Last Updated on August 27, 2026 by MyHRConcierge

An employee requests intermittent FMLA leave, is later terminated for allegedly misusing that leave and claims the termination was retaliation. For HR professionals, the situation presents a difficult question: When does an employer’s legitimate concern about FMLA misuse become a retaliation risk?

A recent federal case involving CSX Transportation offers an important look at that question. While the case ultimately resulted in a jury verdict for the employer, the litigation demonstrates why employers should carefully evaluate the facts surrounding FMLA leave before taking disciplinary action.

In Pack v. CSX Transportation, Inc., the U.S. District Court for the Southern District of West Virginia initially allowed the employee’s FMLA retaliation claim to proceed, finding that a reasonable jury could question whether the employer’s stated reason for termination was pretextual. The case eventually went to trial, where the jury found in favor of CSX. In August 2026, the court also denied Pack’s request for a new trial.

The Case: An Intermittent FMLA Request Raises Questions

Toby Pack worked for CSX Transportation and had been approved for intermittent FMLA leave related to chronic kidney stones. His medical certification indicated that he could need intermittent leave up to three times per month, for approximately one day per episode.

On August 23, 2017, Pack contacted CSX’s Crew Management Center to request time off for the following day. During the call, he initially asked whether he could use a personal day because his children were starting at a new school. When he was told a personal day was unavailable, Pack referenced his approved FMLA leave.

CSX interpreted the conversation as evidence that Pack was improperly using FMLA leave for a school-related event. The company charged him with FMLA misuse, removed him from service pending an investigation and ultimately terminated his employment. Pack disputed that characterization, maintaining that he was experiencing symptoms related to his kidney condition and needed time off for a medical reason as well. He later presented medical evidence supporting his position.

Pack subsequently sued CSX, alleging that his termination was retaliation for exercising his FMLA rights.

Why the Court Initially Let the Retaliation Claim Proceed

In January 2026, the court granted CSX summary judgment on Pack’s FMLA interference claim but declined to dismiss his retaliation claim. The court focused on whether CSX’s stated reason for terminating Pack- its belief that he had misused FMLA leave- could be viewed as pretext for retaliation.

The court noted that CSX’s evidence of FMLA misuse largely centered on the phone conversation. Pack, however, testified that he was also experiencing symptoms related to his kidney stones and had a medical basis for needing the time off. His doctor’s documentation provided additional evidence supporting the legitimacy of his medical need.

That combination was enough for the court to conclude that a reasonable jury could question whether CSX’s decision-making process was sufficiently supported. The court therefore allowed the retaliation claim to proceed to trial. Importantly, the ruling did not mean that CSX had violated the FMLA. It meant that the evidence presented a factual question that could not be resolved at the summary judgment stage.

The Case Ultimately Went to a Jury

The story did not end with the court’s decision to allow the retaliation claim to proceed. Following trial, the jury found in favor of CSX. The court later explained that the jury had been instructed that the FMLA does not prohibit an employer from disciplining an employee based on an honest belief that the employee misused FMLA leave. The employer did not have to prove that the employee actually committed FMLA misconduct if it genuinely believed the misconduct occurred.

Pack argued that this standard could allow employers to rely on subjective suspicion when disciplining employees. The court rejected that argument and pointed out that the jury instruction also allowed jurors to consider whether CSX had a legitimate basis for its belief. If the employer lacked such a basis, that could support an inference that the stated reason was not honestly held. Pack sought a new trial, but the court denied that request on August 4, 2026.

What This Means for HR

The case offers an important reminder that FMLA retaliation and FMLA misuse can exist in the same conversation. Employers are not required to ignore suspected abuse of protected leave. At the same time, an employee’s imperfect explanation for needing leave does not automatically establish misconduct.

• Look at the Entire Leave Request: Employees may mention several reasons for needing a day off. A personal, family or scheduling issue may come up alongside a legitimate medical need. HR should evaluate the entire conversation and the available documentation rather than focusing exclusively on the first reason an employee gives for requesting time away from work.
• Investigate Before Assuming Misuse: A suspicious-looking leave request should trigger questions, not conclusions. Before discipline is imposed, HR should review the employee’s approved FMLA certification, the circumstances surrounding the absence, available medical documentation and any relevant attendance or leave records. The goal is to determine whether the evidence actually supports a finding of misuse and whether the employer’s decision-making process is based on more than speculation.
• Train Employees Who Handle Leave Requests: The person receiving an employee’s call about an absence may ultimately become an important part of an FMLA dispute. Supervisors, managers, dispatchers, scheduling personnel and others who receive absence calls should understand how to handle potential FMLA requests. They should document what the employee says accurately and avoid making assumptions about whether an absence qualifies for protected leave.

Separate the Leave Question From the Discipline Question

Determining whether an absence qualifies for FMLA protection and determining whether an employee engaged in misconduct are related, but they are not necessarily the same question. HR should make sure an investigation clearly identifies:

• What the employee requested
• What reason or reasons the employee provided
• Whether the absence potentially qualified for approved FMLA leave
• What information supported or contradicted the request
• What policy or rule the employee allegedly violated
• What evidence supports the employer’s disciplinary decision

This documentation can become especially important if the employee later alleges retaliation.

The Bottom Line

Pack v. CSX Transportation demonstrates both sides of the FMLA retaliation equation. The court initially found that the evidence was sufficient for a jury to consider whether CSX’s stated reason for termination was pretextual. But after hearing the evidence at trial, the jury ultimately sided with CSX, and the court later declined to order a new trial.

For employers, the lesson is not that every questionable FMLA request creates liability, or that an employer can discipline an employee whenever it suspects misuse. Instead, the quality of the employer’s decision-making matters.

When an employee is accused of misusing FMLA leave, employers should rely on documented facts, investigate the circumstances thoroughly and make sure the decision to discipline is supported by a legitimate, honestly held reason. A careful process can help employers address potential abuse while reducing the risk that legitimate FMLA activity will later be characterized as the reason for an adverse employment action.

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This article is for informational purposes only and does not constitute legal advice.