Skip Page Banner  
Skip Navigation

Judge Finds Nestle Had Honest Belief Fired Worker Used FMLA Leave to Golf, Eat

Monday, August 19, 2013
By Jay-Anne B. Casuga

Nestle USA Inc. did not violate the Family and Medical Leave Act when it fired an Illinois warehouse worker suspected of misusing his intermittent FMLA leave to play golf and eat breakfast, among other things, the U.S. District Court for the Northern District of Illinois ruled Aug. 15 (Hamm v. Nestle USA, Inc., N.D. Ill., No. 12-02427, 08/15/13).

Granting summary judgment to Nestle, Judge Robert M. Dow found that the company established an honest belief of FMLA abuse by Steve Hamm. The judge said the record shows that the Nestle official who fired Hamm based his decision on evidence such as Hamm seeking FMLA leave to take his father to a doctor's appointment only after his supervisor denied a floating holiday request, the scheduling of the purported medical appointment only after a human resources official discovered that no appointment existed for the day in question, and the doctor's office later claiming it was instructed to not provide past appointment dates to Nestle.

In addition, Dow said, the decisionmaker relied on information gathered from Hamm's co-workers, two of whom alleged that Hamm used FMLA leave whenever he had no personal leave, as well as Hamm's history of attendance problems and suspected dishonesty.

Employee Received FMLA Leave to Care for Father
According to the court, Hamm began working for Nestle's DeKalb, Ill., logistics and distribution center in June 2008 and had a 5 a.m. to 3 p.m. shift.

Over the next two years, Hamm received nine warnings and one suspension for attendance problems, as well as a final written warning after a supervisor believed he was being dishonest about committing a safety violation.

In May 2010, Nestle granted Hamm's request for intermittent FMLA to care for his father. The employee and his father authorized the company to obtain FMLA-related information from the father's doctor's office. Hamm used the intermittent leave several times throughout the year.

On Dec. 1, Hamm asked his supervisor, Rick Monas, if he could take a “floating holiday” on Dec. 2. After Monas denied the request, Hamm stated that he needed FMLA leave to take his father to a Dec. 2 medical appointment.

Although he believed Hamm's second request was suspicious, Monas approved the FMLA leave. However, he asked Paula Schultz, an HR specialist, to determine if Hamm's father actually had a Dec. 2 appointment.

After contacting the doctor's office, Schultz reported to Monas that no such appointment existed. Monas suspended Hamm, pending an investigation. Later that day, the doctor's office informed Schultz that a Dec. 2 appointment had been made.

Kevin Coen, an HR manager, instructed Monas to interview Hamm's co-workers. Monas ultimately spoke to four employees. Two of the workers submitted written statements alleging that Hamm said he was using FMLA leave for “events and personal time,” including to go golfing and to spend time with his girlfriend, because he had exhausted all of his paid time off. One of those workers further claimed Hamm once said, “Screw it, I'll use FMLA and hit breakfast with you.”

The two other co-workers interviewed said Hamm did not misuse his FMLA leave.

Schultz again contacted the doctor's office to investigate whether Hamm's father's appointment history matched the days on which Hamm took FMLA leave. However, the office claimed it had been instructed not to provide information to Nestle.

Company officials had a Dec. 9 meeting with Hamm, who purportedly conceded to traveling from a country music festival on a day he had scheduled FMLA leave.

After reviewing investigation reports and considering Hamm's past performance, Coen fired him on Dec. 16.

Hamm brought an FMLA lawsuit against Nestle, but did not specify whether his claim was for interference or retaliation. The company moved for summary judgment.

Judge Finds Honest Belief of FMLA Misuse
Granting Nestle's motion, Judge Dow explained that an employer's honest belief that an employee is not using FMLA leave for its intended purpose “is enough to defeat” either a statutory interference or retaliation claim.

“Even if an employee claims that the investigation into the alleged misconduct was deficient, as long as the employer had an honest suspicion that misuse had occurred--even if that basis is ultimately incorrect and even if the employer 'could have conducted a more thorough investigation'--the employer does not violate the FMLA,” he said.

Here, HR manager Coen considered various reports, interviews, and written statements regarding Hamm's alleged FMLA misuse before he reached a termination decision, the judge said. In response, Hamm primarily challenged the truthfulness of the reports to Coen, Dow said.

“But the issue is not whether Plaintiff in fact misused the FMLA; the ultimate inquiry is whether the decision-maker had an honest belief that the employee abused FMLA leave,” he said.

Although Coen's conclusion was “not infallible,” substantial evidence supports a determination that Coen had an honest belief that Hamm was misusing his FMLA leave, Dow found.

He added that Coen's assessment “appears sound, and certainly defensible, against the backdrop of suspicious occurrences,” including Hamm's past attendance and dishonesty issues, the circumstances surrounding the Dec. 2 medical appointment, and the instruction to the doctor's office to stop providing information to Nestle.

“[T]he Court concludes that Coen's decision to credit the information that he received from multiple individuals over Plaintiff's self-interested denials and the statements of [the two co-workers who denied FMLA abuse] was not discriminatory or retaliatory and did not unlawfully interfere with Plaintiff's rights under the FMLA,” the judge said.

M. Emily Arthur and Aaron B. Maduff of Maduff & Maduff in Chicago represented Hamm. Christopher G. Ward and John L. Litchfield of Foley & Lardner in Chicago represented Nestle.


Text of the opinion is available at

To view additional stories from Bloomberg Law® request a demo now