This is one of the few federal cases that supports terminating an employee while on a leave of absence however watch for the twist at the end! The employee applied for, and was granted, an initial 21-day FMLA leave, and an intermittent leave thereafter upon his return to work. Thereafter his medical issue continued and ultimately, he decided to take short-term disability leave, which he intended to roll over into long-term disability and retirement.
Prior to leaving the company, the employer discovered that he had “removed” a plethora of computer assets from his workplace. According to the police report, he took four laptops, one iPad, three hard drives, one portable DVD-R/RW and RAM Drive, one mouse, and an AC adapter for one of the laptops. The company also discovered that he had used unauthorized third-party software to overwrite more than 27,000 files on the one hard drive he left at his desk. Needless to say, the employer cut the employee’s retirement plans, and terminated his employment. It also emailed one of its computer vendors to advise that it had “launched an internal investigation to determine if the employee had been operating a side business performing computer support while on the clock for the employer.
The Court had little difficulty concluding that employee’s disability played no role in the termination decision. The court reasoned that it was no surprise that the removal of the employer’s property without authorization could lead to the employee’s termination especially since the employer has an anti-theft policy. In addition, they were able to support their decision because they had video of the theft.
Furthermore, according to the facts, the employee had removed two hard drives from the desktop computer, took them home then used an unauthorized program to overwrite over 27,000 files from his workstation’s computer.
As a result, the former employee lost his disability discrimination, and FMLA interference and retaliation claims.
However, note this. The employer was not able to convince the court to dismiss the former employee’s defamation claim resulting from the post-termination comments made to its computer vendor regarding the reason the former employee was terminated.
What lessons can we learn from this case?
Employers must tread very carefully when communicating personnel decisions, or the facts underlying them, to third parties. The employer really did not have a compelling need to disclose its beliefs about their former employee’s wrongdoing. And I’m not sure it disclosed anything untruthful (at least as the facts are presented in the case). But the court was not necessarily convinced, and held that issue over for trial.
In other words, be careful what you communicate about employees and their terminations. Sometimes (most times), less is very much more.