Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—6th Cir.: Township laborer fired while on leave can’t revive FMLA retaliation claim, (Jul 8, 2025)

By Thomas K. Lauletta, J.D.

The township was justified in terminating the employee for falsification of his medical condition while on FMLA leave.

The Sixth Circuit, in an unpublished decision, upheld a district court’s determination that a township employee, who had been terminated while on leave, failed to prove his termination was pretextual under the McDonnell Douglas framework. After sustaining a shoulder injury that made him unable to perform his duties as a manual laborer, his doctor recommended that he could return to work after a specified time period but with “light duty” work restrictions. The employee was terminated after a private investigator observed him performing, while still on leave, construction activities for a family member that were inconsistent with the doctor’s restrictions (Porter v. Jackson Township Highway Department, No. 24-25-34 (6th Cir. June 24, 2025, unpublished)).

In October 2012, the employee was hired to work in the Jackson Township Highway Division. His job entailed mostly manual labor, including using power tools, sledgehammers, picks, and air hammers to dig ditches and dig up pavement.

Injury. In January 2021, the employee injured his shoulder outside of work. After undergoing surgery, he began taking FMLA leave. The employee’s doctor wrote after surgery that the employee was “totally disabled” and unable to return to work until May 20, 2021. After that time, he would be restricted to doing no overhead lifting, no lifting over 10 pounds, and no digging holes by hand.

Around May 17, the employee was informed that there were no “light duty” assignments within the Public Works Department and was told to request unpaid leave. After his FMLA-leave balance was exhausted that month, he was placed on 40 hours of vacation time followed by unpaid leave from May 20, 2021, to June 18, 2021. During the employee’s unpaid leave, he and the township paid their own shares of his health benefits.

Investigation. In late May 2021 and early June 2021, a private investigator hired by the township observed the employee performing construction activities and appeared to show no struggles with movements such as lifting, bending, and carrying. The investigator filmed the employee working at his brother-in-law’s home, bending at the waist while using a tape measure and chalk line, using both arms as he worked in the yard, and operating a concrete saw.

Termination. Based on this investigation, the Township Board of Trustees terminated the employee for not complying with his doctor’s medical restrictions and being able to perform more work than he had claimed.

Lower court proceedings. The employee subsequently sued, asserting claims under the FMLA and state law and the lower court granted summary judgment against all claims. The employee appealed only the grant of summary judgment against his FMLA retaliation claim.

Pretext. Analyzing his claim under the McDonnell Douglas framework, the court found that the employee established his prima facie case and the employer showed that it had a legitimate, nondiscriminatory reason for the adverse employment action. The only issue on appeal was whether the employer’s stated reason for the firing was pretextual.

The employee argued that the township’s stated reason either “had no basis in fact” or “was insufficient to warrant the adverse action insofar as it was consistent with the light duty authorized under his medical restrictions.” The appeals court separately considered each of his contentions.

“No basis in fact.” Under the Sixth Circuit’s “honest belief rule,” a claim of pretext may be defeated based on conclusive evidence that the defendant “honestly believed” its proffered reason, and that the belief was reasonably based on particularized facts that it had at the time the decision was made. The employee argued that there was no “actual” violation of his medical restrictions on the theory that “the concrete saw was never weighed, and no similar saw was weighed or entered into evidence at the pre-disposition hearing.”

The court stated that the question here was not whether there was an actual violation, but rather whether the employer reasonably believed that there was an actual violation. Even though the employer never weighed the saw in question, it took reasonable steps to ascertain the weight of the saw by comparing the saw in the investigator’s video with a saw previously owned by the employer. The employer also looked at the manufacturer’s product specification for that saw. Based on this comparison, it reasonably believed that the saw in the video weighed 16 pounds, exceeding the 10-pound weight restriction.

“Facts insufficient to motivate the firing.” The employee alternatively argued that the employer’s stated reason for the termination was “insufficient to motivate the firing.” He contended that the employer’s reason for terminating him was insufficient to motivate the firing because chalk lining, measuring, and showing his brother-in-law how to cut a sidewalk were all activities that constituted “light duty.” The court rejected this argument, stating that he failed to present any evidence that similarly situated employees were not fired even though they engaged in substantially identical conduct to that of the employee.

The case is No. 24-2534.

Judge: Boggs, D.

Attorneys: Eric Dorman Hall (Law Office of Eric Dorman Hall) for Shawn Porter. Drew C. Piersall (Littler Mendelson) for Jackson Township Highway Department.

Companies: Jackson Township Highway Department

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