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Vacation Photos, FMLA and the Question of Timing

Rodney Jones worked for Accentia Health and Rehabilitation Center of Tampa Bay. He needed and was granted leave under the Family and Medical Leave Act for shoulder surgery. At the end of his FMLA leave, his doctor recommended that he extend his leave by 45 days. However, Mr. Jones offered to return to work earlier if Accentia would give him light duty. Accentia would not allow him to return to work without a fitness for duty certification. It gave him one more month of non-FMLA leave.

During this extended portion of the leave, Mr. Jones took a vacation with his family to Busch Gardens’ amusement park and to St. Martin, where Mr. Jones swam and enjoyed the beach. He posted photos of these travels on Facebook. When Mr. Jones arrived at the end of the month for work, Accentia confronted him about his travels. It believed those photos showed he could have returned to work much sooner. He was fired.

On appeal to the Eleventh Circuit Court of Appeals, the court considered whether there was a triable issue of fact on an FMLA retaliation claim. Up first, was the timing of the termination. The parties disagreed over whether the timing should be measured from the beginning of Mr. Jones’ initial FMLA leave (4 months) or from his last day of leave (1month), which was important to showing causation. The circuit court held that the “temporal proximity” of retaliation must be measured from the last day of an employee’s FMLA leave until the adverse employment action. The court also found that Accentia’s basis for terminating Mr. Jones could have been pretextual. Accentia asserted that the Facebook photos violated company social-media policy. Yet, a reading of the policy reflected that the policy did not really apply to this situation. The case will proceed to trial.