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The Wagner Law Group

The Wagner Law Group is a nationally recognized practice in the areas of ERISA and employee benefits, estate planning, employment, labor and human resources and investment management.


Established in 1996, The Wagner Law Group is dedicated to the highest standards of integrity, excellence and thought leadership and is considered to be amongst the nation's premier ERISA and employee benefits law firms. The firm has seven offices across the country, providing unparalleled legal advice to its clients, including large, small and nonprofit corporations as well as individuals and government entities worldwide. The Wagner Law Group's 29 attorneys, senior benefits consultant and four paralegals combine many years of experience in their fields of practice with a variety of backgrounds. Seven of the attorneys are AV-rated by Martindale-Hubbell and six are Fellows of the American College of Employee Benefits Counsel, an invitation-only organization of nationally recognized employee benefits lawyers.  Seven of the firm's attorneys have been named to the prestigious Super Lawyers list for 2017, which highlights outstanding lawyers based on a rigorous selection process.




Contact Info

The Wagner Law Group


  Integrity | Excellence



Tel: (617) 357-5200 

Fax: (617) 357-5250 

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Boston, MA 02110


Washington, D.C.

Tel: (202) 969-2800


Fax: (202) 969-2568

 800 Connecticut Avenue, N.W.

Suite 810

Washington, D.C. 20006



Tel: (847) 990-9034

Fax: (847) 557-1312

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Chicago, IL 60603



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Tel: (561) 293-3590
Fax: (561) 293-3591
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Palm Beach Gardens, FL 33418



Tel: (813) 603-2959

Fax: (813) 603-2961

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Tampa, FL  33602 


San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

300 Montgomery Street

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San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
25 W. Moody Avenue
St. Louis, MO  63119 








 Employer's Honest Belief of FMLA Abuse Defeats Employee's

Retaliation Claim

November 1, 2017




The Third Circuit Court of Appeals, in Capps v. Mondelez Global, LLC, has ruled that an employer's decision to terminate an employee based on its honest belief that the employee misused FMLA leave is sufficient to defeat a FMLA retaliation claim, even if the employer's belief is mistaken.  


Background. In Capps, the employer granted an employee intermittent FMLA leave to care for complications associated with his recent hip replacement surgery. The employee took intermittent leave on several days, and on one such day, he was arrested for driving while intoxicated ("DWI"). 


The employer's Human Resources Manager became aware of the employee's DWI conviction through a newspaper article and subsequently reviewed the employee's attendance record to confirm whether he had any absences during the timeframe of his arrest. In so doing, the employer determined that the employee's arrest dates and court dates coincided with days that he had taken intermittent FMLA leave. The HR manager confronted the employee with this information. In response, the employee produced a letter from his physician confirming that he was absent (on the dates at issue) due to his "hip pathology."


The employer subsequently terminated the employee based on its belief that the employee had violated its Dishonest Acts Policy. In turn, the employee filed a grievance to contest the termination, and the employer offered to reinstate him without back pay. Nonetheless, the employee rejected the offer and filed a lawsuit claiming interference and retaliation in violation of the FMLA. The district court hearing the matter dismissed the case in favor of the employer, and the employee appealed to the Third Circuit. 


Third Circuit. On reviewing matter, the Third Circuit noted that, as a general rule, FMLA retaliation claims require proof of the employer's retaliatory intent. Here, the court found that the employee had submitted no evidence to establish this retaliation and that the employer had satisfied its burden to demonstrate a legitimate, nondiscriminatory reason for the employee's termination, i.e., its belief that the employee was misusing FMLA leave.


With respect FMLA interference claims, the Third Circuit court noted that an employee must show that he was entitled to FMLA leave but was denied such benefits by the employer. In the instant case, the employee claimed that his termination amounted to deprivation of benefits and, therefore, FMLA interference. The court found that the employee could not show that FMLA benefits were actually withheld as there was no evidence in the record to confirm that he was denied an FMLA benefit. 


Accordingly, the Third Circuit affirmed the district court's order dismissing the matter in favor of the employer.


Employer Takeaway. To be sure, Capps provides support for employers that take action based on a sincere belief that an employee has misused FMLA leave. Before terminating an employee and invoking this defense, however, an employer must be certain that there is sufficient objective evidence to demonstrate that its belief was honest.








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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.