FMLA Burdens of Proof: What You Need to Know

A burden-of-proof issue arises under the FMLA because it provides two distinct types of protection to employees: 'proscriptive' rights, and 'prescriptive' or 'substantive' rights. (See e.g., Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir. 1998). 'Proscriptive' rights include an employee's right not to subjected to discrimination or retaliation for exercising FMLA rights. Claims for violation of the Act's anti-discrimination provisions are brought under 29 U.S.C. ” 2615(a)(2) and invoke the 'discrimination' or 'retaliation' theory. (See Morgan v. Hilti, 108 F.3d 1319, 1325 (10th Cir 1997). On the other hand, an employee's 'prescriptive' or 'substantive' rights include an employee's right to receive up to 12 weeks' unpaid leave for a serious health condition, and the right to reinstatement following the leave. Claims for violation of these rights are brought under 29 U.S.C. ” 2615(a)(1) and are referred to as invoking the 'interference' or 'entitlement' theory. (See eg, McBride v. Citgo Petroleum Corp., 281 F. 3d 1099, 1108 (10th Cir 2002). Courts have treated the issue of the burden of proof for an FMLA claim as depending on the theory under which the suit is brought. Plaintiffs often fail to distinguish the theory under which the alleged violation is brought, however, and this accounts for much of the confusion over the years.

The Discrimination/Retaliation Theory

When a claim is brought alleging a violation of Section 2615(a)(2), most courts use the McDonnell-Douglas burden-shifting test. (See e.g., King v. Preferred Technical Group, 166 F.3d 887 (7th Cir. 1999); Strickland v. Water Works and Sewer Board of the City of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001); Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319 (5th Cir. 1999); Hodgens v. General Dynamics Corp., supra; Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997).

Under the McDonnell-Douglas framework, as adapted to FMLA discrimination/retaliation claims, a plaintiff must initially set forth a prima facie case of prohibited discrimination. To establish a case of discriminatory discharge under the FMLA, for example, the plaintiff must establish that: 1. she engaged in protected activity; 2. the employer took an adverse employment action against the employee; and 3. there is a causal connection between the employee's protected activity and the employer's adverse employment action. (See King, supra, 166 F.3d at 891; Earl v. Mervyns Inc., 207 F.3d 1361, 1367 (11th Cir. 2000).

Once a prima facie case is established, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the defendant meets this burden ' offering any other reason for the decision ' the presumption raised by the plaintiff's prima facie case is rebutted, and the plaintiff must then prove that the reason given by the employer is pretextual. Following the Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), a plaintiff's prima facie case of discrimination, combined with sufficient evidence from which a reasonable fact finder could disbelieve an employer's nondiscriminatory explanation and make the ultimate fact-finding that illegal discrimination occurred, is enough to get the question of an employer's intentional, unlawful discrimination to a jury. Importantly, although the burden of production shifts during this analysis, the burden of persuasion remains with the plaintiff.

A plaintiff may rely upon direct or circumstantial evidence to support her claim here. When circumstantial evidence exists, the FMLA adoption of the McDonnell-Douglas formulation is a hybrid between the disparate treatment analysis and the retaliation analysis under Title VII. As the Supreme Court stressed in McDonnell-Douglas, however, the methodology is meant to be fluid, not rigid. Moreover, the Supreme Court's recent decision in Swerkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), reinforced that there is no heightened pleading requirement and that the plaintiff need meet only the requirements of Federal Rule of Civil Procedure 8(a)(2), which requires a 'short and plain statement of the claim showing that the pleader is entitled to relief.'

The Interference/Entitlement Theory

Courts' treatment of burden-of-proof issues in FMLA claims brought to vindicate an employee's 'prescriptive' or 'substantive' rights (ie, claims brought under 29 U.S.C. ” 2615(a)(1) under an 'interference' or 'entitlement' theory) has been much less consistent than their treatment of FMLA discrimination/retaliation claims. In passing the FMLA, Congress made it unlawful for an employer to 'interfere with, restrain, or deny the exercise of or the attempt to exercise , any right provided' by the Act. 29 U.S.C. ” 2615(a)(1). Federal regulations address this requirement in Section 825.220, and provide, for example, that 'employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under 'no fault' attendance policies.' (See e.g. Victorelli v. Shadyside Hosp., 128 F.3d 184, 190-91 (3d Cir. 1997).

The 10th Circuit addressed the allocation of the burden of proof under the interference/entitlement theory in Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955 (10th Cir. 2002), noting that the FMLA interference/entitlement theory does not require a demonstration that the employer intended to violate the Act. As such, this theory, and its method of proof, is substantially different from the discrimination theory, which requires a showing of intent. If an employer interferes with the FMLA-created right to leave or to reinstatement following leave, a deprivation of this right is a violation regardless of the employer's intent. (See King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999). In such a case, 'the employee must demonstrate by a preponderance of the evidence only entitlement to the disputed leave ' [T]he intent of the employer is immaterial.' Thus, the 10th Circuit held in Smith that the burden of proof rests on the employer in interference cases. This determination is based upon the language of Section 825.216(a) of the Regulations, which provides: 'An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.'

