Dive Brief:

• A district court properly dismissed the discrimination lawsuit of a transgender former Chicago Transit Authority employee because CTA successfully showed that the plaintiff’s gender identity was not the reason for his firing, the 7th U.S. Circuit Court of Appeals held Wednesday.
• The plaintiff in Brown v. Chicago Transit Authority experienced back pain and requested intermittent leave under the Family and Medical Leave Act. CTA’s leave management vendor denied the request after receiving conflicting opinions from two medical professionals and receiving no response from the employee when requesting input from a third.
• The employee then called in FMLA absences to work without reporting them to the vendor in violation of CTA policy, accumulating 24 such days of leave. After a manager noticed a discrepancy between CTA’s records and those of the vendor, the plaintiff was discharged. He alleged gender-identity discrimination and retaliation as well as FMLA interference and retaliation claims. The district court granted summary judgement to CTA and the 7th Circuit affirmed.

Dive Insight:

In its decision, the court noted that CTA properly substantiated its argument that it had informed the plaintiff of his duty to obtain medical certification in line with FMLA requirements.

The FMLA permits employers to require second opinions on an employee’s leave certification if they have reason to doubt its validity, according to the U.S. Department of Labor. In the event that the second opinion is different from the original certification, the employer may require a third certification from a provider selected by both the employee and employer.

Per the 7th Circuit, this is the scenario that occurred in Brown. The plaintiff received his original FMLA certification from a chiropractor who attested to his need for leave. However, CTA’s vendor was familiar with the chiropractor, who “had submitted FMLA certifications for CTA employees with unusual frequency and often opined outside of his speciality.” The vendor had a general practice of requiring second opinions when it received certifications from this chiropractor.

An orthopedist provided the second opinion and concluded that the plaintiff was ineligible for leave. The vendor then sent the plaintiff a letter with instructions to schedule the third opinion and followed up with a phone call, but the employee did not respond. It eventually denied the application after a period of several months following the plaintiff’s visit to the orthopedist.

The plaintiff claimed that CTA obstructed him from obtaining the third opinion because it ceased communication with him before cancelling his appointment. The district court found that claim to be inconsistent with available evidence, the 7th Circuit said, whereas CTA offered “properly substantiated assertions” that it informed the plaintiff of the scheduling procedures.

Additionally, the plaintiff failed to show that his firing was discriminatory in violation of Title VII of the 1964 Civil Rights Act, according to the court. The plaintiff had inquired about CTA’s bathroom use policies and campaigned for broader insurance coverage of a procedure related to his gender transition. But neither activity had a causal connection to his discharge, the 7th Circuit said.

Attorneys who previously spoke to HR Dive have advised employers to be cautious in the event they suspect FMLA abuse. Still, some courts have sided with employers that can demonstrate that abuse took place.

In 2023, for example, the 7th Circuit upheld summary judgment in favor of an automotive manufacturer that it said had an “honest suspicion” that an employee misused leave. The company initiated a review after the employee and his wife, who also worked for the employer, took overlapping FMLA leave more than 20 times in one year.

Courts also have signed off on several methods used by employers to investigate suspected abuse. A Delaware federal district court held in 2021 that a company did not violate the FMLA when it hired an investigative agency to surveil an employee while she was on leave, using videos of the employee performing daily tasks to show she had violated her doctor’s instructions. An appeals court later affirmed the ruling.