In Woods v. START Treatment & Recovery Ctrs., Inc., 2017 U.S. App. LEXIS 13038 (2d Cir. July 19, 2017), the U.S. Court of Appeals for the Second Circuit (covering New York, Connecticut and Vermont) recently held that the “motivating factor” standard applies to Family and Medical Leave Act (“FMLA”) retaliation claims under 29 U.S.C. § 2615(a)(1). The court vacated and remanded a jury verdict where the district court incorrectly instructed the jury to apply the “but for” causation standard to a plaintiff’s FMLA retaliation claims.
By way of background, Plaintiff worked as a substance abuse counselor for Defendant from 2007 until her termination in 2012. In March 2011, Defendant determined that Plaintiff was failing to achieve “required outcomes” in “compliance” and “documentation.” Beginning in April 2011, Plaintiff received several warning memos and was placed on probation due to poor performance. By March 2012, Plaintiff was put on a ninety-day probation for “her on-going failure to perform [her] job duties as directed and/or within designated time frames despite verbal and/or written warnings.” During this period, Plaintiff was also suffering from severe anemia and other conditions for which she requested FMLA leave. In April 2012, she was hospitalized for seven days and returned on April 28, 2012. On May 17, 2012, shortly after returning from FMLA leave, Defendant terminated Plaintiff’s employment due to her failure to maintain up-to-date patient notes and “on-going failure to perform [her] job duties.” Plaintiff, however, claimed that she was actually terminated due to her request for, and use of, FMLA leave and brought a lawsuit for, inter alia, interference, and retaliation under the FMLA.
At trial, the district court instructed the jury that Plaintiff had to show that her FMLA leave was the “but-for” cause of her termination of employment, rather than a mere “motivating factor” in the decision. The jury returned a verdict for Defendant, and Plaintiff appealed.
On appeal, the Second Circuit reversed and remanded, finding that the district court erred by improperly instructing the jury on the “but-for” causation standard rather than the “motivating factor” standard. The court also determined that FMLA retaliation claims are actionable under 29 U.S.C. § 2615(a)(1), not 29 U.S.C. § 2615(a)(2). Pursuant to § 2615(a)(1), it is unlawful “for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” Pursuant to § 2615(a)(2), it is unlawful “for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.”
Relying on § 2615(a)(1) as the basis for Plaintiff’s claims, the Second Circuit adopted the Department of Labor’s regulations requiring the “motivating” or “negative” factor causation standard for FMLA retaliation claims. The Department of Labor revised its rule at 29 C.F.R. 825.220(c) “to clarify that the prohibition against interference includes a prohibition against retaliation as well as a prohibition against discrimination.” The Department further explained that “[a]lthough section 2615(a)(2) of the Act also may be read to bar retaliation, . . . the Department believes that section 2615(a)(1) provides a clearer statutory basis for § 825.220(c)’s prohibition of discrimination and retaliation” for exercising FMLA rights.
Thus, the correct causation standard in FMLA retaliation cases is whether the employee’s exercise of rights under the FMLA was a “motivating factor” in the employer’s decision to fire the employee, and not whether the employer would have fired the employee “but for” the employee’s exercise of rights under the FMLA.
If you believe that your employer has retaliated against you for exercising your rights under FMLA, we recommend consulting with a New York City employment attorney as soon as possible to determine whether you have any actionable legal claims.