2d Circuit rejects "but for"causation test for FMLA retaliation claims

The Court of Appeals holds for the first time that FMLA plaintiffs only have to show their family/medical leave was a motivating factor in their retaliatory dismissal. The Court rejects the more defendant-friendly "but for" causation test.

The case is Woods v. START Treatment, decided on July 19. (In addition to the causation standard, the Court also says plaintiff got an unfair trial because the jury knew she had taken the Fifth on certain deposition questions. I address that in a separate blog post). This case went to trial in the EDNY; the jury returned a verdict in favor of the employer. Plaintiff appealed, arguing that the trial was fatally tainted because the judge charged the jury under the "but for" test and not the "motivating factor" test. Finding that the jury was in fact wrongly charged and the bad charge could have made a difference at trial, the Court of Appeals (Hall, Kearse and Chin) remands the case for a new trial.

Woods worked for a drug rehabilitation facility. In summarizing the evidence at trial, the Second Circuit notes that management had repeatedly criticized plaintiff's job performance. However, plaintiff was fired shortly after taking FMLA leave. Disputes about what motivated plaintiff's termination entitled her to a jury trial.

The FMLA authorizes interference claims and retaliation claims. The interference claim arises when the employer prevents or impedes the employee's ability to exercise rights under FMLA. Retaliation claims "involve an employee actually exercising her rights or opposing perceived unlawful conduct under the FMLA and then being subjected to some adverse employment action." The Court of Appeals holds that retaliation claims fall under 29 U.S.C. § 2615(a)(1), which provides: "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." (A related provision, § 2615(a)(2), provides: "It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter").

Under Section 2615(a)(1), employers cannot fire staff in retaliation for taking FMLA leave. If the case goes to trial, the jury must be charged that plaintiff need only show that retaliatory intent was a motivating factor in the decision to terminate. That means there may be other factors that motivated the termination, as well, but so long as there was some retaliatory intent in the equation, the plaintiff wins. Under the more restrictive "but for" test, which applies to claims brought under the Age Discrimination in Employment Act and retaliation claims under Title VII, retaliatory intent must have been the determining factor, that is, that intent (as opposed to some other motivation) made the difference. The Second Circuit has held the "motivating factor"/"but for" distinction generally cannot be resolved on a summary judgment motion. But it can make a difference at trial. The Court sums it up like this:

We now hold that FMLA retaliation claims like Woods’s, i.e. terminations for exercising FMLA rights by, for example, taking legitimate FMLA leave, are actionable under § 2615(a)(1). The plain language of § 2615(a)(1) supports this conclusion. Firing an employee for having exercised her rights under the FMLA is certainly “interfere[nce]” with or “restrain[t]” of those rights. Indeed, FMLA rights have two parts—the right to take leave and the right to reinstatement, so terminating an employee who has taken leave is itself an outright denial of FMLA rights.

The Department of Labor's regulations support this analysis. The Second Circuit defers to the DOL's regulations under Chevron deference, owing to the DOL's expertise in the area. While the Second Circuit hinted in Millea v. Metro-North Railroad, 658 F.3d 154 (2d Cir. 2011), that "but for" causation governs FMLA retaliation claims, the Court of Appeals now says the reasoning in Millea did not squarely address the issue in Woods' case.

Since the record contains evidence both that management took issue with plaintiff's job performance and that she was fired shortly after taking FMLA leave, the bad jury instruction could have made a difference at trial.