Burdens of Proof Under the FMLA – An Elusive Animal.
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. Last month we discussed the Interference/Entitlement theory and the split in the Circuits on the appropriate burden of proof to apply in those cases. In this article, we consider the Discrimination/Retaliation theory, which has caused less conflict.
Claims Under the FMLA
Recall that the whole burden of proof issue arises because the FMLA provides two distinct types of protections to employees: "prescriptive" or "substantive" rights, and "proscriptive" rights.[2] 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.[3]
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.[4] 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.
The Discrimination/Retaliation Theory
When a claim is brought alleging a violation of under Section 2615(a)(2), most courts use the McDonnell-Douglas v. Green [5]three part burden-shifting test developed under Title VII and other anti-discrimination statutes.[6]
Under the McDonnell-Douglas framework, as adapted to FMLA discrimination/retaliation claims, a plaintiff must initially set forth a prima facie case of prohibited discrimination. To establish a case of discriminatory discharge under the FMLA, the plaintiff must establish that (1) she engaged in protected activity; (2) the employer took an adverse employment action against the employee; and (3) there is a causal connection between the employee's protected activity and the employer's adverse employment action.[7]
Once a prima facie case is established, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. If the defendant meets this burden, the presumption raised by the prima facie case is rebutted and the plaintiff must demonstrate that the reason given by the employer is pretextual. Following the Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc., [8]a plaintiff's prima facie case of discrimination, combined with sufficient evidence from which a reasonable fact finder could disbelieve an employer's nondiscriminatory explanation and make the ultimate fact-finding that illegal discrimination occurred, may form the requisite evidentiary basis upon which to submit to a jury the question of an employer's intentional, unlawful discrimination. The burden of production shifts during this analysis, but the burden of pervasion remains with the plaintiff.
The plaintiff may rely upon direct or circumstantial evidence to support her claims. There is no need to perform this analysis where direct evidence of a violation exists. When circumstantial evidence exists, the FMLA adoption of McDonnell-Douglas formulation is a hybrid between the disparate treatment analysis and the retaliation analysis under Title VII. As the Supreme Court stressed in McDonnell-Douglas, however, the methodology is meant to be fluid, not rigid. Moreover, the Supreme Court's decision in Swerkiewicz v. Sorena, N.A., [9]reinforced that there is no heightened pleading requirement and that the plaintiff need meet only the Requirement of Federal Rule of Civil Procedure 8(a)(2), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief."
The Prima Facie Case
Following the McDonnell-Douglas formula, the prima facie case is not meant to be rigid or difficult to meet. If, however, there is no harm to the plaintiff, there can be no prima facie case. Typically, this means if there is no adverse employment action, one element of the prima facie case has not been met.[10]
The ways in which an employee can claim to have engaged in protected activity are many and varied. A plaintiff need not have initiated a lawsuit to be considered to have opposed an employer's unlawful practice.[11] Requesting FMLA leave, or the submission of forms to begin the process, constitutes protected activity.[12] A demand letter attempting to resolve a dispute over an employer's obligations under the FMLA will likewise suffice.[13]
One interesting question is whether the employee who has asked for leave, or simply called in sick, but who has provided enough information from which the employer could conclude that the absence might be for a FMLA qualifying reason, would be found to have engaged in "protected activity." Courts have not addressed this specific issue, and the answer depends largely on the particular facts of the case. It seems possible, however, that such a scenario would constitute protected activity, since the DOL Regulations do not require that the employee mention the FMLA to be protected.
The Adverse Employment Action
Any substantial employment action that is to the detriment of the employee will suffice to establish that an adverse employment action occurred. The FMLA specifically provides that it is unlawful "to discharge or in any other manner discriminate"[14] against an employee. Courts considering "adverse employment actions" under other anti-discrimination laws have held that they need not be the ultimate employment action. This reasoning has been applied in FMLA cases. The Fourth Circuit has held that an adverse employment action under Title VII is an "act or harassment [that] results in an adverse effect on the 'terms, conditions, or benefits' of employment."[15] Thus, for example, a demotion, denial of salary adjustment, transfer to a non-similar position, delay in reinstatement, or suspension can all constitute adverse employment actions. Courts have not been favorably responsive to constructive discharge claims under the FMLA, however.[16]
The Causal Connection
The third prong of the prima facie case is perhaps the most difficult to grasp conceptually. If there is any causal connection between protected activity and an adverse employment action, should not that be enough to establish a violation of the Act? As seen in last month's discussion of interference/entitlement claims -- where intent is not required -- courts are leaning in that direction under Section 2617(a)(1). Where intent is required, however, establishing the existence of the possibility of a causal relationship is really what the third prong of the prima facie case contemplates, not actual proof that the causal relationship exists.
