A diabetic employee from the City of Bethlehem, Pennsylvania, was discharged for dishonesty by calling in sick for two days, when she was actually in Las Vegas having her lips and eyebrows permanently tattooed. The employee brought an action against the City, its Mayor, its Director of Human Resources and its Business Administrator (no word if the tattoo artist was a named defendant) claiming: (1) that she was terminated because of her gender and disability (Type-II Diabetes); (2) she was unlawfully retaliated against for seeking an accommodation under the ADA, as well as for having reported harassment under Title VII; (3) that the City interfered with her FMLA rights; and (4) she was denied procedural due process under the Fourteenth Amendment in violation of Section 1983 in light of her public employment.
Although the parent in me says that tattling on a co-worked isn't a “nice thing to do,” somebody saw fit to send an anonymous note to the Mayor stating that the employee was in Las Vegas on vacation rather than on sick leave. Upon her return, the City asked her about her absences and, according to the opinion, the employee lied – telling the City that she had not been to Las Vegas but rather had been in her sick bed at her boyfriend's house. In support of this story, she even produced a note, allegedly from her doctor, confirming her illness. A City investigation ensued and it was determined that the employee lied. As a result, she was terminated for dishonesty.
The City filed a successful Summary Judgment Motion and the employee appealed to the Third Circuit. The Court determined that the employee failed to offer any evidence of discrimination or retaliation, noting that the employee “presented no evidence that any male employee of the City improperly took sick leave, lied to the City about the circumstances surrounding the sick leave, and then attempted to cover up his whereabouts to the City Administration [.]"
The most curious part of the opinion was the discussion regarding the FMLA interference claim. For those of you that agree with me that the FMLA is the most easily manipulated employment-related federal statute, the Court provided strong pro-employer language discussing an employee notice requirements where the leave is foreseeable (an employee must give 30 days advance notice if the need for leave is foreseeable). As the court said, "We agree with the District Court that there is no reason why Ms. Hughes could not have notified the City of the need for FMLA leave either from Las Vegas or when she returned to Pennsylvania." I must confess, I was somewhat surprised and chagrined to see that nowhere in the opinion did the Court acknowledge the fact that going to Las Vegas for a two day vacation to have your eyebrows and lips permanently tattooed for cosmetic reasons may not qualify as a serious health condition.
One last question – aren’t there any tattoo artists in Atlantic City? Isn’t a three hour drive is a whole lot easier than a four hour flight?
[The case is Hughes v. City of Bethlehem, No. 07-2349 (3d Cir. Oct. 2, 2008)]