07-09-2019
Thomas Dunger, a mechanic employed by Union Pacific Railroad (UP) went on approved leave for a hiatal hernia and gastroesophageal reflux disease. Dunger had previously taken intermittent leave without repercussion. While on this approved leave, a co-worker shot a Facebook live stream video that showed Dunger on a fishing trip; Dunger was heard saying “I’m not out here” on the video. The co-worker shared the video with Dunger’s supervisor, and Dunger was fired for violating UP’s policy against dishonesty and for misusing FMLA leave.Dunger argued that the fishing trip was not inconsistent with his medical restrictions and because the fishing trip took place between his shifts, he was not dishonestly using FMLA leave. The federal district court disagreed and upheld UP’s right to terminate Dunger. According to the court, “Even if [Dunger] was successfully able to identify flaws in UP’s reasons for Plaintiff’s termination, Plaintiff has provided no basis to infer that UP relied on anything other than Plaintiff’s dishonesty.” That dishonesty was a lawful basis for termination. The court went on to state that “no reasonable fact finder could determine that Plaintiff’s taking FMLA leave was a negative factor in his termination.”