March 20, 2019

Tenth Circuit: Employee’s Untruthfulness and Abuse of Sick Leave Justified Termination Despite Qualifying for FMLA Leave

The Tenth Circuit Court of Appeals issued its opinion in Dalpiaz v. Carbon County, Utah on Friday, July 25, 2014.

Bridget Dalpiaz worked as the benefits coordinator for Carbon County, Utah, from February 1995 until her termination in September 2009. As benefits coordinator, Dalpiaz scheduled doctor’s appointments for new county employees and was very familiar with the process for taking FMLA leave. She had favorable evaluations and no disciplinary history until she was in a car accident in April 2009.

After her motor vehicle accident, Dalpiaz missed work from April 3 through July 13, 2009, and she returned on a limited basis on July 13. Because of the extended absence, her supervisor requested that she submit a request for FMLA leave and mailed her a form in May 2009. Dalpiaz did not respond and did not submit the form. The supervisor emailed Dalpiaz on June 12, requesting that she return the FMLA form as soon as possible. Dalpiaz did not respond. The county attorney sent Dalpiaz a letter on June 30, advising her that she must return the form by July 10. Dalpiaz returned the form at 4:22 p.m. on July 10. On July 13, Dalpiaz returned to work for two hours a day, two days a week, per the restrictions set by a spine specialist she saw.

While she was gone from work, her supervisor received eight written statements from coworkers that Dalpiaz was engaging in physical activities that seemed inconsistent with her claims for injury. Because of these reports, the county requested that Dalpiaz submit to an IME and gave her three physicians from which to choose for this exam. Dalpiaz never responded. The county attorney then sent Dalpiaz a letter requesting her to schedule the exam by August 3, and advising her that failure to schedule the exam may result in disciplinary action. Dalpiaz attempted to set the exam but was told she needed a referral. Instead of obtaining the referral, she sent a letter to the county attorney regarding the referral and inquiring if it was now county policy to force employees to submit to IMEs. Eventually, Dalpiaz was terminated for five reasons – (1) failure to timely complete the FMLA forms; (2) failure to schedule an IME; (3) significant evidence of untruthfulness regarding her injuries; (4) abuse of sick leave; and (5) personal use of a camera belonging to the county. Dalpiaz filed a federal complaint on six grounds, the sixth alleging the county interfered with, restrained, and/or denied her right to FMLA leave. The district court granted summary judgment to the county on all counts.

Dalpiaz appealed only the grant of summary judgment related to the interference with FMLA leave. The Tenth Circuit first determined that the type of FMLA at issue in this case was retaliation, even though Dalpiaz only pled interference in her complaint. In response to the county’s claims that Dalpiaz waived the issue of retaliation by not pleading it in her complaint, Dalpiaz asserted that she did not need to specifically claim retaliation to preserve the issue. The Tenth Circuit disagreed with Dalpiaz, remarking that nothing in her complaint referenced retaliation, and instead she tracked the language pertaining to interference.

Examining her claims under the interference context, the Tenth Circuit found that Dalpiaz was entitled to FMLA leave and the county may have taken an adverse action which interfered with her right to FMLA leave. However, as to the third prong of the interference test, whether her termination was related to the exercise of her FMLA rights, the Tenth Circuit agreed that the county would have terminated Dalpiaz regardless of her FMLA status. The Tenth Circuit noted ample evidence in the record of the county’s sincere belief in Dalpiaz’s untruthfulness regarding the extent of her injuries and abuse of sick leave. The Tenth Circuit also noted that the county was justifiably concerned with Dalpiaz’s failure to return the FMLA forms “as soon as possible” as directed by her supervisor, instead choosing to return the forms at the last minute. Dalpiaz also failed to make an IME appointment as directed and did not put forth a good faith effort to make the appointment. The evidence, taken in the light most favorable to Dalpiaz, supported the county’s termination. The Tenth Circuit affirmed the district court’s grant of summary judgment.

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