Colburn v. Parker Hannafin/Nichols Portland Div.
_F.3rd__ 11/18/2005
LYNCH
Claim for retaliatory discharge is not extinguished by fact plaintiff could not return to work at the end of his leave under the Family and Medical Leave Act.
In a case regarding retaliatory discharge for the employee taking leave under the Family and Medical Leave Act, the Court affirmed the District Court's grant of summary judgment to the employer, though on different grounds.
The employee allegedly suffered debilitating migraines from October 2001 through January 2002, during which he missed 25 days of work. He then went on unpaid leave under the Family and Medical Leave Act. The employer then hired a private investigator to track the patient's activities, because he had not submitted any medical documentation for his condition and couldn't be reached at home on days he called in sick. The investigator observed the employee doing such activities as going to a gym and video store while he claimed he was out of work due to migraines. Following this, he was terminated for misconduct.
At that time, the employee had not exhausted his 12-week medical leave under the Family and Medical Leave Act. He admitted that he would not have been able to return to work until April 2003, well past the date his FMLA leave would have expired.
Following termination, the employee filed claims for two alleged violations under the FMLA: 1) That the employer violated his substantive rights under the FMLA by failing to restore him to his former position after leave; and 2) That the employer fired him in retaliation for taking medical leave. The lower court granted the employer's motion for summary judgment, and the Court of Appeals affirmed for lack of evidence of either discriminatory retaliation or interference with the employee's substantive FMLA rights. The Court discussed the nature of the two claims.
Justice Lynch stated that the FMLA contains two "distinct" provisions, one establishing substantive rights and one providing protection for the exercise of those rights. An employee's substantive rights are an entitlement to 12 weeks of unpaid medical leave, with reinstatement to his former or a similar position. Secondly, §2615(a) of the statute prohibits employers from interfering with these rights, including discriminating against the employee for exercising any rights under the FMLA.
Furthermore, §2615(b) states that it is unlawful to "discharge or...discriminate" against someone because they are involved in an FMLA proceeding. As Justice Lynch noted, however, the act fails to clearly differentiate employer interference from discrimination, and the two may overlap at times.
Additionally, though retaliatory discrimination is not specifically mentioned in the FMLA, circuit courts have recognized it as a cause of action. The First Circuit has allowed such claims based on federal regulation 29 C.F.R. §825.220(c), which prohibits employers "from discriminating against" employees who take FMLA leave. The regulation does not indicate which subsection it is based on, leading courts to disagree whether interference and retaliation claims are similar or distinct claims with different standards of proof.
The Court said that whether or not the claim is characterized as interference, the elements of the claim will depend on whether the employee is alleging interference or retaliatory discrimination. The employee's burden on an interference claim is to prove that he was entitled to the leave; the employer's motives do not come into play. In a retaliatory discharge claim, however, the employee has the ultimate burden of proving by a preponderance of the evidence that the termination was based on the employer's motivation to punish the employee for exercising his FMLA rights.
The Court then affirmed that the employee's rights were not interfered with because the employer had no obligation to reinstate him following leave, as he could not perform an essential function of his job. However, it also rejected the District Court's holding that this lack of interference automatically extinguished the retaliation claim. Instead, the Court held that employees may pursue retaliation claims even if there has been no interference with substantive rights, as retaliatory claims provide independent damages.
In analyzing the retaliation claim, the Court stated that inferential rather than direct evidence could be used, following the McDonnell-Douglas framework. (It noted that it was not clear if a mixed motive analysis can be used in FMLA retaliation cases, but declined to decide this issue as it was inapposite.) Applying McDonnell-Douglas, the Court held that the employer's alleged motive for termination-that the employee had falsified his absentee reports-was not, as the employee alleged, a pretext for retaliatory termination.
The Court rejected the plaintiff's various arguments for pretext, including that the surveillance was an "extraordinary" action, as the Court noted that the employer had done it for similar employees. It also found that the fact the employer had relied on the employee's reports of migraines and their effects rather than doing its own research did not suggest an ulterior motive. It also rejected as evidence of a discriminatory motive the fact that one administrator had spoken to the employee in a hostile tone two months before his discharge. Finding no discrimination, the Court affirmed summary judgment to the employer.