The Circuits are split on this issue. The 11th Circuit, like the 10th Circuit in Smith, has required that once an employee proves she was denied reinstatement after FMLA leave, the employer must prove she would have been laid off anyway for some other reason. (See O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349 (11th Cir. 2000); Parris v. Miami Herald Publ'g Co., 216 F.3d 1298 (11th Cir. 2000). One point of note is that the language of the Act prohibiting 'interference' and 'restraint' is similar to that under Section 8(a)(1) of the National Labor Relations Act. 29 U.S.C. ”158(a)(1). Thus, in Bachelder v. America West Airlines, 259 F.3d 1112 (9th Cir. 2001), the Ninth Circuit stressed the close relationship of the language to Section 8(a)(1) of the NLRA and rejected the need for use of the McDonnell-Douglas burden-shifting analysis. The 9th Circuit in Bachelder took an approach that mirrors the NLRA's determination of unfair labor practices under Section 8(a)(1) of the NLRA, suggesting an employee will prevail if her rights were 'chilled.' However, the 7th Circuit has not shifted the burden of proof to the employer. Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).

Conclusion

Until there is direction from the Supreme Court, both plaintiff and defense lawyers need to clearly understand the theory under which an FMLA claim is brought, and to carefully consider the Circuit precedent involved before proceeding with the case.

Darrell R. VanDeusen is a shareholder at Kollman & Saucier P.A., a management labor, employment and benefits firm in Baltimore. This article is derived from a section of the Litigation chapter of his upcoming treatise on the FMLA, scheduled for publication by Lexis/Matthew Bender.

An important and developing issue under the Family and Medical Leave Act (FMLA or Act) is the appropriate burden of proof to be applied in assessing a plaintiff's claim. Soon after the FLMA became law in 1993, courts automatically applied the McDonnell-Douglas burden-shifting analysis in all FMLA cases, as they do when considering many other employment-related claims. After nearly 10 years, however, courts are now focusing more directly on burden shifting issues'and revising, if not clarifying, the law.

For instance, the federal District Court for New Jersey recently applied two different burdens of proof to a plaintiff's two FMLA claims'one alleging denial of reinstatement, and the other alleging retaliation. Parker v. Hahnemann Univ. Hosp., F. Supp. 2d, 2002 WL 31830647 (D.N.J. 2002) (Denying cross motions for summary judgment). On the deprivation-of-rights claim, the court held that once the plaintiff could establish she was denied a right afforded by the FMLA, the burden of proof shifted to the employer to demonstrate that she would have been denied the right even if she had not taken FMLA leave. On her retaliation claim, however, the court followed the McDonnell-Douglas formula and did not shift the burden of proof to the employer. Both plaintiff's attorneys and defense counsel must recognize such distinctions to prosecute or defend FMLA claims successfully.

Claims Under the FMLA

A burden-of-proof issue arises under the FMLA because it provides two distinct types of protection to employees: 'proscriptive' rights, and 'prescriptive' or 'substantive' rights. ( See e.g., Hodgens v. General Dynamics Corp. , 144 F.3d 151, 159-60 (1st Cir. 1998). 'Proscriptive' rights include an employee's right not to subjected to discrimination or retaliation for exercising FMLA rights. Claims for violation of the Act's anti-discrimination provisions are brought under 29 U.S.C. ” 2615(a)(2) and invoke the 'discrimination' or 'retaliation' theory. ( See Morgan v. Hilti , 108 F.3d 1319, 1325 (10th Cir 1997). On the other hand, an employee's 'prescriptive' or 'substantive' rights include an employee's right to receive up to 12 weeks' unpaid leave for a serious health condition, and the right to reinstatement following the leave. Claims for violation of these rights are brought under 29 U.S.C. ” 2615(a)(1) and are referred to as invoking the 'interference' or 'entitlement' theory. (See eg, McBride v. Citgo Petroleum Corp., 281 F. 3d 1099, 1108 (10th Cir 2002). Courts have treated the issue of the burden of proof for an FMLA claim as depending on the theory under which the suit is brought. Plaintiffs often fail to distinguish the theory under which the alleged violation is brought, however, and this accounts for much of the confusion over the years.

The Discrimination/Retaliation Theory

When a claim is brought alleging a violation of Section 2615(a)(2), most courts use the McDonnell-Douglas burden-shifting test. ( See e.g., King v. Preferred Technical Group , 166 F.3d 887 (7th Cir. 1999); Strickland v. Water Works and Sewer Board of the City of Birmingham , 239 F.3d 1199, 1207 (11th Cir. 2001); Chaffin v. John H. Carter Co., Inc. , 179 F.3d 316, 319 (5th Cir. 1999); Hodgens v. General Dynamics Corp., supra; Morgan v. Hilti, Inc. , 108 F.3d 1319, 1324 (10th Cir. 1997).

