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Mixed-Motive Proof and FMLA Retaliation


What some employers may not realize is that, even when there is no direct evidence of retaliation, an employer typically has the ultimate burden of proving it did not engage in retaliation. A Third Circuit decision recently ruled that the mixed-motive theory applies to cases involving the Family & Medical Leave ACT (FMLA).

Migraines lead to a request for FMLA leave

The Third Circuit case involved an employee of the Delaware River Port Authority. He initially worked as a Project Manager for Special Projects. However, in March 2012, he was transferred to the Engineering Department. Although the employee had a history of migraines, after his transfer, the migraines became much more frequent. Consequently, he submitted a request for intermittent FMLA leave, which was granted.

Employer complaints about FMLA leave

The employer expressed concern about the fact that the employee only reported the approximate hours he was absent for intermittent FMLA leave, as opposed to the actual hours he was absent. According to the employer, this type of reporting was “causing a hardship in his department.” Then, in October 2012, the employee was terminated while absent on approved FMLA leave. His employer claimed that his assignment to the Engineering Department had ended and the business was eliminating all “economic development functions,” which actually made up only a small part of the employee’s job duties.

What is the burden of proof for FMLA retaliation?

After being terminated, the employee filed a lawsuit against his employer for FMLA retaliation, specifically for terminating him because he took FMLA leave. When the case went to trial, the employee requested that the court give the jury a mixed-motive instruction. That means the court would inform the jury that the employer has the burden of proving that it would have terminated the employee even if he had never taken FMLA leave.

The court refused to do so, however, because it did not believe this motive applied to FMLA cases, especially since the employee did not have “direct evidence” of retaliation. As a result, the court determined the burden of proof was that the employee’s FMLA leave “made a difference” in the employer’s decision to terminate him. The jury found in favor of the employer.

Employee’s appeal on the issue of burden of proof

The employee understandably appealed the jury verdict, based on the court’s decision regarding the required burden of proof. The Third Circuit ultimately reversed that decision. The appellate court’s decision was based on the U.S. Department of Labor regulation which provides that the FMLA prohibits employers from “discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights,” and that “employers cannot use the taking of FMLA leave as a negative factor in employment actions.”

In other words, according to the appellate court, when an employer makes an employment decision, such as the decision to terminate, the employer cannot view the employee’s FMLA leave negatively. For that reason, the mixed-motive proof pattern applies to FMLA retaliation claims.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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