The Sixth Circuit recently resolved an issue of uncertainty for Michigan employees and employers when it comes to analyzing Family and Medical Leave Act (FMLA) interference claims. Going forward, employees must satisfy the burden-shifting framework common to employment discrimination claims when evaluating FMLA interference claims.
The FMLA, 29 USC 2601 et seq., was originally enacted to balance the demands of the workplace while providing employees the ability to take reasonable leave for personal or family medical reasons.
Among the FMLA’s statutory requirements, it imposes on employers two prohibitions to ensure that employees will not suffer an adverse employment action for taking FMLA protected leave. Specifically, under the interference provision, “[i]t shall be unlawful for an employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.”
Under the discrimination provision, it is unlawful for an employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by the FMLA. Congress modeled this provision after Title VII of the Civil Rights Act, as under the Civil Rights Act an employee is protected from employer retaliation for opposing a practice protected under that act.
How FMLA Interference Claims against Michigan Employers are Decided
In the Sixth Circuit (the Federal Jurisdiction that includes Michigan), there was no dispute that what is known as the McDonnell Douglas burden-shifting framework applied to FMLA retaliation suits (as opposed to interference claims) when the plaintiff produced indirect evidence of a causal connection between the protected activity and the adverse employment action.
Under the McDonnell Douglas burden-shifting framework a plaintiff must make out a prima facie case of discrimination by showing that (1) The employee availed herself of a protected right under the FMLA by notifying the employer of the employee’s intent to take leave; (2) The employee suffered an adverse employment action; and (3) That there was a causal connection between the exercise of the employee’s FMLA rights and the adverse employment action. If the employee satisfies these three requirements, the burden then shifts to the employer to proffer a legitimate, nondiscriminatory rationale for discharging the employee.
Prior to the Donald v Sybra court opinion it was unsettled (sort of) if the preceding burden-shifting framework applied to FMLA interference claims. The Donald Court resolved this issue in favor of applying the McDonnell Douglas burden-shifting framework.
Interestingly, the Court concluded that this issue had actually been decided by a prior court opinion (Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008)) because that court opinion effectively adopted the McDonnell Douglas test without saying as much (under federal procedural rules, a reported panel opinion like the Grace opinion are binding on subsequent courts. See 6 Cir. R. 206(c)).
The Take Away
From a practical standpoint, the Donald opinion is not a game changer in that employers, employees, and their attorneys are intimately familiar with the McDonnell Douglas framework, which had long been applied to FMLA retaliation suits.
A more interesting question, however, was asked by Jon Hyman of the Ohio Employer’s Law Blog of whether the McDonnell Douglas test should be scrapped entirely.
For employers, a more practical take-away from this case is that an employee may be lawfully terminated for legitimate business reasons even when FMLA leave is in play.
Consider for example that in Donald the employee had worked for the employer for over two years. And during this time she had experienced a number of health problems that forced her to miss a substantial periods of work. But Donald was fired only after the employer suspected that she entered customer orders improperly to steal cash from her register. Thus the Court of Appeals agreed with the trial court that the employee failed to produce sufficient evidence to prove that her employer’s stated reasons, cash register and order irregularities, were pretextual. Therefore, the employer did not violate the FMLA because its termination decision was based on legitimate, non-discriminatory reasons.
Terminating an employee who has excercised FMLA rights, however, is not without risks. But by collaborating with an experienced employment lawyer, these risks can be managed in order to put the employer in the best position for successfully defending against a prospective FMLA discrimination claim.