Retaliation against worker on Family Medical Leave is approved where employer's claim of suspected fraud is unrebutted.

Tom Seeger appealed the summary disposition of his Family Medical Leave Act claim.  He argued that Cincinnati Bell Telephone, CBT, wrongly retaliated against him for taking FMLA leave.    The employer fired him after other employees observed him at an Oktoberfest event while recovering from a herniated disc.  

Under the employer's plan, Seeger received continuation pay while while on FMLA leave. During the leave, Seeger accompanied his wife to a downtown Oktoberfest event that required him to walk approximately ten blocks.  He stayed for about 90 minutes and visited with several co-workers who disagreed with regard to whether he appeared to struggle walking.  Nevertheless, his supervisor terminated his employment after hearing of his appearance at the Oktoberfest event, deeming it inconsistent with his physical restrictions.  Despite a letter from Seeger's physician documenting his objectively-manifested injury and restrictions, CBT refused to reconsider its decision.

On appeal two judges of the Sixth Circuit upheld Seeger's termination, despite the fact that it amounted to retaliation against his for exercising his FMLA rights.  The majority concluded that the employer's "honest belief" that he was committing "disability fraud" eliminated any retaliation claim.  One judge dissented, arguing forcefully that the employer's "honest belief" could not justify its decision, particularly given the employer's failure to consult Seeger's physician before making its decision.