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Monday, July 21, 2008

Ind. Courts - 7th Circuit issues one Indiana opinion today

In Diana L. Vail v. Raybestos (SD Ind., Judge Young), a 10-page opinion, Judge Flaum writes:

Diana Vail is a former employee of Raybestos Products Company. Vail suffers from migraine headaches, a condition that required her periodically to take medical leave from her job there. In October 2005, Raybestos fired Vail for abusing her leave. Clandestine surveillance had caused Raybestos to suspect that, while supposedly on leave, Vail had actually been working for a family business. This lawsuit followed, alleging that Raybestos had violated both the Family Medical Leave Act, 29 U.S.C. § 2601, et seq., and the terms of a collective bargaining agreement covering Vail. Following discovery, the district court granted Raybestos’s motion for summary judgment on both counts. This appeal followed, and for the reasons set out below, we affirm. * * *

Though the use of an off-duty police officer to follow an employee on leave may not be preferred employer behavior, employers have certainly gone further than Raybestos. See, e.g., Kariotis, 131 F.3d at 681 (hiring private investigators to videotape employee). In any event, the information gleaned from Sergeant Largent’s reconnaissance was sufficient to give Raybestos an “honest suspicion” that Vail was not using her leave “for the intended purpose.” Vail had taken medical leave for her October 6, 2005 evening shift. The next morning, the off-duty police officer saw Vail working for her husband’s lawn-mowing business. Raybestos received this information after it already suspected that Vail was gaming her leave in order to work for her husband’s business. So when it heard information consistent with what they suspected she was doing while on leave, Raybestos decided to terminate her. Vail’s call later that day—after a day of mowing under Sergeant Largent’s gaze—stoked this suspicion. As a result of this “honest suspicion,” Raybestos did not violate Vail’s rights under the FMLA.

Posted by Marcia Oddi on July 21, 2008 12:57 PM
Posted to Ind. (7th Cir.) Decisions