Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—E.D. PA.: Termination of employee who committed time theft when working on government contracts was permissible, (Mar 24, 2025)

By Nicholas Kaster, J.D.

To demonstrate pretext, the employee must put forward “evidence contradicting the core facts put forward by the employer as the legitimate reason for the decision.”

An employee’s claim that The Boeing Company fired him in violation of the Americans with Disabilities Act and the Family and Medical Leave Act failed to survive summary judgment. The employee based his claims on his poor relationship with a supervisor, who had no role in firing him. Because those who made the decision to fire him did so because the employee had, by his own admission, committed time theft when working on government contracts, a federal district court in Pennsylvania ruled that his termination was permissible (Fisher v. The Boeing Company, No. 24-4264, (E.D. PA. Mar. 21, 2025)).

Government contracts. The employee worked for Boeing as a Sheet Metal Assembler on various projects, including those arising from government contracts for aircraft. During his last two years, he worked mostly on projects for contracts between Boeing and either the United States or foreign governments.

Boeing’s Labor Recording Practices Policy requires that employees accurately record their work schedules in the employer’s timekeeping system and obtain approval for any changes. The Policy provides that employees falsifying labor charging or managers who knowingly approve such falsifications are subject to company disciplinary action and possible civil and/or criminal liabilities. The employee received annual training on this Policy. Boeing also had a Leave of Absence Policy by which employees could take up to twelve weeks of unpaid leave under the FMLA.

Employee leave. Between 2017 and 2023, the employee took various medical leaves due to skin ailments. His supervisor was unaware of the employee’s skin disorders. He knew only that the employee had taken FMLA leave but did not know why. A shift manager, from whom the employee received assignments, was aware of the employee’s skin problems that caused him to miss work. The parties disputed whether the shift manager was aware that the employee ever took FMLA leave.

On March 22, 2023, the shift manager directed the employee to complete a “priority” project by the next day. The employee, who was still on FMLA leave, believed that when he could not comply, his relationship with the shift manager became “worse.” Although the employee testified that the shift manager then stopped giving him any work, Boeing’s records show that the employee continued to receive assignments from her through at least April 2023.

Attendance. The employee’s attendance was poor irrespective of his FMLA leave. He received verbal warnings about unexcused absences. On May 5, 2023, his supervisor was notified of the employee’s poor attendance record over the previous year. That same day, the supervisor spoke with the employee about his poor attendance and frequent absences and lateness.

Employee terminated for time theft. On May 5, 2023—the same day the employee spoke with the supervisor about his repeated lateness and absences—his first line supervisor became aware of discrepancies in his time records. A subsequent investigation found that in a single pay period the employee had fraudulently recorded 12 of 43 hours—27.9% of his total time. The employee did not deny this fraud. A four-person Employee Corrective Action (ECA) team decided to fire him and on May 25, 2023, notified him that he was being discharged for “violat[ing] our labor recording compliance requirements by failing to enter your time correctly... resulting in mischarging to a government contract.”

A union filed a grievance contesting the employee’s discharge. At the grievance hearing, the employee admitted that he had mischarged his time and that he did so to hide his poor attendance. On June 21, 2023, Boeing issued a letter denying the union’s grievance and discharged the employee for cause.

Comparator. Boeing has disciplined other employees who made fraudulent time entries. Only one was a Sheet Metal Assembler: an employee who mischarged 11 hours—comprising 11% of his time over two weeks—and was suspended without pay for five days. That employee had taken FMLA leave on four occasions and is still employed by Boeing.

Employee alleged discrimination and retaliation. The employee filed suit alleging: (1) Discrimination and disparate treatment under the ADA; (2) Retaliation under the ADA; and (3) Interference and retaliation under the FMLA. Boeing moved for summary judgment on all claims.

ADA disability discrimination claim. Boeing argued that the employee failed to make out an adverse employment decision because of discrimination. The court agreed.

The employee argued that the shift manager had a discriminatory motive to fire him. However, the court explained, the shift manager did not make the decision to fire him. Moreover, although she disliked the employee and thought he was a poor employee, the shift manager took no adverse action for an improper motive.