To establish the causal connection element, "a plaintiff need only show 'that the protected activity and the adverse employment action were not wholly unrelated.'"[17] Direct evidence of discrimination or retaliation, of course, eliminates the need for further analysis. Direct evidence is rare, but it does exist.[18] More often the plaintiff attempts to demonstrate the inference of discrimination or retaliation through the "proximity" in time between the protected activity and the adverse employment action. It is not easy to predict the span of time that a court will find sufficient to meet the causal connection requirement, as most cases turn closely on the facts and courts consider the totality of the evidence. If the adverse action occurs in a matter of days or hours after the protected activity, a court will typically find a causal connection has been established. [19] A causal connection can be established by looking at similarly situated employees: were other employees who had not engaged in protected activity treated similarly. There can be no causal connection established if the employer was unaware of the protected activity when the adverse employment action occurred. [20]
The Legitimate Non-Discriminatory Reason
If the employee establishes a prima facie case, the burden of production -- not proof -- shifts to the defendant to articulate a legitimate non-discriminatory reason for the adverse employment action. Of course, the employer may also rebut the plaintiff's prima facie case directly establishing that there was no protected activity or no adverse employment action. As with establishing the causal connection, an employer can provide its legitimate non-discriminatory reason by demonstrating that similarly situated employees who did not engage in protected activity were treated in the same or similar matter.
Pretext
A plaintiff may establish that her employer's non-discriminatory reason for the adverse employment actions is pretextual by showing that the reason "(1) had no basis in fact, (2) did not actually motivate [her] discharge, or (3) [was] insufficient to motivate the discharge. [21] "A pretext, in employment law, is a phony reason that the employer offers for engaging in discriminatory conduct."[22] The wisdom of the employer's decision is not at issue; the genuineness of the employer's motives is significant. [23] A proffered "legitimate non-discriminatory reason" cannot be pretextual "unless it is shown both that the reason is false, and that discrimination is the real reason."[24]
Because a fact-finder may infer intentional discrimination from an employer's untruthfulness, evidence that calls truthfulness into question can preclude summary judgment. [25] Pretext, however, "means more than an unusual act; it means something worse than a business error: 'pretext' means deceit used to cover one's tracks." [26] Evidence to establish pretext includes (again) the treatment of employees differently if they have not engaged in protected activity; or responding in a negative way upon learning that the employee engaged in protected activity.
For example, in Carter v. Enterprise Rent-A-Car,[27]the plaintiff was terminated six days after requesting FMLA leave, ostensibly for misuse of the company gas credit card. In opposing summary judgment, the plaintiff provided evidence that other employees used the credit card in the same way; that the company only became concerned about her use of the credit card after she requested FMLA leave; and that she was the only employee punished, despite the fact that other employees used the credit card in the same way. On these facts the trial court rejected the company's motion for summary judgment.
Conclusion
Courts will continue to wrestle with burden of proof issues in FMLA cases. Practitioners are well advised to check developments in this area frequently when assessing an FMLA claim.
[1] 29 U.S.C. §§ 2601 et seq.
[2] Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir. 1998); Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1148 (8th Cir. 2001); Diaz v. Ft. Wayne Foundry Corp., 131 F.3d 711, 712 (7th Cir. 1997).
[3] McBride v. Citgo Petroleum Corp., 281 F. 3d 1099, 1108 (10th Cir 2002)(referring to Renaud v. Wyoming Dep't of Family Servs., 203 F.3d 723 (10th Cir 2000) and Gunnell v. Utah Valley State College, 152 F.3d 1253 (10th Cir. 1998) as having been brought under the interference theory). See also Tate v. Farmland Indus., 268 F.3d 989, 997 (10th Cir. 2001) (holding that an employee could maintain a cause of action where the employee had FMLA rights and the employer's actions were alleged to have interfered with those rights).
[4] Morgan v. Hilti, 108 F.3d 1319, 1325 (10th Cir 1997).
[5] 411 U.S. 792 (1973). See Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 142- 43 (2000).
