First Circuit Declines to Address Appropriate Causation Standard in FMLA Retaliation Cases

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Chase v. U.S. Postal Service, 843 F.3d 553 (1st Cir. Dec. 14, 2016)

The First Circuit Court of Appeals recently declined to resolve an outstanding issue over the appropriate causation standard to apply in Family and Medical Leave Act (FMLA) retaliation cases, thereby leaving the question for another day.

The FMLA prohibits an employer from retaliating against an employee for taking protected leave.  To recover for retaliation, an employee must prove that:

  1. he availed himself of a protected FMLA right (i.e., he engaged in protected conduct);
  2. he was “adversely affected by an employment decision”; and
  3. “there was a causal connection between [his] protected conduct and the adverse employment action.”  Chacon v. Brigham & Women’s Hosp., 99 F. Supp. 3d 207, 214 (D. Mass. 2015), quoting Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 113-14 (1st Cir. 2006).

Describing motive as “the critical issue” in any FMLA retaliation action, the District Court (after a bench trial) entered a judgment of dismissal below in favor of plaintiff’s employer and direct supervisor for firing Robert Chase, a letter carrier, while he was out of work on protected leave.

On appeal, the First Circuit affirmed.  The case turned on the third element of proof – whether there was a causal connection between Chase’s protected activity and his termination.  Department of Labor (DOL) regulations call for the application of a “negative factor” causation standard; according to the DOL, an employer is prohibited from using an employee’s decision to take FMLA leave as a “negative factor” in any employment action.  29 C.F.R. § 825.220(c).  See Henry v. United Bank, 686 F.3d 50, 55 (1st Cir. 2012).  But following the decision in University of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013), wherein the Supreme Court held that Title VII retaliation claims “must be proved according to traditional principles of but-for causation . . .,” the question has arisen as to whether FMLA retaliation plaintiffs must satisfy the same standard.  Under the more stringent “but for” test, a plaintiff is required to show that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”  Nassar, at 2533.

Citing plaintiff’s lack of evidence that his supervisor either knew or should have known that Chase was on protected FMLA leave at the time of his termination, the First Circuit ducked the appropriate standard issue and affirmed the decision below.

Given that Chase is unable to prevail even under the more lenient “negative factor” test, we save for another day the question of Nassar’s impact on FMLA jurisprudence with respect to the required causation standard . . ..

Without acknowledging the issue, the First Circuit appears to have silently sided with the Second, Third, Fifth and Eighth Circuits[1] by impliedly agreeing that individuals (e.g., direct supervisors) can be held directly liable under the FMLA.  Although two judges of the District of Massachusetts have so held – see Mason v. Mass. Dep’t of Env’l Protection, 774 F. Supp. 2d 349, 371 (D. Mass. 2011); Chase v. U.S. Postal Service, 2013 WL 5948373, *14 (D. Mass. 2013) – not all courts are in agreement.  Contra, Mitchell v. Chapman, 343 F.3d 811, 829 (6th Cir. 2003); Wascura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999).

 

 


[1] Graziadio v. Culinary Inst. of America, 817 F.3d 415, 422 (2nd Cir. 2016); Haybarger v. Lawrence Cty. Adult Prob. & Parole, 667 F.3d 408, 417 (3rd Cir. 2012); Modica v. Taylor, 465 F.3d 174, 188 (5th Cir. 2006); Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002).