Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—W.D. Va.: Attorney, fired for alleged dishonesty in documenting leave, advances FMLA interference claim, (Jun 9, 2025)

By Jason Albright, J.D.

His supervisor asked him whether he “deceived” a nurse into signing an FMLA certification form related to care for his mother, who suffers from severe osteoporosis.

An Assistant Commonwealth’s Attorney, fired after he submitted an FMLA certification form that his supervisor—the Commonwealth’s Attorney for the City of Martinsville—accused him of procuring through deception, may proceed with his FMLA interference claim against the supervisor, a federal district court found. The supervisor is an employer within the meaning of the FMLA, he is not entitled to qualified immunity, and the circumstances raise a factual question about whether the plaintiff’s purported dishonesty “truly was the reason for the plaintiff’s termination” (Mook v. City of Martinsville, No. 4:23-cv-00028 (W.D. Va. Jun. 5, 2025)).

Assistant Commonwealth’s Attorney. The plaintiff, according to the court, was employed as an Assistant Commonwealth’s Attorney in the City of Martinsville, Virginia, from April 3, 2018, until November 18, 2021. Throughout that time, the city’s Commonwealth’s Attorney was his supervisor.

Mother’s treatment. The plaintiff’s mother suffers from severe osteoporosis, and he took FMLA leave in May 2020 to care for her.

Then, in November 2021, he again requested FMLA leave for the same purpose. To get his leave approved, he was asked to submit a completed Certification of Health Care Provider for Family Member’s Serious Health Condition under the Family and Medical Leave Act form to the City of Martinsville’s HR department by November 15, 2021.

Filled out FMLA form. He filled out the form’s Section III—which is supposed to be filled out by a medical professional—based on the information on the certification form for the FMLA leave he had taken the prior year and his knowledge of his mother’s illnesses. Then, when he took his mother to her physician’s office to receive her Prolia injection on November 12, he presented it to an RN for signature.

Plaintiff’s account of nurse’s signing. The circumstances surrounding the RN’s signing of the form are “hotly disputed,” according to the court. The plaintiff alleged that he told the nurse that he needed an FMLA form completed for his employer, explained that he had filled out the entire form, but expressly noted that “if any changes needed to be made,” the RN “should go ahead and do that.”

The nurse then allegedly took the form from him, left the examination room “for approximately two minutes, came back,” and asked him “where he should sign.” The plaintiff asserted that he gave the nurse all four pages of the form, and that he did not see or speak with his mother’s physician that day.

Nurse’s account. The nurse, on another hand, contends that he “remember[s] signing something,” but he “wasn’t sure why it was given to [him] instead of the doctor.” He allegedly assumed that the form was a work excuse “for the day of,” which is why he signed it himself, rather than taking it to the doctor. The nurse also testified at his deposition that, if he had been given an FMLA form, “that would have gone to [the physician].” The nurse testified that he does not know why, if the form “was the FMLA form,” the plaintiff “gave it to [him] versus seeing the doctor.”

HR’s involvement. In any event, after the nurse signed the form, the plaintiff faxed it to HR and to the Commonwealth’s Attorney’s office, and sometime later, the latter’s administrative assistant told the Commonwealth’s Attorney that there “was a problem with the certification and that it appeared that [the plaintiff] had... filled out the [section] that was supposed to be signed by the doctor” himself. The administrative assistant also informed the Commonwealth’s Attorney that the nurse had asserted that, when he signed the form, the plaintiff had told him “that he needed basically a work excuse signed” and that the nurse had not known “that he was signing something regarding family medical leave.”

Conversation with supervisor. The Commonwealth’s Attorney then called the plaintiff to discuss the situation, and the plaintiff admitted to filling out the form himself. He vehemently denied deceiving the nurse, however, and explained that he had told the nurse that he was free to make any changes if he needed to. The Assistant Commonwealth’s Attorney also offered to take another form to the physician’s office so that she could fill out that section herself.

Discharge. Nevertheless, the Commonwealth’s Attorney maintained that the plaintiff had shown poor judgment by filling out the form himself, and that his doing so cast doubt on his honesty. He told the plaintiff that he would have to terminate him and gave him an opportunity to resign in lieu of termination. When the plaintiff declined to resign, the Commonwealth’s Attorney fired him.

Lawsuit. The former Assistant Commonwealth’s Attorney filed suit against the Commonwealth’s Attorney and the city on November 16, 2023, alleging FMLA interference, and a federal district court declined to dismiss his claims in June 2024.

The Commonwealth’s Attorney moved for summary judgment on April 18, 2025.

Supervisor as employer. The court initially found that the Commonwealth’s Attorney is an employer under the FMLA. He argued that his “duty of loyalty and performance” is “to the people who elect him in a particular jurisdiction rather than the Commonwealth of Virginia as a whole,” but by statute, the Commonwealth’s Attorney is “part of the department of law enforcement of the county or city in which he is elected or appointed,” “a ‘public agency’ as defined in section 3(x) of the Fair Labor Standards Act of 1938” is an FMLA employer, and the FLSA defines public agencies to include “the government of a State or political subdivision thereof” and “any agency of... a political subdivision of a State.” 29 U.S.C. § 203(x).

FMLA interference. The circumstances of the case also raised a factual question about whether the plaintiff’s purported dishonesty “truly was the reason for the plaintiff’s termination,” or whether it was a pretext to avoid granting his requested FMLA leave, according to the court. To the extent that the Commonwealth’s Attorney argued that the plaintiff cannot obtain relief because the certification was in fact fraudulent, that fact was vigorously disputed. And though the Commonwealth’s Attorney argued that he had a “genuine belief that [the plaintiff] was dishonest,” such a belief must still be reasonable. Here, the court found that “Whether [the Commonwealth’s Attorney’s] belief was reasonable under these circumstances—and whether those beliefs were the actual motivation for his decision to fire [the plaintiff]—is ultimately a question for the jury.”

No qualified immunity. Finally, the Commonwealth’s Attorney was not entitled to qualified immunity. He argued that, though the FMLA’s statutory protections against interference are “clearly established,” the plaintiff’s rights under the regulations are not. The court was unpersuaded, finding that “plain reading of the regulations” demonstrates that the Commonwealth’s Attorney should have first notified the plaintiff and given him an opportunity to cure if the Commonwealth’s Attorney believed that someone other than a healthcare provider had filled out the form. Because the regulation was clear, the Commonwealth’s Attorney could not escape liability on the basis that there is no caselaw applying this particular regulation to a public official under these circumstances.

The case is No. 4:23-cv-00028.

Judge: Cullen, T.

Attorneys: Scott Gregory Crowley (Crowley and Crowley) for Daniel P. Mook. Jennifer Dillow Royer (Law Offices of Jennifer Royer) for City of Martinsville.

Companies: City of Martinsville

Cases: EmployeeLeave Discharge PublicEmployees Procedure VirginiaNews