Millea v. Metro-North Railroad Company

On August 8, 2011, the United States Court of Appeals for the Second Circuit affirmed that employers may be liable for interference with rights protected by the Family and Medical Leave Act (FMLA) when they adopt and enforce notice requirements for unforeseeable leave that are more stringent than what the FMLA allows. The court further held that the definition of “materially adverse employment action” applicable to retaliation claims under Title VII of the Civil Rights Act of 1964, as amended, also applies to claims for retaliation under the FMLA. In addition to importing a Title VII analysis to the FMLA, the court’s approach appears to greatly expand the scope of the Department of Labor’s 2009 regulations.

Employee with PTSD Violates Company Procedure When Taking Unforeseeable FMLA Leave

In Millea v. Metro-North Railroad Company,[1] the Court of Appeals for the Second Circuit considered cross appeals in a matter where the plaintiff had alleged that his employer interfered with his rights under the FMLA and then retaliated against him for seeking to exercise those rights.

Christopher Millea was a veteran of the First Gulf War and suffered from severe post-traumatic stress disorder (PTSD). The PTSD triggered unpredictable panic attacks and, at times, Millea needed unforeseeable FMLA leave.

Metro-North had a strict policy requiring that notice of unforeseeable FMLA leaves be given directly to an employee’s supervisor. Following a heated disagreement with his supervisor, Millea suffered a panic attack and left work to see his doctor. Due to the circumstances giving rise to the attack, Millea notified a lead clerk of his FMLA leave and asked the clerk to inform the supervisor, which he did. The next day, Millea needed further FMLA leave and, once again, asked the lead clerk to report the FMLA leave to the supervisor. Once again, the lead clerk complied.

Metro-North did not deem Millea’s absences to be FMLA leave because Millea had not notified his supervisor directly. In addition, the company launched an investigation of Millea’s unexcused absences and issued a formal Notice of Discipline against him. Thereafter, Millea sought and obtained a voluntary transfer to a slightly lower-paying position in order to change supervisors.

At trial, Millea prevailed on his claim that Metro-North had interfered with his right to protected leave, but the jury found for Metro-North on Millea’s retaliation claim. On cross appeals, Metro-North sought to overturn the interference verdict, and Millea argued that one of the district court’s jury instructions on his retaliation claim was erroneous, causing prejudicial error.[2]

Court of Appeals Says Employer May Not Rely on Notice Requirement That Is More Stringent Than the FMLA

Metro-North argued that it was justified in disciplining Millea because he had not complied with its notice policy for unforeseen leave. Metro-North also contended that the district court gave an improper jury instruction when it told the jury that an employer’s rules and procedures for notification may not be “more stringent than the requirements under the [FMLA].” Metro-North claimed that this instruction was overbroad; employers are free to implement internal notice rules that are more stringent than the FMLA so long as the timing requirement is not stricter than what the FMLA permits. The court disagreed with Metro-North on both counts.

As an initial matter, the jury could reasonably have found that Millea’s notice complied with the FMLA “and all legally valid aspects” of Metro-North’s policy. The jury found that Millea’s panic attack constituted an “unusual circumstance” in which Department of Labor (DOL) regulations allow for relaxed enforcement of an employer’s “usual and customary notice and procedural requirements.”[3] Moreover, the regulations specifically provide for indirect notice through a family member or other representative when an employee is “unable” to provide notice him or herself.[4] The jury was free to conclude that, as a matter of fact, Millea was “unable” to provide notice directly to his supervisor.

Finally, the trial court’s instruction was correct. Because the DOL regulations permit indirect notice, Metro-North could not claim that its decision to deny leave was a lawful consequence of Millea’s failure to adhere to its unlawful notice requirement.

District Court Provided Improper Instruction Requiring “Material Adverse Change” in Terms and Conditions of Employment on Retaliation Claim

Millea appealed the dismissal of his retaliation claim, arguing that the district court’s instruction as to what constituted an “adverse employment action” was impermissibly narrow. The instruction given by the district court defined “an adverse employment action” as a “material adverse change” in the employee’s terms and conditions of employment, such as “termination, demotion, loss of benefits, or significantly diminished responsibilities.” Millea had argued for an instruction applying the standard adopted by the Supreme Court for Title VII cases in Burlington Northern & Santa Fe Railroad Co. v. White.[5] Under this standard, Millea would have to show only that “a reasonable employee would have found the challenged action materially adverse,” meaning that it “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”[6]

Citing the comparable purposes and language of Title VII and the FMLA, the court agreed with Millea.[7] And because he was prejudiced by the erroneous instruction, Millea was entitled to a new trial on this claim.

Conclusion

Employers who viewed the DOL’s 2009 FMLA regulations as providing greater breathing room may have to rethink their rules and procedures for notice of unforeseeable FMLA leave. Indeed, the regulation on which the court relied in Millea speaks to the identity of the person giving the indirect notice rather than the identity of the person receiving the notice on the employer’s behalf. In light of the 2d Circuit’s opinion, we query whether employers may rely upon the express language of the regulations or whether they will need to glean broader policy imperatives in deciding what rules and procedures will pass legal muster.

This case also demonstrates the importance of looking to guidance from statutes with a sumilar purpose, such as the ADA, when applying the FMLA. The court acknowledges what it deems to be a growing consensus as to the commonality among statutes administered by the EEOC, such as the ADA, and the FMLA, which is administered by the DOL.