S.C. Johnson & Son doesn’t have to face a trial on a former employee’s claims he was discriminated against after he developed knee and toe issues that forced him to seek medical leave.
The April 12 decision by a federal judge in Michigan is a reminder that workers may be seen as undercutting the legitimacy of a claimed medical condition and need for job-protected leave by engaging in certain activities outside of work. An employer may legally fire or otherwise discipline a worker when off-duty activity indicates fraud or dishonesty in the employee’s leave request or claimed disability.
David Sharrow’s medical leave and disability bias claims against S.C. Johnson were fatally undercut by Facebook posts his supervisor discovered showing Sharrow participated in a charity golf outing and a river tubing trip when he was off work supposedly because of his medical problems, the U.S. District Court for the Eastern District of Michigan said. Sharrow, a senior technician at the company’s Ziploc Slide-Loc plant in Bay City, Mich., had been diagnosed as having a fractured foot and a chronic knee condition. He filed a request for leave under the Family and Medical Leave Act after giving his doctor’s note indicating he needed to be off for two weeks to the S.C. Johnson medical department.
But Sharrow couldn’t explain how the privately held household cleaning supplies company wasn’t justified in believing his golf outing and tubing trip didn’t conflict with his alleged need for medical leave, Judge Thomas L. Ludington said. He therefore failed to raise triable issues on whether S.C. Johnson interfered with his FMLA leave rights when it ultimately denied his medical leave request and issued him a disciplinary notice for violating the company “sick benefit” policy, the judge said. Sharrow was later fired after he allegedly was caught sleeping on the job while still under that discipline.
Sharrow alleged that he only drove in a cart and walked up to the greens to watch other members of his “scramble” team putt. But that failed to show his supervisor didn’t honestly believe he did more than that, the judge said.
Sharrow had told the supervisor he participated in the scramble, a format that requires all members of what are typically four-person teams to each hit a shot, pick the best one, and repeat the process until they’ve completed a hole. Even if Sharrow had told the supervisor more than that he “participated” in the outing and that he just “rode around in the cart,” that still wouldn’t have been the same thing as saying he hadn’t actually played golf, Ludington said.
The supervisor “would not have reasonably concluded that he simply observed other players golfing while he remained in the cart,” the judge said. Thus, Sharrow’s attempted explanations for his activities didn’t undermine the photographic evidence on Facebook or his own admissions to his supervisor, Ludington said.
The parties didn’t immediately respond April 12 to Bloomberg Law’s requests for comment.
The Mastromarco Firm represented Sharrow. Foley & Lardner LLP represented S.C. Johnson.
The case is Sharrow v. S.C. Johnson & Son, Inc., 2018 BL 129592, E.D. Mich., No. 17-cv-11138, summary judgment granted 4/12/18.