by Jennifer D. Santos
In February of 2017, the U.S. Court of Appeals for the Second Circuit heard a mixed-motive Family Medical Leave Act (“FMLA”) retaliation case. In the U.S. District Court for the Eastern District of New York, the plaintiff alleged that her former employer violated the FMLA when it “retaliated against her for taking FMLA-protected medical leave.”[1] The parties disagreed on the standard of causation that must be satisfied.[2] The employer argued the plaintiff was fired for other reasons, and that the plaintiff could not prove but-for causation, which was required to establish retaliation.[3] The district court agreed with the employer, and found that “the plaintiff’s FMLA retaliation claim require[d] a showing that but-for her taking protected FMLA leave, she would not have been terminated.”[4]
In its decision, the district court relied on the Supreme Court’s decision in University of Texas Southwestern Medical Center v. Nassar, which held that Title VII retaliation claims “must be proved according to traditional principles of but-for causation, not the lessened [motivating-factor] causation test” that is used in Title VII discrimination claims.[5] In Nassar, the Court found that Title VII’s definition for unlawful employment practice, Section 2000e-2(m), stated that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”[6] However, the Court held that the motivating factor language does not include retaliation, which is evidence that Congress did not intend the motivating factor test to apply to retaliation claims.[7]
The Second Circuit has not addressed whether the motivating factor test applies to FMLA retaliation claims, but it has observed that “[t]he FMLA’s anti-retaliation provision has the same underlying purpose as Title VII—and almost identical wording.”[8] On this basis, the district court in Woods held the but-for test was the appropriate standard of causation.[9] Other circuits have held that a mixed-motive case is still protected against retaliation under the FMLA, including the Sixth, Seventh, and Eleventh Circuits, but these cases were all decided prior to the Supreme Court’s decision in Nassar.[10]
The U.S. Department of Labor (“DOL”) is supporting Woods’ appeal.[11] In its amicus brief, the DOL asserts the lower court should have deferred to the DOL’s regulation from 2008 that “says companies cannot use medical leave ‘as a negative factor in employment actions.’”[12] However, the Court in Nassar, refused to defer to agency guidance regarding the mixed-motive retaliation issue because the guidance “lack[ed] the persuasive force that is a necessary precondition to deference under Skidmore.”[13] The Second Circuit’s decision will hopefully shed some light on this constantly developing issue and clarify the standard to be used in mixed-motive retaliation claims or at least giving the DOL and EEOC a better basis with which to create thorough guidance on the issue.
[1] Woods v. Start Treatment & Recovery Centers, Inc., No. 13 Civ. 4719 (AMD) (SMG), 2016 WL 590458, at 1* (E.D.N.Y. Feb. 11, 2016).
[2] Id. at *2.
[3] Id.
[4] Id.
[5] Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
[6] 42 U.S.C.A. § 2000e-2(m) 2015 (emphasis added); Nassar, 133 S. Ct. at 2538.
[7] Nassar, 133 S. Ct. at 2528–29.
[8] Millea v. Meiro-N. R.R. Co., 658 F. 3d 154, 164 (2d Cir. 2011).
[9] Woods v. Start Treatment & Recovery Centers, Inc., No. 13 Civ. 4719 (AMD) (SMG), 2016 WL 590458, at 3* (E.D.N.Y. Feb. 11, 2016).
[10] Daniel Wiessner, 2nd Circuit to Consider “Mixed-motive” FMLA Claims, Reuters Legal (Feb. 16, 2017, 6:41 AM), http://www.reuters.com/article/employment-mixedmotive-idUSL1N1G10JO.
[11] Id.
[12] Id.
[13] Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). Under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), the amount of deference afforded to agency interpretations depends on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” The Court in Nassar explained that “[t]he [guidance] manual’s failure to address the specific provisions of this statutory scheme, coupled with the generic nature of its discussion of the causation standards for status-based discrimination and retaliation claims, call the manual’s conclusions into serious question.” 133 S. Ct. at 2533.