Second Circuit Lowers Bar for Causation in FMLA Retaliation Claims
The U.S. Court of Appeals for the Second Circuit recently ruled that to advance a viable claim for retaliation under the Family and Medical Leave Act (FMLA), an employee need only demonstrate that exercising his or her rights under the FMLA, such as taking protected leave, was viewed as a negative factor by the employer in connection with an adverse employment action. This so-called “motivating factor” or “mixed-motive” standard is a lower burden of proof than the “but for” standard often applied to retaliation claims. A lower burden of proof will likely result in an increase in the number of FMLA retaliation claims that will survive summary judgment in Connecticut, New York, and Vermont, the states where the Second Circuit exercises federal appellate jurisdiction.
In the case before the Second Circuit, Woods v. START Treatment & Recovery Centers, Inc., No. 16-1318-cv (July 19, 2017), the plaintiff was a former substance abuse counselor at START’s nonprofit drug treatment facility. While employed at START, she had a well-documented record of poor performance, but also a history of taking leave under the FMLA to treat her anemia. After the company terminated the plaintiff’s employment for poor performance, she sued, alleging that her discharge was in retaliation for taking FMLA-protected medical leave.
At trial, not only was the reason for her discharge disputed, but the parties also disagreed on the standard of causation necessary to prevail on an FMLA retaliation claim. The employer argued that the plaintiff was required to show that the exercise of her FMLA rights was the “but for” cause of her discharge. The plaintiff argued that she must merely show that her taking of protected FMLA leave was a “negative factor” in motivating the employer’s decision to terminate her employment. The district court agreed with the employer and found that the plaintiff’s FMLA retaliation claim required a showing that she would not have been discharged “but for” her taking protected FMLA leave. The jury was thereafter instructed on the standard and returned a verdict on behalf of the employer. The plaintiff appealed the verdict to the Second Circuit, claiming that the district court instructed the jury on the wrong standard of causation.
The Second Circuit’s Decision
The Second Circuit agreed with the former employee, finding that she need only show that taking protected FMLA leave was a motivating factor in her discharge. The court found that because the statutory language of the FMLA was silent as to a causation standard, deference should be given to the United States Department of Labor’s (DOL) interpretation in its regulations. The regulations of the DOL provide that FMLA leave cannot be used as a “negative factor” in employment actions. The court deferred to the agency and held that an employee could succeed on an FMLA retaliation claim if he or she could demonstrate that protected leave was a negative factor in motivating an employer’s adverse employment action—even if it was not the traditional, and more stringent, “but for” cause of the employment action. Accordingly, the Second Circuit vacated the judgment of the district court and remanded the case for proceedings under the lessened standard.
The Second Circuit’s decision will likely result in an increase in the number of FMLA retaliation cases surviving summary judgment and proceeding to trial, as district court judges may be more hesitant to grant summary judgment if there is any credible evidence that the employee’s FMLA leave was viewed negatively by a manager. The issue of causation is still evolving however; not all circuit courts of appeals have weighed in on the appropriate standard, and this decision may not be the last word on this issue of causation. Indeed, it could be argued, as it was in the Woods case, that the Second Circuit’s decision is inconsistent with the stance of the Supreme Court of the United States that where statutes are silent as to causation standard, as is the case with the statutory text of the FMLA, the traditional “but for” standard should be applied. But for now, employers in Connecticut, New York, and Vermont could be held liable for firing an employee for legitimate business reasons if it can be shown that the employee’s use of protected FMLA leave was a motivating factor in the employer’s adverse employment action.