The Federal Family and Medical Leave Act ("FMLA") arms employees with two types of causes of action against employers. The FMLA's "interference" provision declares it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise" any right provided by the FMLA. 29 U.S.C. 2615(a)(1). And its "retaliation/discrimination" provisions prohibit employers from discharging or discriminating against employees for "opposing any practice made unlawful" by the FMLA. 29 U.S.C. 2615(a)(2); 2615(b).
This dichotomy of claims informs the framework for analyzing an FMLA claim. Retaliation/discrimination claims are analyzed under traditional anti-discrimination burden-shifting standards - the McDonnell Douglas and Price Waterhouse standards. But these traditional standards do not apply to interference claims. Rather, when an employee asserts interference with his or her FMLA entitlement, he or she generally has to show only that he or she was entitled to benefits under the FMLA and was denied them. Put simply, if an employee is denied a lawfully entitled right under the FMLA, the employer is deemed to have violated the FMLA regardless of the employer's intent.
On the surface, this dichotomy appears self-evident. It becomes convoluted, however, in a wrongful discharge claim brought under the FMLA. Consider a hypothetical:
Average Jane employee of ABC corporation starts to have attendance problems. When confronted by Supervisor Nice Guy she provides vague or unacceptable excuses. So, Supervisor Nice Guy places Jane on a performance improvement plan warning her to improve her attendance. Initially, Jane's attendance improves. But it begins to deteriorate and, as a result, Supervisor Nice Guy approaches Jane again about her absences. She admits that some of her absences were to care for her ill child and the remainder were unexcused. Jane is terminated based on her excessive absences. She subsequently brings an FMLA claim against ABC for wrongful termination in violation of her right to take job-protected leave.
Under these facts, Jane took the leave she wanted. She is not claiming that ABC prevented her from taking the FMLA-protected leave she needed or denied her an FMLA entitlement. Therefore, Jane is not asserting a straightforward interference claim within the purview of 2615(a)(1). Nor is Jane asserting that ABC terminated her employment for opposing an act prohibited by the FMLA. So, she is not asserting a direct claim under the retaliation/ discrimination provisions of the FMLA. Rather, Jane asserts a claim that does not fit neatly into the FMLA dichotomy of claims. This type of hybrid claim presents a quandary for litigants and courts alike.
That said, courts agree that an employer violates the FMLA if it discharges an employee in retaliation for taking FMLA-protected leave. But should this type of claim be litigated as an FMLA "interference" or "retaliation/discrimination" cause of action? The distinction can be critical to the viability of the employee's claim because it dictates the standard of proof applied. Yet, litigants and courts continue to struggle with how to characterize a wrongful discharge claim. This semantic confusion has led many courts to apply anti-discrimination standards of proof to these claims without addressing the distinction between the causes of action. Or, courts will attempt to pigeon-hole the claim but apply anti-discrimination standards regardless of the characterization announced.
Some litigants contend the confusion ended with the Ninth Circuit's decision in Bachelder v. American West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001). There the Circuit Court found that FMLA regulation 29 C.F.R. 825.220(c) was the controlling authority for a wrongful discharge claim. Section 825.220(c) states, in pertinent part, that "employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions." The Court concluded that, although 825.220(c) speaks in terms of discrimination, it implements the "interference with the exercise of rights" section of the statute, 29 U.S.C. 2515(a)(1), and not the anti-retaliation or anti-discrimination sections, 2615(a)(2) and (b). The Ninth Circuit, therefore, found its analysis "fairly uncomplicated;" refused to apply traditional anti-discrimination burden-shifting frameworks; and applied a more plaintiff-friendly standard of proof to wrongful discharge claims. That standard requires the plaintiff to prove only that his or her taking of FMLA-protected leave constituted a negative factor in the decision to terminate him or her. Id. at 1125.
Despite Bachelder, the Third Circuit continued to apply anti-discrimination burden-shifting standards to wrongful discharge claims. See Conoshenti v. Public Service Electric & Gas, 364 F.3d 135 (3d Cir. 2004). In a footnote, however, the Third Circuit weighed in on the interference versus retaliation/discrimination debate, agreeing with the Bachelder Court that a wrongful discharge claim under the FMLA is brought under regulation 825.220(c). Id. at 146 n. 9. But, while acknowledging that the regulation appeared to be an implementation of the FMLA's interference provision, the Court held that "[ 825.220(c)'s] text unambiguously speaks in terms of 'discrimination' and 'retaliation' and we shall, of course, apply it in a manner consistent with that text." Id.
Like the Third Circuit, many courts readily apply the traditional anti-discrimination standards to wrongful discharge claims. Indeed, even some district courts in the Ninth Circuit, albeit incorrectly because of the binding authority there, apply these standards. See Liu v. Amway Corp., 347 F.3d 1125, 1136 (9th Cir. 2003). But plaintiffs are fighting more than ever for the Bachelder standard. For example, in two recent district court cases out of the Third Circuit the plaintiffs argued that the defendant employer was not entitled to the benefit of the shifting burden of persuasion under either McDonnell Douglas or Price Waterhouse . Although unsuccessful, the continued discussion may ultimately force the Third Circuit to revisit its Conoshenti footnote. See Hicks v. Tech Indus., 2007 WL 1300774, *18 (W.D. Pa. May 3, 2007); Tamayo v. Deloitte & Touche, LLP, 2007 WL 135975, *5 (D.N.J. January 16, 2007). More important, some Circuits' landscapes, such as the Second Circuit, remain wide open for persuasion and argument.
Courts in the Second Circuit allow suits in which plaintiffs claim they were terminated for taking FMLA-protected leave to proceed as both a retaliation and interference claim. And, the Second Circuit has somehow avoided the question as to what standard should be utilized in analyzing FMLA wrongful discharge claims - i.e., McDonnell Douglas/Price Waterhouse or Bachelder. As a result, some district courts in the Second Circuit apply the McDonnell Douglas analysis, while others follow the standard enunciated in Bachelder. In the Southern District of New York, for example, while one court explicitly refuses to apply the McDonnell Douglas standard to a wrongful discharge claim, see Mann v. Mass. Correa Elec., J.V., 2002 WL 88915 (S.D.N.Y. January 23, 2002), another applies both standards denying summary judgment and ultimately avoiding the issue.
So, when faced with a wrongful discharge claim premised on the FMLA, what's an employer to do? First, the employer's counsel should immediately become familiar with the relevant jurisdiction's treatment of these types of claims. Generally, the defense should attempt to control the characterization of the claim and should not permit the employee to couch his wrongful termination claim as an interference cause of action. Employers must be vigilant in promoting the application of the anti-discrimination burden-shifting standards, to avoid application of the more plaintiff-friendly interference standard, where the employer's motive is irrelevant.
Then, with the desired legal framework in mind, defendants should devise a thorough litigation strategy early on. To accomplish this, employers must consider what testimony and discoverable documents the plaintiffs will be seeking to support an interference claim, and where to guide discovery to fall within the anti-discrimination framework. They should also consider whether the plaintiffs have direct or indirect evidence and, thus, whether the McDonnell Douglas or Price Waterhouse standard will apply.
Armed with this information, employers will be better equipped to move for summary judgment and argue for the application of anti-discrimination standards. In these situations, it may be common that the employer will prevail on the law but ultimately be denied summary judgment on the facts. But this result is far better, and leaves more room for debate and favorable outcomes, than if the employee's claim was treated as an interference cause of action.
Published July 1, 2007.
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