Third Circuit to Hear DuPont Employee’s FMLA Appeal

On Tuesday, the Third Circuit docketed a Family Medical Leave Act (FMLA) case brought by a former employee of E.I. DuPont de Nemours, Inc. (Dupont). The plaintiff’s single count was dismissed by the trial court at the summary judgment phase earlier this month after she failed to establish a genuine dispute about whether the company fired her discriminatorily.

The District of Delaware court’s Feb. 5 opinion set forth the facts leading up to the plaintiff’s termination. Reportedly, the plaintiff worked for DuPont as a technician in a mostly sedentary job for nearly twenty years. In 2016, she underwent surgery on her foot and was granted time off to recover per the company’s FMLA policy.

The opinion explains that thereafter, the plaintiff’s condition improved she represented to DuPont that she remained too incapacitated to work. Employees reported to management that the plaintiff had been seen walking around at a pool party and had repeatedly taken advantage of DuPont’s short-term disability program over the years.

Upon hearing this news, management decided to have the plaintiff surveilled. Surveillance revealed that the plaintiff was providing DuPont with inaccurate information regarding her condition. She was reportedly seen climbing into her Hummer SUV and driving, walking around a backyard and down stairs, and lifting a small child off the ground. After months of back and forth, a partial return to work, and further surveillance revealed that the plaintiff was acting in a manner inconsistent with a need for disability leave, DuPont fired her.

The plaintiff filed her FMLA lawsuit in 2018. Subsequently, five of her original six counts were dismissed by stipulation. The remaining claim alleged  that DuPont terminated the plaintiff in retaliation for her use of FMLA leave in violation of 29 U.S.C. § 2615(2). The district court reviewed the evidence, noting that nothing in the FMLA prevents employers from ensuring that employees on leave do not abuse the policy.

It held that DuPont provided a legitimate non-discriminatory reason for surveilling the plaintiff, and further that the plaintiff failed to present evidence showing that DuPont’s proffered reasons were belied by discriminatory ones. Three days after the district court entered judgment, the plaintiff appealed.

Snyder is represented by Gary W. Aber and DuPont by Clark Hill LLP and Jackson Lewis P.C.