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Fifth Circuit Finds Employee’s FMLA Retaliation Claim Doomed By Proof That Employer Fired The Employee Based On A Good Faith Belief She Had Been Dishonest About Being Unable To Work Due To Illness

November 13, 2018

In DeVoss v. Southwest Airlines Co., 903 F.3d 487 (5th Cir. 2018), attached here, DeVoss, an airline flight attendant called in late to work and invoked a commuter policy to justify her tardiness. After she was told that the commuter policy did not apply, and that she would be assessed attendance points for being late, DeVoss stated that she was sick, and missed three days of work. Southwest investigated (including by reviewing the recording of the at-issue call), concluded that DeVoss had lied about being sick, and fired her. DeVoss sued, claiming that the real reason she was fired was because she had allegedly taken FMLA protected leave a month before she had been terminated. The district court threw DeVoss’s case out on summary judgment. DeVoss filed an appeal to the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, Louisiana.

The Fifth Circuit affirmed the district court’s ruling. The court observed that what mattered is not whether DeVoss had actually been dishonest or not, but whether Southwest believed in good faith that she had been dishonest, and terminated her employment based on that belief. In reviewing the evidence, and time line of events, the court found that there was no evidence to suggest that Southwest did not truly believe that DeVoss had lied about being sick, and that it had fired her based on that good faith belief. As such, whether or not DeVoss had actually been dishonest, the district court was correct to grant summary judgment in Southwest’s favor.

This case demonstrates that in FMLA retaliation cases, and many other types of cases, when an employer takes an adverse employment action based on a truly honest, good-faith belief that an employee has committed a terminable offense, a claim of retaliation or discrimination will not be successful.

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