Employee Tagged Partying in Facebook Photos Loses FMLA Case

Randi Klein Hyatt
Randi Klein Hyatt

An employee who was terminated after captured drinking and partying in Facebook photographs failed on her claims of Family and Medical Leave Act interference and retaliation.  The Sixth Circuit affirmed that the employer was justified in its honest belief that the festival-attending employee was absent fraudulently from work.  Jaszczyszyn v. Advantage Health Physician Network, No. 11-1697 (6th  Cir. Nov. 7, 2012).

Sara Jaszczyszyn began working at Advantage Health Physician Network (“Advantage”) in 2008 as a customer service representative.  In 2009, Jaszczyszyn’s back pain from a previous car accident reemerged, and beginning in late August 2009, Jaszczyszyn was absent from work.  During September and October 2009, Jaszczyszyn submitted various FMLA paperwork to cover various periods of absences because of complete incapacity.

In early October, while out on leave, Jaszczyszyn attended a Polish heritage festival.  Pictures were taken; pictures were uploaded to Facebook; Jaszczyszyn was tagged and co-workers saw the pictures, and advised Jaszczyszyn’s supervisor.  A few days later, Advantage held a meeting with Jaszczyszyn and discussed how the photographs were inconsistent with Jaszczyszyn’s medical paperwork that she was “completely incapacitated.”  During this meeting, Jaszczyszyn never disagreed with Advantage, nor did she provide any explanation for the discrepancy.  At the end of the meeting, Advantage terminated Jaszczyszyn, citing “absenteeism.”

Jaszczyszyn filed suit asserting claims of interference and retaliation under the FMLA.  Advantage prevailed on summary judgment after arguing that it had an “honest suspicion” that Jaszczyszyn abused her leave.

On appeal, Jaszczyszyn failed on her retaliation claim because she provided virtually no evidence of a causal connection between her protected FMLA activity and her termination.  The Court noted that at the termination meeting, Jaszczyszyn offered nothing to refute Advantage’s assertion that the Facebook photographs were inconsistent with her claim of total disability.  The Court found that Advantage had a non-retaliatory reason for terminating her because it had an honest belief that she was fraudulently using leave.

Permitting the employee opportunity to explain the pictures on Facebook was a key choice here; as the employee offered nothing helpful in her defense.  The employer was justified then in determining the FMLA need for leave was not legitimate based on a totality of the circumstances.


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