No FMLA leave for Gambling Jaunt
Published: November 11, 2011
A Verizon employee who was granted intermittent leave under the Family & Medical Leave Act for his depression, migraines and suicidal ideation, cannot sue Verizon for violation of the FMLA for terminating him after verifying that he spent several days of his intermittent leave gambling at an Atlantic City casino, after he had called in sick; the Richmond U.S. District Court Magistrate Judge grants summary judgment for Verizon.
In a preliminary matter raised by plaintiff, he has objected to use of his own deposition transcript in support of defendant’s motion for summary judgment without the court also considering his errata sheet, which was not yet due at the time or oral argument.
The questionable nature of plaintiff’s newly formulated testimony vis-à-vis an errata sheet gives the court pause. There presently exists a split of authority as to how a court should reconcile such conflicting testimony, and disagreement even persists among federal courts sitting in the court’s own state of Virginia.
One series of cases suggests the scope of changes permitted pursuant to Rule 30(e) is essentially boundless. Where such an approach is followed, the opposing party may nevertheless impeach a witness with any contradictory, unpolished statements. That is to say, the conflicting statement is not replaced, and the deponent is instead left with both the original testimony and the errata sheet. The other approach taken by some courts is to simply strike any changes attempting to alter the substance of the deponent’s testimony.
Under certain circumstances, the substantive use of an errata sheet to change the deposition answers is analogous to a “sham” declaration designed solely to defeat summary judgment, especially where such material is submitted after briefing and oral argument on the related motion. The court will take no position on the present state of disagreement among the courts on the issue because, as this court perceives it, neither approach would permit the use of a “sham” errata sheet whose sole apparent purpose is to create a genuine issue of material fact intended to preclude the granting of dispositive relief.
Here, however, it is not entirely clear in any event that plaintiff’s errata sheet contains any material evidence whatsoever. Plaintiff has simply emphasized several of his statements given during the deposition to the effect that he believes his use of FMLA leave had some causal connection to any number of other suspected reasons for his termination. Plaintiff’s stated belief that wrongdoing occurred provides no evidentiary basis to defeat summary judgment. Such an effort is apparently done to undermine plaintiff’s several prior statements by which he theorized defendant terminated his employment for non-FMLA related reasons. While the court will not strike the statements contained in the errata sheet, it also will not permit plaintiff to create a genuine issue of material fact where none previously existed.
The court finds, in essence, that neither the FMLA nor common sense can authorize an employee to, with impunity, enjoy what amounts to a vacation while telling his employer he is sick and incapacitated.
Even if plaintiff’s admitted gambling addiction were related in some way to his qualifying medical conditions, the FMLA would not shield him from personal responsibility while acting upon his addiction. Even assuming that “rest and relaxation” constitute approved FMLA leave, it is indisputable that plaintiff’s August 2009 hiatus went well beyond the scope of such an approved absence. Calling in sick to gamble was an abuse of plaintiff’s approved intermittent leave and, by extension, an abuse of the FMLA.
Summary judgment for employer.
Campbell v. Verizon Va. Inc. (Dohnal) No. 3:11cv2, Sept. 13, 2011; USDC at Richmond, Va. VLW 011-3-522, 23 pp.