The employee was fired by the ECA team (that did not include the shift manager) after an independent ethics inquiry by an investigator. The employee submitted no evidence that either the team or the investigator had a discriminatory motive. He nonetheless urged “cat’s paw liability”: that the shift manager’s purportedly improper motivation carried over to those who, acting neutrally, took adverse action against him. There was no evidence, however, that the shift manager influenced the neutral parties that took adverse action against the employee.

Accordingly, the court held that the decision to fire the employee was permissible.

Retaliation claims. The court held that, although the employee could show a protected activity – FMLA leave – he could not make out a causal connection between the protected activity and the employer’s adverse action.

Courts addressing causation typically focus on evidence of two main factors: timing and ongoing antagonism. The employee’s last period of FMLA leave expired March 27, 2023, and he was placed under investigation on May 11, 2023, which was about 44 days or 6 weeks apart. The employee acknowledged that, to be unusually suggestive, the courts have generally considered action “in days and not weeks.” As to the second factor, the employee provided no evidence of ongoing antagonism between him and the investigator, the ECA team, or the union.

Once again, the employee urged cat’s paw liability, arguing that the shift manager had retaliatory animus toward him, and she influenced the termination. However, as discussed above, the court found that, because the undisputed evidence showed that the shift manager did not influence the investigator, the ECA team, or the union in any way, he could not make out cat’s paw liability. In any event, the record showed that although the shift manager thought the employee was an unreliable employee because of his poor attendance and lateness—failings he himself acknowledged—she did not discriminate against him. Evidence that the shift manager disliked the employee did not make discriminatory or retaliatory animus.

Legitimate, non-pretextual reason for termination. The employee failed to make out a prima facie case for any of his claims, the court held. Even if he had, those claims would still fail. Boeing easily carried its “relatively light” burden to demonstrate that it had a legitimate reason to fire the employee, the court said. The employee admitted that he mischarged over 27.9% of his time over the period reviewed by the investigator and the ECA team. He nonetheless argued that this was merely a pretextual reason for his firing. The court disagreed and granted summary judgment to Boeing on this alternative ground.

To demonstrate pretext, the employee must put forward “evidence contradicting the core facts put forward by the employer as the legitimate reason for the decision.” The parties did not dispute the “core fact” that the employee mischarged almost 30% of his time on a series of government contracts. That the employee believed his termination was an unduly harsh penalty for his admitted dishonesty was beside the point. The court was instead concerned with whether the reasons for such actions were pretextual. Firing the employee because he stole almost 30% of his time working on government contracts was thus permissible.

The employee pointed to the Sheet Metal Assembler who was suspended without pay for five days for misrecording 11% of his time (a total of eleven hours) over a two-week period. The court held that this employee was an inapposite comparator for the employee’s FMLA retaliation claim and might be an inapposite comparator for his ADA retaliation claim. Evidence of more favorable treatment of a single member of a non-protected group is usually insufficient to establish pretext, the court said. Moreover, the comparator was not treated more favorably than the employee. The comparator was suspended without pay because he stole 11% of his time, whereas the employee was fired because he stole close to 30%.

The court thus concluded that Boeing had a legitimate, nondiscriminatory reason for firing the employee. The undisputed evidence showed that the employee “was not a model employee.” He acknowledged that his FMLA leave aside, his attendance was poor and that he tried to defraud Boeing when he worked on a government contract. Boeing’s decision to fire the employee was thus permissible, the court concluded. Accordingly, the court granted Boeing’s motion for summary judgment.

The case is No. 24-4264.

Judge: Diamond, P.

Attorneys: Christopher J. DelGaizo (Derek Smith Law Group) for John Fisher. Donald D. Gamburg (Ogletree, Deakins, Nash, Smoak & Stewart) for The Boeing Co.

Companies: The Boeing Co.

Cases: Discrimination DisabilityDiscrimination EmployeeLeave Discharge Retaliation WageHour PennsylvaniaNews