A Capehart Scatchard Blog

Facebook Postings by Employee Doom Her FMLA Claim

By on February 1, 2013 in FMLA with 0 Comments

Sara Jaszczyszyn worked as a Customer Service Representative for Advantage Health Physician Network.  On August 31, 2009, she saw her physician about a recurrence of back pain related to a prior car accident and two prior surgeries.  She was unable to work the next day and presented a Work Release Form on September 3, 2009 from her physician, who indicated that she was totally incapacitated.

Jaszczyszyn returned to work on September 8, 2009. Her doctor submitted an FMLA certification on September 9, 2009, indicating that Jaszczyszyn was having intermittent flare-ups of back pain which, when active, made it impossible for her to work.  Jaszczyszyn seemed to treat the intermittent leave certification from her doctor as approval for continuous leave and stopped working on September 10, 2009.  She never returned to work.  She saw her doctor again on September 22, 2009, and the doctor indicated that she was disabled from September 10, 2009 to October 5, 2009.  Eight days later, he amended that note and said she was disabled from October 5, 2009 to October 26, 2009.

On October 3, 2009, Jaszczyszyn attended Pulaski Days, a Polish heritage festival.  She visited a number of Polish Halls with a group of her friends for a period of eight hours.  One friend shared 127 photos from the day’s events with Jaszczyszyn, who then posted them on her Facebook.  There was some dispute whether she was dancing or merely standing between two friends in one posting.

During that same weekend, Jaszcyszyn left several voicemails at work indicating that she would not be coming to work on Monday due to the pain she was in.  Some of her friends at work saw the postings on her Facebook site and shared them with her supervisor.  Jaszcyszyn was called into work to attend a meeting to discuss, in part, the postings on her Facebook.  She addressed her presence for eight hours at the festival by saying that no one told her this was prohibited.  She also said she was in pain at the festival.  When asked how she reconciled her activities at the festival with the fact that she was asserting she was too incapacitated to come to work, she was silent.

The company terminated her employment as a result of its concerns about FMLA fraud.  Jaszczyszyn then sued for alleged retaliation under the FMLA.  The Court noted that the company properly considered workplace fraud to be a serious issue.  The Court rejected her claim for retaliation:

While Jaszczyszyn relies heavily upon a significant amount of after-the-fact medical evidence (such as the deposition of her treating physician) in trying to cast Advantage’s justification as pretextual, Advantage’s investigation was adequate and turned in large part on Jaszczyszyn’s own behavior at the termination interview, which she does not address at all.  She did not refute Advantage’s honest belief that her behavior in the photos was inconsistent with her claims of total disability.  Thus, as a result of her fraudulent behavior, her claim of FMLA retaliation fails.

This case demonstrates once again that Facebook postings can often produce valuable evidence for employers in a variety of legal areas.  Further, it shows how important it is to read medical certifications carefully.  The initial certification was for intermittent leave, which promptly led to continuous leave contrary to the initial certification.  The case may be found at Jaszczyszyn v. Advantage Health Physician Network, 2012 U.S. App. LEXIS 23162 (6th Cir. 2012).

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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