Employee fired in California after faking injury

Perez v. Barrick Goldstrike Mines, Inc.105 F.4th 1222 (9th Cir. 2024)

Thomas Perez, who worked for Barrick as an underground dump truck driver, claimed he was fired in violation of the Family and Medical Leave Act (“FMLA”) after taking leave as a result of an injury he allegedly sustained on the job. An on-site paramedic found no outward signs of injury on Perez's X-rays or in the function of his heart or lungs. However, because Perez claimed to be in severe pain, the doctor certified him as being unable to work for five days and later for an additional 11 days. After Barrick investigated the accident, the company found no physical evidence that Perez's truck had collided with the side of the mine (as Perez had claimed) and received information from another employee that “Perez was faking a work injury in order to take time off to attend to personal matters (repairing rental properties).” The jury found in Barrick's favor, finding that Perez had not established by a preponderance of the evidence that he suffered from a serious medical condition or that he was fired for requesting special leave. Perez argued on appeal that the district court should have instructed the jury that the only reasonable way for Barrick to challenge the medical certification it received from Perez would have been to obtain recertifications or subsequent opinions from additional medical experts. The Ninth Circuit held that an employer May present contrary medical evidence to rebut a physician's certification in an FMLA certification proceeding, but the law does not require a second or third opinion or the filing of recertifications. Therefore, the jury was permitted to consider the non-medical evidence that Barrick presented at trial in support of its position that Perez did not have a serious medical condition within the meaning of the FMLA.