Thomas Perez, a haul truck driver for Barrick Goldstrike Mines, Inc., claimed that he was injured when his truck collided with the wall of a mine. Perez did not report the collision until the end of his shift, hours later, even though the Barrick policy requires immediate reporting. Neither an on-site emergency medical technician who examined Perez, nor a doctor who treated him later, found any outward signs of injury or abnormalities. Perez claimed severe pain from certain movements, so his doctor certified Perez to remain off-work for 11 days. Perez used Family and Medical Act Leave (FMLA) and returned to work 18 days after the alleged accident, with no restrictions. Barrick never requested a recertification or obtained a second medical opinion.
Instead, Barrick investigated Perez’s alleged accident. Barrick found no physical evidence that Perez’s truck had collided with a mine. Barrick hired a private investigator to follow Perez and to confirm whether he was fraudulently taking FMLA leave. Over the course of three days, the investigator captured video of Perez doing various activities without visible signs of difficulty or discomfort, including driving through town, gambling at a casino, performing repair work at his rental property, repeatedly lifting and holding both arms over his head, and carrying and using a power drill and other tools and equipment. Barrick then confronted Perez and fired him after concluding that he had faked his injury and violated company policy.
Perez sued his former employer for interfering with his FMLA rights when it terminated his employment. The jury in the district court found that Perez failed to show by a preponderance of the evidence either that he had a serious health condition preventing him from doing his job, or that Barrick terminated him because he sought protected leave.
On appeal to the U.S. Court of Appeals for the Ninth Circuit, Perez contended that the U.S. District court erred in its instructions to the jury. Perez argued that the district court should have instructed the jury that Barrick could only challenge his doctor’s certification with subsequent opinions from additional medical experts.
The Ninth Circuit disagreed with Perez and held that the FMLA does not require an employer to present contrary medical evidence before contesting a doctor’s certification of a serious health condition. The jury properly considered the non-medical investigation evidence that Barrick offered at trial in support of its argument that Perez did not have a serious health condition within the meaning of the FMLA.
Perez v. Barrick Goldstrike Mines, Inc., 2024 U.S. App. LEXIS 15778 (9th Cir.).