Burdens of Proof Under the FMLA – An Elusive Animal. (1 of 2)

Burdens of Proof Under the FMLA – An Elusive Animal.

(The first of a two part series)

by Darrell R. VanDeusen

One of the developing conflicts under the Family and Medical Leave Act (FMLA or Act)^[1] is the appropriate burden of proof to be applied in assessing a plaintiff's claim. In the first few years after the FLMA became law in 1993, many courts automatically applied the McDonnell-Douglas analysis in all cases, as they do when addressing virtually every other employment related claim. After ten years, however, courts are focusing more directly on burden shifting issues.

Denying cross motions for summary judgment in Parker v. Hahnemann Univ. Hosp.,^[2] the Federal District Court for New Jersey recently applied different burdens of proof when considering a plaintiff's two FMLA claims – one alleging denial of reinstatement, and the other alleging retaliation. On the deprivation of rights claim, the court held that if the plaintiff could establish she was denied a right afforded by the FMLA, the burden of proof would shift to the employer to demonstrate that the plaintiff would have been denied the right even if she had not taken FMLA leave. On her retaliation claim, however, the court followed the McDonnell-Douglas formula and did not shift the burden of proof to the employer.

Claims Under the FMLA

The burden of proof issue arises because the FMLA provides two distinct types of protections to employees: "prescriptive" or "substantive" rights, and "proscriptive" rights. ^[3] The "prescriptive" or "substantive" rights include an employee's right to receive up to twelve weeks unpaid leave for a serious health condition, and the right to reinstatement following the leave. Claims for violation of these rights are brought under 29 U.S.C. § 2615(a)(1) and are typically referred to as invoking the "interference" or "entitlement" theory. ^[4]

The "proscriptive" rights include an employee's right not to be discriminated against or retaliated against for exercising FMLA rights. Claims for violation of the anti-discrimination provisions are brought under 29 U.S.C. §2615(a)(2) and invoke the "discrimination" or "retaliation" theory. ^[5] A plaintiff's complaint often fails to distinguish the theory under which the alleged violation is brought, however, and this accounts for much of the confusion over the years. This month we will discuss the interference/entitlement theory. Next month we will discuss the discrimination/retaliation theory.

The Interference/Entitlement Theory

Congress made it unlawful for an employer to "interfere with, restrain, or deny the exercise of or the attempt to exercise , any right provided" by the Act. ^[6] The Regulations address this requirement in Section 825.220, and provide, for example, that "[E]mployers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies. ^[7] The language of the Act prohibiting "interference" and "restraint" is similar to that of the National Labor Relations Act. ^[8] In Bachelder v. America West Airlines, ^[9] the Ninth Circuit stressed the close relationship of the language with to Section 8(a)(1) of the NLRA, in holding that 29 U.S.C.§ 2615(a)(1) create substantive rights and that Regulation Section 825.220©) is a valid interpretation of the statute. ^[10]

In Bachelder, the court rejected the need for use of the McDonnell-Douglas v. Green ^[11] three part burden-shifting test used under Title VII and other anti- discrimination statutes in interference cases. Bachelder had an attendance problem. Some of her absences were legitimately FMLA related, for which she was granted leave. After many more absences, Bachelder was fired for poor attendance. Bachelder claimed that her absences were FMLA protected when using the method for calculating leave taken in the past twelve months that was most favorable to her. She also claimed that her employer used her prior FMLA leave as a basis for the termination decision. America West countered that it used the rolling twelve month method for calculating leave entitlement and, as such, Bachelder's absences were not protected. The company also denied that it used Bachelder's prior legitimate FMLA leave as a basis for the termination decision. The trial court granted summary judgment for America West on the calculation issue, and after a bench trial found that America West had not used Bachelder's prior FMLA leave as a basis for the termination decision.