Under the McDonnell-Douglas framework, as adapted to FMLA discrimination/retaliation claims, a plaintiff must initially set forth a prima facie case of prohibited discrimination. To establish a case of discriminatory discharge under the FMLA, for example, the plaintiff must establish that: 1. she engaged in protected activity; 2. the employer took an adverse employment action against the employee; and 3. there is a causal connection between the employee's protected activity and the employer's adverse employment action. (See King, supra, 166 F.3d at 891; Earl v. Mervyns Inc. , 207 F.3d 1361, 1367 (11th Cir. 2000).

Once a prima facie case is established, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the defendant meets this burden ' offering any other reason for the decision ' the presumption raised by the plaintiff's prima facie case is rebutted, and the plaintiff must then prove that the reason given by the employer is pretextual. Following the Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133 (2000), a plaintiff's prima facie case of discrimination, combined with sufficient evidence from which a reasonable fact finder could disbelieve an employer's nondiscriminatory explanation and make the ultimate fact-finding that illegal discrimination occurred, is enough to get the question of an employer's intentional, unlawful discrimination to a jury. Importantly, although the burden of production shifts during this analysis, the burden of persuasion remains with the plaintiff.

A plaintiff may rely upon direct or circumstantial evidence to support her claim here. When circumstantial evidence exists, the FMLA adoption of the McDonnell-Douglas formulation is a hybrid between the disparate treatment analysis and the retaliation analysis under Title VII. As the Supreme Court stressed in McDonnell-Douglas, however, the methodology is meant to be fluid, not rigid. Moreover, the Supreme Court's recent decision in Swerkiewicz v. Sorema, N.A. , 534 U.S. 506 (2002), reinforced that there is no heightened pleading requirement and that the plaintiff need meet only the requirements of Federal Rule of Civil Procedure 8(a)(2), which requires a 'short and plain statement of the claim showing that the pleader is entitled to relief.'

The Interference/Entitlement Theory

Courts' treatment of burden-of-proof issues in FMLA claims brought to vindicate an employee's 'prescriptive' or 'substantive' rights (ie, claims brought under 29 U.S.C. ” 2615(a)(1) under an 'interference' or 'entitlement' theory) has been much less consistent than their treatment of FMLA discrimination/retaliation claims. In passing the FMLA, Congress made it unlawful for an employer to 'interfere with, restrain, or deny the exercise of or the attempt to exercise , any right provided' by the Act. 29 U.S.C. ” 2615(a)(1). Federal regulations address this requirement in Section 825.220, and provide, for example, that 'employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under 'no fault' attendance policies.' (See e.g. Victorelli v. Shadyside Hosp. , 128 F.3d 184, 190-91 (3d Cir. 1997).

The 10th Circuit addressed the allocation of the burden of proof under the interference/entitlement theory in Smith v. Diffee Ford-Lincoln-Mercury, Inc. , 298 F.3d 955 (10th Cir. 2002), noting that the FMLA interference/entitlement theory does not require a demonstration that the employer intended to violate the Act. As such, this theory, and its method of proof, is substantially different from the discrimination theory, which requires a showing of intent. If an employer interferes with the FMLA-created right to leave or to reinstatement following leave, a deprivation of this right is a violation regardless of the employer's intent. ( See King v. Preferred Technical Group , 166 F.3d 887, 891 (7th Cir. 1999). In such a case, 'the employee must demonstrate by a preponderance of the evidence only entitlement to the disputed leave ' [T]he intent of the employer is immaterial.' Thus, the 10th Circuit held in Smith that the burden of proof rests on the employer in interference cases. This determination is based upon the language of Section 825.216(a) of the Regulations, which provides: 'An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.'

The Circuits are split on this issue. The 11th Circuit, like the 10th Circuit in Smith, has required that once an employee proves she was denied reinstatement after FMLA leave, the employer must prove she would have been laid off anyway for some other reason. ( See O'Connor v. PCA Family Health Plan, Inc. , 200 F.3d 1349 (11th Cir. 2000); Parris v. Miami Herald Publ'g Co. , 216 F.3d 1298 (11th Cir. 2000). One point of note is that the language of the Act prohibiting 'interference' and 'restraint' is similar to that under Section 8(a)(1) of the National Labor Relations Act. 29 U.S.C. ”158(a)(1). Thus, in Bachelder v. America West Airlines , 259 F.3d 1112 (9th Cir. 2001), the Ninth Circuit stressed the close relationship of the language to Section 8(a)(1) of the NLRA and rejected the need for use of the McDonnell-Douglas burden-shifting analysis. The 9th Circuit in Bachelder took an approach that mirrors the NLRA's determination of unfair labor practices under Section 8(a)(1) of the NLRA, suggesting an employee will prevail if her rights were 'chilled.' However, the 7th Circuit has not shifted the burden of proof to the employer. Rice v. Sunrise Express , 209 F.3d 1008 (7th Cir. 2000).

Conclusion

Until there is direction from the Supreme Court, both plaintiff and defense lawyers need to clearly understand the theory under which an FMLA claim is brought, and to carefully consider the Circuit precedent involved before proceeding with the case.

Darrell R. VanDeusen is a shareholder at Kollman & Saucier P.A., a management labor, employment and benefits firm in Baltimore. This article is derived from a section of the Litigation chapter of his upcoming treatise on the FMLA, scheduled for publication by Lexis/Matthew Bender.