/>iOn February 5, 2021, the U.S. District Court for the District of Delaware granted summary judgment in Snyder v. E.I. DuPont de Nemours, Inc. and Company, No. 18-1266, holding that DuPont did not terminate the employment of its employee, Peggy Snyder, in retaliation for her use of leave under the Family and Medical Leave Act (FMLA).
Background
Snyder worked for DuPont as a technician for 19 years, during which she took “approximately 20 FMLA and short-term disability leaves of absence.” DuPont granted every request she made for a leave of absence. Following each leave, Snyder was returned to the same or similar position with the same salary and benefits.
In March 2016, Snyder underwent posterior tibial tendon reconstruction on her left foot. She was approved for approximately three months of FMLA and short-term disability leave to recover from surgery. As set forth in her doctor’s FMLA healthcare provider certification form, she was directed not to bear weight on her foot for 10 weeks following her surgery.
During Snyder’s leave, a coworker told the area manager that he saw Snyder walking around at a pool party. The coworker also reported that “two-thirds of the [work]site, countless people” told him that Snyder routinely took “advantage of DuPont’s short-term disability program and was acting in a manner inconsistent with a need for disability leave.” Accordingly, DuPont hired an investigative agency to conduct surveillance on Snyder to “ensur[e] that [Snyder] abided by the restrictions [of her doctor] on and off-duty.” (Brackets in the original.)
Through video surveillance, Snyder was observed “(1) repeatedly climbing into her [vehicle] and driving, (2) walking around a backyard and down stairs, and (3) lifting a small child off the ground.” This behavior was inconsistent with both Snyder’s physician’s orders to remain “non weightbearing” and to avoid driving, and with her reports to her supervisor that “all she does is lay around … in pain,” that she was unable to “come into work and sit down,” and that she could barely walk. (Ellipses in original.) In August 2016, Snyder reported to DuPont Medical that her “left foot bec[a]me very pain[ful]” and that her foot was “swollen.” (Brackets in the original.) Contemporaneously, the investigator observed Snyder “walking without any apparent physical issues,” “getting a manicure and pedicure,” and “mowing her lawn on a riding tractor for 90 minutes.”
In September 2016, DuPont fired Snyder “because she ‘gave [DuPont] inaccurate information[,] … did not follow her own doctor’s orders …, and [did] not behav[e] in a manner that’s consistent with [her] recovery.’” (Brackets and ellipses in original.) In August 2018, Snyder filed a six-count lawsuit, of which five counts were dismissed by stipulation. The remaining count, FMLA retaliation, was decided in DuPont’s favor on summary judgment.
The Court’s Analysis
The court analyzed Snyder’s FMLA retaliation claim under the McDonnell Douglas burden-shifting framework. Under that framework, Snyder was first required to show that: “(1) she invoked her right to FMLA-qualifying leave, (2) she suffered an adverse employment decision, and (3) the adverse action was causally related to her invocation of rights.” Snyder alleged two adverse employment actions: DuPont’s decision to surveil her and the termination of her employment.
For her termination claim, rather than rely on temporal proximity, Snyder relied on DuPont’s alleged antagonism and animus toward her to establish the requisite causal link. The court did not find a pattern of antagonism, noting that (i) Snyder took approximately 20 FMLA and short-term disability leaves without negative consequence; (ii) DuPont never denied Snyder a request for FMLA leave; and (iii) Snyder was consistently returned to the same or similar position with the same benefits and salary upon the expiration of her leaves of absence. The court also noted that even if Snyder had established her prima facie case of FMLA retaliation, DuPont had offered a legitimate, nondiscriminatory reason for terminating her employment, for which Snyder had failed to establish pretext.
Snyder’s pretext arguments largely centered around (i) DuPont’s progressive discipline policy, (ii) DuPont’s alleged failure to verify with Snyder’s treating physician that she had violated his instructions, (iii) her attempts to discredit the video evidence, (iv) testimony by the plant manager which Snyder alleged was demonstrative of animus, and (v) repeated efforts by DuPont to convince Snyder to retire.
Regarding the progressive discipline policy, the court noted that the policy expressly allowed for the immediate termination of the employment of any employee. With respect to her treating physician, the court noted that “Snyder admit[ted] that DuPont’s medical department ‘monitored her condition’ and ‘communicated with [her physician’s] office regularly with continual emails and messages.’” The court held that “[t]he Attending Physician’s Statements and the video surveillance provided to DuPont gave it good reason to believe that Snyder was misrepresenting her condition and violating her doctor’s orders.” Regarding the video evidence, the court was persuaded by the video that captured Snyder bearing weight, driving her vehicle, and lifting a child—all while her doctor had “ordered [her] not to drive and not to engage in weight-bearing activities.” Next, the court considered whether there was animus arising from the plant manager’s testimony that Snyder “would have immediately saved … the minimum amount of time to get the FMLA clock reset and then immediately go back out and then she would return to work again.” The court noted that the comment was made more than three years after Snyder’s discharge and that it was nothing more than a “‘stray remark[].’” Finally, the court, analyzing three letters from DuPont’s human resources manager “‘request[ing] that she resign’ and ‘implying she should apply for ‘Total & Permanent Disability Leave,’” concluded that such letters, which the company had sent to Snyder more than a decade prior to her discharge, were not evidence of animus.
For the surveillance claim, DuPont conceded that “surveillance has been deemed by courts to be a per se adverse employment action,” and it did not dispute that Snyder had established a prima facie case of retaliation based on the surveillance. Instead, DuPont focused on the lack of pretext. The court found that DuPont had stated a legitimate, nondiscriminatory reason for surveilling Snyder, noting that several employees had cast doubt on her disability leave and that “‘[n]othing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.’” (Brackets in the original.) As with her termination claim, Snyder relied on DuPont’s progressive discipline policy, in addition to arguing hearsay. Again, the court did not find evidence of pretext.
Key Takeaways
This decision provides helpful guidance to employers that question whether their employees are abusing leave. It is not uncommon for coworkers to question the legitimacy of an employee’s short-term disability leave after witnessing inconsistent behavior. In such a scenario, employers may want to consider whether to implement surveillance and ascertain whether the employee is acting in a manner inconsistent with his or her own physician’s orders regarding physical limitations. Additionally, employers may want to revisit their progressive discipline policies to ensure they allow for immediate termination of employment at the employer’s discretion.
