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Vail v. Raybestos Products Co.

July 21, 2008


Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:06-CV-544-Richard L. Young, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge.


Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.

Diana Vail is a former employee of Raybestos Products Company. Vail suffers from migraine headaches, a condition that required her periodically to take medical leave from her job there. In October 2005, Raybestos fired Vail for abusing her leave. Clandestine surveillance had caused Raybestos to suspect that, while supposedly on leave, Vail had actually been working for a family business. This lawsuit followed, alleging that Raybestos had violated both the Family Medical Leave Act, 29 U.S.C. § 2601, et seq., and the terms of a collective bargaining agreement covering Vail. Following discovery, the district court granted Raybestos's motion for summary judgment on both counts. This appeal followed, and for the reasons set out below, we affirm.

I. Background

All the relevant facts in this case occurred over the summer and fall of 2005. At the time, Diana Vail worked the third shift for Raybestos Products Company, a manufacturer of car parts with a factory in Crawfordsville, Indiana. Working the third shift meant coming in at 10:45 at night and clocking out at 6:45 the next morning. Vail was by all measures a good worker. But her job at Raybestos was complicated by the fact that she suffered from migraines, which, when present, would keep her from work. Her supervisors were aware of her condition and had approved the use of intermittent medical leave in April 2004.

This case stems from Vail's use of that leave from May through September 2005. Over this period, she received more than thirty-three days of approved leave. Given that her migraines crept up on her on short notice, Vail would call in just prior to her evening shift to tell her supervisor that she would not be coming in. As the summer progressed and Vail's use of her leave became more frequent, her supervisors at Raybestos began to suspect that her requests were not entirely genuine. This suspicion stemmed from the fact that they knew Vail's husband had a lawn-mowing business and that Vail would help him out part-time. Among her husband's customers were several cemeteries, which generally preferred to have their lawn-mowing done at the quiet times during the day throughout the workweek-less as a courtesy to its residents than to those who would come to visit. The summer and fall were prime mowing seasons, and Vail's requests for leave began to stack up, mostly coming during the work-week when Vail's husband would need to mow the cemeteries. Putting all this together, Raybestos decided to probe a little further into what Vail was doing while on leave. To that end, Raybestos engaged the services of Sergeant Largent of the Crawfordsville, Indiana Police Department to monitor Vail's activities while he was off-duty.

After her shift ended on the morning of October 6, 2005, Vail went to see Dr. Amber Hussain, her treating physician. Dr. Hussain prescribed a different blood-pressure medication to treat Vail's migraines and instructed her not to work for twenty-four hours after first taking the medication. As a result, Vail called prior to her shift later that day to request leave, which Raybestos granted. The next morning around 10:16 AM

Vail called Dr. Hussain and asked her to submit a note to Raybestos explaining why she had been absent from work, which she agreed to do. About ten minutes later, Vail left her house and, under Sergeant Largent's watchful eye, filled up two lawn mowers at a nearby gas station. She then proceeded to take both mowers to the New Richmond Cemetery where she and another person mowed the lawn. Upon seeing this, Sergeant Largent called the director of human resources at Raybestos, Elizabeth Sowers, to pass along his reconnaissance information. That afternoon, Vail called in again saying that she would be requesting medical leave for her shift beginning October 7 due to the onset of a migraine. Prior to this call, Raybestos had received Dr. Hussain's note, which it interpreted as another request for leave that night.

The information relayed from Sergeant Largent convinced Sowers that Vail was abusing her leave. In addition, Sowers thought that Vail had violated a specific provision of the collective bargaining agreement covering Vail's union that banned physical labor for profit while on approved leave. That provision stated:

An employee shall lose his seniority and right to be on the seniority list: (f) If an employee requests and is granted a leave of absence from the Company and while on such leave of absence accepts and performs other gainful employment or provides physical labor to operate any type of business enterprise for profit unless specific permission has been granted by the Company.

Based on the perceived abuse of leave and the violation of the collective-bargaining agreement, Sowers notified Vail's union representative of her decision to terminate Vail. The union did not object.

When Vail next reported to work, Vail's manager informed her that she was being terminated. The next day, Vail met with Sowers, the superintendent of her department and her union representative, Gary Bryant. Bryant told Vail that based on his view of the evidence, it was a "closed, shut case." In the meeting, Vail heard what Sergeant Largent had passed along to Sowers and did not question or challenge the decision during the meeting. She received a termination notice, which gave the following as the reason for her termination:

Management became aware on 10/07/05 that Ms. Vail was performing physical labor while on FMLA. As a result of this action Ms. Vail's employment ...

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