis v. Navistar International Transportation Corp.,
131 F.3d 672 (7th Cir. 1997). In Kariotis, the court held that an employer does not interfere
with an employee’s exercise of FMLA rights when it terminates an employee based on the
honest belief that the employee is not taking FMLA leave for an approved purpose,
regardless of whether such belief is correct. Id. at 681.
The law is unsettled on application of the honest belief doctrine as a defense to an
FMLA interference claim. See Crouch v. Whirlpool Corp., 447 F.3d 984, 986 (7th Cir.
2006) (reiterating that “an employer’s honest suspicion that the employee was not using
his medical leave for its intended purpose is enough to defeat the employee’s . . . FMLA
claim”); Medley v. Polk Co., 260 F.3d 1202, 1207–08 (10th Cir. 2001) (recognizing the
existence of an “honest belief” defense to an FMLA retaliation claim and approving jury
instruction on the same); Parker v. Verizon Pa., Inc., 309 F. App’x 551, 563 (3d Cir. 2009)
(recognizing that honest belief doctrine applies in an FMLA interference claim). And we
have not yet addressed the issue. We need not, however, do so here because the plaintiffs’
claim otherwise fails. Nonetheless, CSXT argues that even if it failed to treat the COII
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forms as FMLA requests and to provide notices of FMLA rights, the plaintiffs were not
prejudiced by those failures. To address this argument, we first turn to the statutory
provisions involved.
The FMLA entitles eligible employees to take “12 workweeks of leave” during a
12-month period for a qualifying “serious health condition that makes the employee unable
to perform the functions of” his job. 29 U.S.C. § 2612(a)(1)(D). “When an employee
requests FMLA leave, or when the employer acquires knowledge that an employee’s leave
may be for an FMLA-qualifying reason, the employer must notify the employee of the
employee’s eligibility to take FMLA leave within five business days, absent extenuating
circumstances.” 29 C.F.R. § 825.300(b)(1). If the employer determines that the requested
leave will not be designated as FMLA-qualifying, “the employer must notify the employee
of that determination.” Id. § 825.300(d)(1). Employers are also required to furnish a
“rights and responsibilities” notice to the employee “detailing the specific expectations and
obligations of the employee and explaining any consequences of a failure to meet these
obligations” with respect to their FMLA leave. Id. § 825.300(c)(1).
These rights are “prescriptive,” and claims for violations of them are known as
“interference” or “entitlement” claims, arising under 29 U.S.C. § 2615(a)(1). Yashenko,
446 F.3d at 546; see also 29 U.S.C. § 2615(a)(1) (stating that it is “unlawful for any
employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any
right provided under” the FMLA). And an employee has a cause of action against his
employer under 29 U.S.C. § 2617 when he can prove that (1) the employer interfered with
his exercise of FMLA rights and (2) the interference caused the employee prejudice. See
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Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). Thus, to make out an
FMLA interference claim, an employee must demonstrate (1) that he is entitled to an
FMLA benefit; (2) that his employer interfered with the provision of that benefit; and
(3) that the interference caused him harm. Adams v. Anne Arundel Cnty. Pub. Schs., 789
F.3d 422, 427 (4th Cir. 2015). The FMLA “provides no relief unless the employee has
been prejudiced by the violation.” Ragsdale, 535 U.S. at 89 (emphasis added).
In contending that they met the prejudice requirement, the plaintiffs argue that if
they had received the required notice of FMLA rights, they could have (1) structured their
leave differently and (2) “completed the medical certification form and establish[ed] a
dialogue with the CSX medical department who in turn could [have] establish[ed] the
authenticity of the leave, request[ed] clarification or require[d] a second opinion,” as
contemplated by 29 U.S.C. § 2613.
While those might theoretically be possible, there is no evidence in the record before
us regarding how the plaintiffs would have structured their leave differently if CSXT had
provided them with notice of their FMLA rights. The record shows that the plaintiffs
requested two months of medical leave and were indeed able to take that leave — during
which their benefits continued and their jobs were protected — while the disciplinary
process played out.
Further, while § 2613 and its corresponding regulation, 29 C.F.R. § 825.307, set
forth a procedure for what employers “may” and “may not” do if questions arise regarding
the validity of an employee’s claimed medical condition, neither mandates that employers
must request a certification, clarification, or second opinion. See 29 U.S.C. § 2613(a) (“An
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employer may require that a request for leave . . . be supported by a certification issued by
the health care provider of the eligible employee” (emphasis added)); see also 29 C.F.R.
§ 825.307(a) (“[T]he employer may contact the health care provider for purposes of
clarification and authentication of the medical certification . . . after the employer has given
the employee an opportunity to cure any deficiencies” (emphasis added)); id.§ 825.307(b)(1) (“An employer who has reason to doubt the validity of a medical
certification may require the employee to obtain a second opinion at the employer’s
expense” (emphasis added)); Rhoads v. FDIC, 257 F.3d 373, 386 (4th Cir. 2001) (“Because
the term ‘may’ is permissive, the plain language of the statute indicates that an employer
who questions the validity of a certification has the option of seeking a second and third
opinion, without being required to do so”). The fact that CSXT did not request a
certification from the plaintiffs’ healthcare providers or a second opinion from a different
provider therefore does not, without more, establish that plaintiffs were prejudiced by
CSXT’s failure to treat their leave requests as potentially FMLA-qualifying. And while
there may still be “potential pitfalls for an employer who chooses not to pursue a second
opinion,” Rhoads, 257 F.3d at 386, the plaintiffs here had ample opportunity to provide
CSXT with additional evidence of their alleged injuries as part of the disciplinary
investigation, but none of the plaintiffs submitted information from another health care
provider. It is the burden of an employee bringing an FMLA interference claim to establish
prejudice, see Ragsdale, 535 U.S. at 90, and the plaintiffs here have failed to identify any
additional information that they could have provided to authenticate their claimed injuries
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if they had been invited to do so through the mechanism of a formal FMLA certification
rather than the disciplinary process.
In the circumstance of this case, where the plaintiffs sought and were granted two
months of medical leave, during which they were fired for misconduct, we conclude that
the plaintiffs have failed to establish the prejudice element of their FMLA interference
claim. The benefit of the FMLA and notice of FMLA rights could not have precluded the
plaintiffs’ loss of employment for dishonesty. See Vannoy, 827 F.3d at 304–05 (“The
FMLA does not prevent an employer from terminating an employee for poor performance,
misconduct, or insubordinate behavior”).
The FMLA serves the important purpose of allowing employees to take leave for
legitimate family needs and medical reasons, but it is not a right that can be fraudulently
invoked with impunity. In order to maintain the integrity of the FMLA, employers must
be able to investigate and address plausible allegations that employees have been dishonest
in their medical leave claims. In this case, CSXT did just that, and the plaintiffs have
failed to meet their burden of showing that CSXT’s explanation for their termination —
that is, that the company determined that the employees had violated workplace rules
regarding dishonesty — was pretextual. And the plaintiffs have also failed to demonstrate
that if they had been provided notice of their rights under the FMLA, they would have
obtained a different outcome, either with respect to how their leave was structured or
CSXT’s ultimate determination regarding whether their leave request was evidence of
dishonesty.
The judgment of the district court is therefore
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USCA4 Appeal: 21-2051 Doc: 50 Filed: 06/16/2023 Pg: 19 of 19
AFFIRMED.
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