On appeal, the Ninth Circuit reversed, holding that the trial court did not use the appropriate analysis. Because Bachelder invoked her substantive right to be free from interference under Section 2615(a)(1), she need only prove by a preponderance of the evidence that her taking of FMLA protected leave constituted a negative factor in the decision to terminate her. Bachelder could do this by direct or circumstantial evidence. No burden shifting scheme was necessary. Since there was no dispute that Bachelder was fired for her absences, the only question was whether the absences were FMLA protected. Here, America West's handbook did not provide sufficient notice to employees that it was using the "rolling 12 month" period for calculating leave entitlement, and Bachelder was entitled to use the method most advantageous to her. The court remanded the case for the entry of summary judgment in favor of Bachelder.

The Tenth Circuit addressed the allocation of the burden of proof under the interference/entitlement theory in Smith v. Diffee Ford-Lincoln-Mercury, Inc.,^[12] noting that it obtains from the FMLA's creation of substantive rights, and does not require a demonstration that the employer intended to violate the Act. As such, this theory -- and its method of proof -- is substantially different from the discrimination theory, which requires intent. If an employer interferes with the FMLA-created right to leave or to reinstatement following leave, a deprivation of this right is a violation regardless of the employer's intent. ^[13] In such a case, "the employee must demonstrate by a preponderance of the evidence only entitlement to the disputed leave . . . . [T]he intent of the employer is immaterial."^[14]

Of course, "[u]nder FMLA, an employee who requests leave or is on leave has no greater rights than an employee who remains at work."^[15] And "an employee who requests FMLA leave would have no greater protection against his or her employment being terminated for reasons not related to his or her FMLA request than he or she did before submitting the request."^[16] Thus, an employee who's position is eliminated while on leave, but who would have suffered the same fate if she had been at work, has no FMLA claim. An employee may be dismissed, preventing her from exercising her statutory right to FMLA leave -- but only if the dismissal would have occurred regardless of the employee's request for or taking of FMLA leave. ^[17]

The Tenth Circuit stressed in Smith that the fact the interference/entitlement theory and the retaliation/discrimination theory are recognized as separate theories makes it evident, that retaliation is not the only impermissible reason for dismissal. A plaintiff can prevail under an entitlement theory if she was denied her substantive rights under the FMLA for a reason connected with her FMLA leave. Such a reason need not be retaliation, which falls into the discrimination theory.

On the other hand, a reason for dismissal insufficiently related to FMLA leave does not result in recovery under the interference theory. In McBride,^[18] the Tenth Circuit affirmed a grant of summary judgment to an employer where an employee argued that the illness that led to her taking FMLA leave had also caused the performance problems for which she was terminated. The court reasoned that the FMLA does not protect employees from dismissal for poor performance caused by illness, or the right to demonstrate improved performance when not ill. The indirect causal link between an employee's termination and FMLA leave, even if resulting from the same cause, is inadequate as a basis for recovery.

The Tenth Circuit held in Smith that the burden of proof rests on the employer in interference cases. This determination is based upon the language of Section 825.216(a) of the Regulations, which provides: "An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment,"^[19] and by way of example states that:

An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration.

^[20]

Conclusion

The Circuits are split on this burden of proof issue. The Eleventh Circuit, like the Tenth Circuit in Smith has required that once an employee proves she was denied reinstatement after FMLA leave, the employer must prove she would have been laid off anyway for some other reason. ^[21] The Ninth Circuit in Bachelder took an approach that mirrors the NLRA's determination of unfair labor practices under Section 8(a)(1) of the NLRA, suggesting an employee will prevail if her rights were "chilled." The Seventh Circuit has not shifted the burden of proof to the employer. ^[22]

The lesson to be learned? Until there is direction from the Supreme Court, both plaintiff and defense lawyers need to clearly understand the theory under which an FMLA claim is brought, and to carefully consider the Circuit precedent involved.

^[1] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[2] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[3] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[4] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[5] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[6] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[7] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[8] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[9] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[10] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[11] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[12] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[13] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[14] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[15] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[16] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[17] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[18] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[19] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[20] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[21] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

^[22] Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

January 2003

Reprinted by permission from Matthew Bender's "Labor and Employment Bulletin."

Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
Fax: 410-727-4391 © 1999 - 2010 Kollman & Saucier, P.A. All rights reserved.
Website maintained by Armistead Technologies, Llc.^tm