Labor & Employment Law — 11/20/08

Embezzlement on manager's watch prompted discharge, not FMLA leave

A bank did not interfere with the rights of a branch manager who was granted leave under the Family and Medical Leave Act of 1993 (FMLA) months in advance of his knee replacement surgeries, but who was discharged after an audit of his branch revealed that one of the teller’s had embezzled about $570,000 over a several years because his discharge was unrelated to his planned leave, held a federal district court in Pennsylvania. The FMLA does not protect. (Edwards v Harleysville Nat’l Bank, EDPa, 91 EPG ¶43,362)

After the bank conducted an audit of the manager’s branch, one of the teller’s confessed that she had embezzled about $570,000 from the branch over the course of the past six or seven years. She was terminated that day. An internal investigation revealed that the required monthly audits of the vault and the teller’s drawer had not been performed for several years. In addition, the investigation confirmed that the branch officers with responsibility for conducting the audits had been falsely reporting that the audits had been completed. No other bank personnel were found to have knowingly participated in the embezzlement. Following the investigation, the bank fired three branch officers, including the branch manager. The manager filed suit alleging that he was discharged based on his notification to bank executives one month earlier to take FMLA leave for his knee-replacement surgeries and that the bank had no reason to fire him for the embezzlement because his job duties did not include oversight of the tellers.

Dismissing the branch manager’s FMLA claim, the district court held that the employee was fired for a reason unrelated to his request for FMLA leave. Under the plain language of the statute, a necessary condition to bringing a claim is that the employee be eligible to exercise an FMLA right. Since the branch manager was no longer employed at the bank at the time of the surgery, there was no interference because he had no FMLA rights to exercise at that time,” found the district court. In addition, an employee who has requested FMLA leave is not entitled to greater rights or benefits than he would be if he had not requested leave. In this case, the branch manager should not automatically be granted some greater protection from discharge simply because he requested FMLA. The record revealed that while the actual work itself was perform by other individuals, the branch manager was ultimately responsible for internal control procedures. He was fired because of the embezzlement.

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