If the Facebook photos were not posted, would Advantage still have been justified in terminating her? Why or why not?

In 2008, Advantage hired Jaszczyszyn as a part-time employee and she was eventually promoted to a full-time position in Advantage’s billing department. After a period of time in which Jaszczyszyn failed to report for work due to back pain, Advantage’s human resources department informed Jaszczyszyn that she did not have enough paid time off to cover her absences and recommended that she submit FMLA forms to formalize the request. One necessary form was a Certification of Health Care Provider (Certification) to show that she suffered from a serious medical condition. Although the Certification submitted to Advantage reflected a need for intermittent FMLA leave (to be taken whenever she was having a back pain flare up) Jaszczyszyn treated the leave as continuous, open-ended, and effective immediately upon Advantage’s receipt of the Certification, never returning (or attempting to return) to work. 

One month after submitting the certification, Jaszczyszyn attended Pulaski Days, a local Polish heritage festival. Over a period of at least eight hours, she visited three Polish Halls with a group of her friends. One friend shared approximately 127 pictures from that day with Jaszczyszyn, who posted, on her Facebook page, pictures featuring herself dancing and laughing. Because Jaszczyszyn was Facebook friends with several of her co-workers, the pictures were visible to them. One of those co-workers, upset about Jaszczyszyn’s behavior, brought the photo-graphs to Advantage’s management. At a meeting between Jaszczyszyn and Advantage management, she could not explain the discrepancy between her claim of complete incapacitation and her activity in the photos. Advantage gave Jaszczyszyn her notice of termination at the conclusion of the meeting.

Jaszczyszyn sued Advantage, alleging that she was terminated in retaliation for exercising her rights pursuant to the FMLA. The trial court granted Advantage’s Motion for Summary Judgment and Jaszczyszyn appealed.

The U.S. Court of Appeals for the Sixth Circuit affirmed the trial court’s decision in favor of Advantage. The court held that for a retaliation claim, a plaintiff must establish that: (1) she was engaged in an activity protected by the FMLA; (2) the employer knew that she was exercising her rights under the FMLA; (3) after learning of the employee’s exercise of FMLA rights, the employer took an employment action adverse to her; and (4) there was a causal connection between the protected FMLA activity and the adverse employment action. In this case, the court ruled that Jaszczyszyn failed to prove any causal connection. The evidence of fraud, in and of itself, was sufficient justification for the termination and was not related to her legitimate rights under the FMLA.

“As in [precedent cases], Advantage ‘right-fully considered workplace [FMLA] fraud to be a serious issue,’ and its termination of Jaszczyszyn because of her alleged dishonesty constituted a non-retaliatory basis for her discharge. 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 [not the actual reason for the termination], 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. We therefore conclude that the district court did not err in granting summary judgment to Advantage.”