Family and Medical Leave Act Update: Federal Circuit Court Approves Mixed Motive Charge for FMLA Retaliation Case

By Lisa B. Golan

http://www.disability-discrimination-attorney.com

In Egan v. Del. River Port Auth., 851 F.3d 263 (3^rd Cir. 2017), the Third Circuit Court of Appeals held that “an employee does not need to prove that invoking [Family and Medical Leave Act] FMLA rights was the sole or most important factor upon which the employer acted;” but must only show that the employer “consider[ed] an employee’s FMLA leave ‘as a negative factor’ in employment decisions.”

The Family and Medical Leave Act of 1990, as amended, prohibits an employer from interfering with, restraining, or denying the exercise of or the attempt to exercise, any right provided by the FMLA.  29 U.S.C. §2615(a)(1).

Congress expressly gave the Secretary of Labor the authority to prescribe regulations necessary to carry out the FMLA.  29 U.S.C. §2654.  Pursuant to this authority, the Department of Labor prepared a final rule interpreting §2615(a)(1) that states:

“The Act’s prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. … [E]mployers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions… .”

29 CFR § 825.220(c)(emphasis provided).

Although the purpose of 29 CFR § 825.220(c) was to clarify that “interference” with FMLA rights includes taking negative action against an employee for exercising FMLA rights– including the right to take medical leave,  courts typically refer to an employee’s claim that he has been discriminated against for taking FMLA leave as a “retaliation” claim.  Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1247 (11th Cir. 2015).

To state a claim for such FMLA retaliation, an employee must allege sufficient facts to plausibly suggest that: “(1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment decision; and (3) that the decision was causally related to the protected activity.” Id.

 The Department of Labor’s regulation provides that a plaintiff can carry his burden of proof in such a case by showing that the exercise of his FMLA rights was a “negative factor” or a “motivating factor” in the defendant’s decision.

The 2013 Eleventh Circuit pattern jury charges suggest, however, that pursuant to the Supreme Court’s decisions in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009)(ADEA case) and University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 186 L. Ed. 2d 503 (2013)(Title VII retaliation case) the “traditional”  but-for causation standard should be applied to FMLA retaliation claims because the FMLA does not specify a  burden of proof.  The 2013 pattern FMLA retaliation charge states that in order to prevail a plaintiff must show that his “FMLA-protected activity was the main reason for defendant’s decision.” Eleventh Circuit Pattern Jury Instructions- Civil (2013), Instruction 4.15 (emphasis added).

The Eleventh Circuit pre-Gross and Nassar Instruction used a “substantial or motivating factor” analysis, providing: “It is not necessary for the Plaintiff to prove that leave or the request for leave was the sole or exclusive reason for Defendant’s decision.  It is sufficient if the Plaintiff proves that [taking the leave] [requesting of leave] was a determining factor that made a difference in to the employer’s decision.” Eleventh Circuit Pattern Jury Instructions- Civil (2005), Instruction 1.8.1.

Until this month, neither the Eleventh Circuit nor any other Circuit had decided whether Gross and Nassar require this change.  See Caldwell v. Clayton County Sch. Dist., 604 Fed. Appx. 855, 860 (11th Cir. 2015) (holding without considering this issue that a plaintiff  in an FMLA retaliation case must show only that “the protected activity and adverse action were not completely unrelated.” )  See also Klein v. L-3 Communs. Corp., 2013 U.S. Dist. LEXIS 156663, *47-48 n.19 (M.D. Ala. Nov. 1, 2013)(“ [T]he Court is unaware of any case law extending the holding of Nassar to FMLA retaliation claims, and, therefore, it will continue to follow the proximate cause analysis”).

The first federal circuit court to expressly consider this issue now holds that a “motivating factor” test rather than a “but for” burden of proof should be applied to FMLA retaliation claims under 29 U.S.C. §2615(a)(1).  In Egan v. Del. River Port Auth., 2017 U.S. App. LEXIS 4993 ( 3^rd Circ. March 21, 2017), the Third Circuit Court of Appeals found that although no causation standard was stated for FMLA retaliation claims, the Department of Labor’s construction of the statute was reasonable and was entitled to Chevron deference.  The Court concluded that instead of refusing to give a “mixed motive” charge because there was no direct evidence of retaliation, the District Court “should have determined whether there was [circumstantial] evidence from which a reasonable jury could conclude that the [defendant] had legitimate and illegitimate reasons for its employment decision and that [plaintiff]’s use of FMLA leave was a negative factor in the employment decision.”

In so doing, the Court reaffirmed pre-Nassar precedent holding that an employee in an FMLA retaliation case need not show that exercising FMLA rights “was the sole or most important factor upon which the employer acted;” but need only show it was a “negative factor” in an adverse employment decision.