Honest belief rule

What Happens When an Employer Honestly (but Mistakenly) Believes Its Employee Has Misused Medical or Family Leave? Read on

By JW Law
We’ve all heard the saying that “honesty is the best policy.” Well, what about an honest mistake? What happens when an employer discharges an employee because it honestly (but mistakenly) believes the employee has misused leave under the Family and Medical Leave Act (FMLA)? Can an honest mistake defense be enough to fend off an employee’s FMLA retaliation claim? In one word- Yes.

In a recent ruling, the Third Circuit Court of Appeals stated that an employer’s honest belief- even if mistaken- is sufficient to defeat FMLA retaliation claim.


In an article titled “Employer’s ‘Honest Belief’ Is Complete Defense to FMLA Retaliation Claim,” for the New Jersey Law Journal, Javerbaum Wurgaft employment attorney Andrew Moskowitz discussed the Honest Belief rule with regards to Capps v. Mondelez Global.

To Read the full article: Click Here

In this particular case the plaintiff employee, Fredrick Capps, suffered from Avascular Necrosis, which was a “loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially suffocating and causing death of those cells.” Capps developed arthritis in both hips which necessitated bilateral hip replacement in 2003. He experienced severe pain, sometimes lasting for days or weeks at times. He was continuously re-certified for intermittent FMLA leave until 2014 when his employer at Mondelez, terminated his employment for violating a policy concerning dishonesty.

Honest belief rule
The employer claimed that Capps had used FMLA leave for dates related to his conviction for driving under the influence (DUI) of alcohol. Capps argued that Mondelez: (1) interfered with his rights under the FMLA; (2) acted in retaliation to Capps’ proper use of FMLA leave; and (3) violated the Americans with Disabilities Act.

The court found that Mondelez had provided a legitimate, nondiscriminatory reason for terminating Capps. In so holding, the Third Circuit agreed that when an employee is discharged because of an employer’s “honest mistake,” employment laws “offer no protection.” The Court gave employers who purport to terminate employees because they are misusing their FMLA leave an ironclad defense. As long as the employer asserts that it “honestly believed” that the employee was misusing his or her leave, this defense is sufficient as a matter of law to defeat an FMLA retaliation claim.


The lesson from the Capps case for employees is dot your ‘i’s and cross your ‘t’s. If you are requesting a leave, make sure that you submit your documentation to your employer in a timely fashion. Respond promptly to any requests for additional information and, most importantly, do not make any false statements.

[Read Related: Javerbaum Wurgaft Attorney Andrew Moskowitz Obtains $375,000 Settlement in Age Discrimination Lawsuit]

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Javerbaum Wurgaft Attorney Andrew Moskowitz Obtains $375,000 Settlement in Age Discrimination Lawsuit

By JW Law


Case: DeGarcia v. Kean University

Date: December 2016

Attorney: Andrew Moskowitz

Settlement: $375,000

Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C. would like to congratulate, Andrew Moskowitz, of our Springfield office, for obtaining a $375,000 settlement in age discrimination lawsuit against Kean University.

The university agreed to settle with William DeGarcia, a former administrator, for $375,000 after he alleged that the college discriminated against him for his age. Mr. DeGarcia worked for Kean for nearly thirty-three (33) years.

At the end of August 2009, he was appointed as Acting Director II (D30) of the Exceptional Educational Opportunities/Educational Opportunity Fund (“EEO/EOF”) Program. The EEO/EOF was subsequently combined with Kean’s Spanish Speaking Program and Passport Program and renamed the Educational Opportunities Center (EOC).


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After nearly three and half years as Acting Director of the EOC and its predecessor, Mr. DeGarcia was informed in January 2013 that he had not been chosen for the permanent Director position and that; as a result, his employment was being terminated. At the time of his termination, Mr. DeGarcia was fifty-five (55) years old. Kean had prepared a list of employees with 25+ years of experience – which included Mr. DeGarcia – whom Kean sought to “transition to retirement.”

The individual chosen instead was a 37-year old with no managerial experience. Also, the individual who chaired one of the search committees repeatedly told Mr. DeGarcia that he had “been at Kean too long” and that she wanted “new blood” in the Department.

Finally, there was testimony that Kean’s President had stated to Kean’s Associate Provost and Associate Vice President for Academic Affairs that he had brought Mr. DeGarcia in to clean up the “mess at EOF” and that, “when it was all set up and running well, then he was going to fire him” because Mr. DeGarcia “had outlasted his usefulness.”

News of the agreement was reported by NJ.com.

Do you think you are being unfairly discriminated against because of age? Contact Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins. Our attorneys provide comprehensive legal representation to individuals who have been discriminated against in the workplace on the basis of gender, disability, race, age, and more. Call for a consultation to discuss your case and learn more about your legal rights at (973) 379-4200.

NOTE: Any information about verdicts or settlements obtained are based on the unique facts of each case. This amount reflects the gross recovery in the case (before attorneys’ fees and expenses are deducted).