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Wrongful Termination: Employee's failure to appear for drug test dooms FMLA claim


You may be hesitant to take adverse action, however well deserved, against an employee who is on or has just returned from leave covered by the Family and Medical Leave Act (FMLA). There’s good reason for that hesitance: It’s illegal to interfere with an employee’s FMLA rights or retaliate against him for exercising those rights.

Although employers aren’t prohibited from taking adverse action against an employee for legitimate reasons unrelated to FMLA leave, an adverse action implemented soon after leave is taken might be deemed retaliatory. In this recent decision from the Sixth U.S. Circuit Court of Appeals (which covers Kentucky), an employer was able to convince a jury — and later the appellate court — that it had a legitimate reason for terminating an employee who wanted to return to work after FMLA leave. Read on to see what led to this favorable result.


Robert Mitchell, an employee with the Wayne County Sheriff’s Department, was informed on February 22, 2005, that he would need to appear the next morning for a random drug test at a local hospital. The evening before his drug test, he allegedly slipped on some ice and injured his back. The next morning, he called an unidentified person in the sheriff’s department and said he “had a test” scheduled for that day but wouldn’t be able to appear for it. He then sought treatment from a chiropractor.

While at the chiropractor’s office, Mitchell filled out FMLA paperwork covering the period from February 23 to March 14 and then faxed it to the sheriff’s department. On March 7, while he was still on leave, he received a phone call from Commander Karen Kreyger informing him that he would be disciplined for not appearing for the scheduled drug test.

On March 24, after seeking and receiving an extension of his FMLA leave, Mitchell informed the sheriff’s department that he was ready to return to work. The following day, however, he was suspended for missing the drug test.

An administrative review hearing with Kreyger and Mitchell’s union representative was held on April 1. After the review, Mitchell was told that he could return to work as long as he agreed to receive random drug testing for the next year. In addition, Kreyger would be able to place him on any shift she chose, regardless of his seniority rights. He refused the potential change in shift assignment, and Kreyger terminated his employment.

On September 27, Mitchell filed a complaint in federal district court against the county and others alleging violations of the FMLA and state law. He claimed that Kreyger’s actions constituted interference with and retaliation for the exercise of his FMLA rights. The case was tried before a jury, which returned a verdict in favor of the county. Mitchell asked the court to grant a new trial, but it refused. He then appealed to the Sixth Circuit, alleging that the trial court had erred in failing to grant him a new trial.

Sixth Circuit’s ruling

The Sixth Circuit first noted that to prevail on a claim that his employer interfered with his FMLA rights, an employee must prove that (1) he was an FMLA-eligible employee, (2) the employer was an “employer” as defined by the FMLA, (3) he was entitled to leave under the FMLA, (4) he gave notice of his intent to take leave, and (5) the employer denied FMLA benefits to which he was entitled. The parties agreed that the first four elements were met, so the court focused on the fifth one.

Quoting from earlier case law, the Sixth Circuit noted that “an employer who interferes with an employee’s FMLA rights will not be liable if the employer can prove it would have made the same decision had the employee not exercised his FMLA rights.” In other words, “interference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.”

Turning to the facts of the case, the court found that there was sufficient evidence for the jury to conclude that the county’s decision to terminate Mitchell was based on a legitimate reason unrelated to his FMLA leave: He had disobeyed an order regarding a scheduled drug test. The court was persuaded by the following facts:

  1. When Mitchell called in his absence on February 23, he mentioned a “test” but couldn’t recall whether he referred to a “drug” test.

  2. His notification was insufficient in any event because it wasn’t given to the correct person.

  3. Kreyger was adamant in her testimony that the decision to terminate Mitchell was based on his failure to appear for the drug test or notify the sheriff’s department that he would be unable to appear. Although she was “suspicious” that he might be manipulating the system, she didn’t take that suspicion into account when she terminated him.

  4. Mitchell had previously taken FMLA leave without incident several times.

The court found that the retaliation claim failed for the same reason as the interference claim, even though an FMLA retaliation claim is different from an interference claim. (The employer’s intent is relevant to a retaliation claim but not to an interference claim. In the retaliation context, liability is imposed on employers that take adverse action against employees because they invoked FMLA rights. Liability can be imposed in an interference case regardless of the employer’s motivation.)

In this case, the jury determined that Mitchell was terminated for failing to follow an order or properly report that he couldn’t follow it. The Sixth Circuit found that there was sufficient evidence in the record for such a finding, and the jury verdict therefore should be upheld. Mitchell v. County of Wayne, 2009 WL 21922283 (6th Cir., July 24, 2009).


Although it’s tempting to read a case like this one and conclude that future cases with similar facts will always turn out the same, remember that the Sixth Circuit merely held that the jury hadn’t necessarily made the wrong decision based on the facts introduced at trial. A different jury listening to the same facts might have reached the opposite conclusion, and the Sixth Circuit might have found sufficient evidence at trial to support that decision as well.

There will always be an element of potential legal risk anytime you contemplate taking adverse action against an employee soon after he requests or takes FMLA leave. Whether you go forward with the adverse action or take a more cautious approach and forgo the adverse action (at least temporarily) will depend on all of the relevant facts and circumstances. It’s wise to seek the advice of experienced employment counsel when making that decision.

If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department.

Copyright 2009 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

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