[6] See, e.g., King v. Preferred Technical Group, 166 F.3d 887 (7th Cir. 1999); Strickland v. Water Works and Sewer Board of the City of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001); Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319 (5th Cir. 1999); Hodgens v. General Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998); Morgan v. Hilti, Inc 108 F.3d 1319, 1324 (10th Cir. 1997).
[7] See King, supra, 166 F.3d at 891; Earl v. Mervyns Inc., 207 F.3d 1361, 1367 (11th Cir. 2000).
[8] 530 U.S. 133, 120 S. Ct. 2097 (2000).
[9] 534 U.S. 506 (2002).
[10] Trembley v. Liberty Enterprises, Inc., 2001 U.S. Dist. LEXIS 19030 (D. Minn. 2001) (threat to terminate if FMLA forms not submitted, but no actual termination is not adverse employment action); Johnson v. U.S.P.S., 2001 U.S. Dist. LEXIS 12594 (M.D.N.C. 2001) (no FMLA claim where employee had not lost wages, salary, benefits or other employment compensation.
[11] Of course, the Act does provide that instituting any "proceeding" is protected, as is providing testimony or information in an FMLA matter. 29 U.S.C. § 2615(b).
[12] Carter v. Enterprise Rent-A-Car Co., 2002 U.S. Dist. LEXIS 13865 (N.D. Ill. 2002).
[13] O'Neal v. Ferguson Construction Co., 237 F.3d 1248 (10th Cir. 2001); Sanders v. The May Department Stores, 2001 U.S. Dist. LEXIS 11495 (E.D. Mo. 2001).
[14] 29 U.S.C. § 2615(a)(2).
[15] VanGunten v. Maryland, 243 F.3d 858 (4th Cir. 2001). See also Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998) (rejecting "intimate employment action" requirement); Robinson v. City of Pittsburgh, 120 F.3d 1286 (3rd Cir. 1997) (requirement that action be "materially adverse" to employee); Ledergerber v. Stangler, 122 F.3d 1142 (8th Cir. 1997) (same).
[16] See, e.g. Hammon v. DHL Airways, 165 F.3d 441, 447 (6th Cir. 1999) ("effective" resignation not adverse employment action); Trembly v. Liberty Enterprises, Inc., 2001 U.S. Dist. LEXIS 19030 (D. Minn. 2001) (granting summary judgment for employer where incidents not severe or pervasive enough to force employee to resign); Graham v. State Farm Mutual Ins., 193 F.3d 1274 (11th Cir. 1999) (no adverse employment action resulting from memo that warned employee about future non-FMLA absences, and her voluntary quit as a result was not a constructive discharge).
[17] Clover v. Total Sys Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999) (quoting Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir. 1985).
[18] See, e.g., Carpenter v. Refrigeration Sales Corp., 49 F. Supp.2d 1028 (N.D. Ohio 1999) (employee fired for absences when she announced that she had hepatitis). As with direct evidence claims under other anti-discrimination laws, FMLA direct evidence claims are less common as employers become more familiar with the requirements of the Act.
[19] Carter v. Enterprise Rent-A-Car, 2002 U.S. Dist. LEXIS 13865 (N.D. Ill. 2002) (six days).
[20] See Dey v. Colt Construction & Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994) (Equal Pay Act case).
[21] McClendon v. Indiana Sugars, Inc., 108 F.3d 789 (citing Collier v. Budd Co., 66 F.2d 886, 892 (7th Cir. 1995).
[22] Mills v. First Fed'l Sav. & Loan of Belvidere, 83 F.3d 833, 845 (7th Cir. 1996)(quoted in Hauge v. Equistar Chem. Co., 2002 U.S. Dist. LEXIS 15822 (N.D. Ill. 2002)).
[23] See, e.g., Testerman v. EDS Technical Products Corp., 98 F.3d 297, 304 (7th Cir. 1996).
[24] King v. Preferred Tech. Gp., 166 F.3d 887, 893 (7th Cir. 1999). The Supreme Court addressed the level of evidence necessary to overcome a motion for judgment when 'pretext' is at issue in Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 120 S. Ct. 2097 (2000).
[25] Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir. 1995).
[26] Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005 (7th Cir. 2001).
[27] 2002 U.S. Dist. LEXIS 13865 (N.D. Ill. 2002).
February 2003
Reprinted by permission from Matthew Bender's "Labor and Employment Bulletin."
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