In Chase v. United States Post Service, et al., the United States District Court for the District of Massachusetts (Court) suggested that the "but for" causation standard, applied in Title VII retaliation cases pursuant to the U.S. Supreme Court's 2013 decision in University of Tex. Sw. Med. Ctr. V. Nasser may also apply in FMLA retaliation cases. The Court allowed the retaliation claim to proceed, however, based on the evidence of pretext.
Plaintiff Chase worked for the United States Post Office (USPS). He alleged that in 2006, after he returned to work from an on-duty injury, his supervisor stated on the branch's loudspeaker, "Will Bob Mr. Chase, the injury fraud specialist, please report to the office." In July 2010, Chase again was injured on duty. He was granted FMLA leave; in 2011, he was eligible for FMLA leave through March. Chase alleged that when he went to work to file injury-related paperwork, his supervisor stated on the loudspeaker, "There's a job posted on the bulletin board for an injury compensation specialist since you're the biggest fraud when it comes to injuries."
In September 2010, police arrested Chase and his brother, who also worked for USPS, and charged Chase with possession of cocaine with intent to distribute and conspiracy to violate drug laws. The supervisor placed the brother on emergency off-duty status, but did not do the same with Chase. According to Chase, in fall and early winter 2010, his supervisor pressured him to return to work and told Chase that he agreed that the criminal charges were baseless. In January 2011, the supervisor began the process of terminating Chase. The supervisor requested from USPS a removal notice for Chase for "failure to perform duties in a satisfactory manner," allegedly based on the seriousness of the criminal charges, related negative publicity and Chase's refusal to answer questions at a pre-disciplinary interview. Chase's termination was effective September 30, 2011. Chase admitted in his deposition that he would not have been able to return to work until at least November 2012.
Chase sued USPS and his supervisor alleging, among other things, FMLA retaliation based on the theory that the supervisor used Chase's arrest as a pretext to terminate him for taking FMLA-protected leave. The defendants moved for summary judgment on all claims.
The Court denied the motion on Chase's retaliation claim, finding a genuine issue as to whether the supervisor's reason for terminating Plaintiff – his arrest – was a pretext for retaliation. The Court conceded that, in light of the U.S. Supreme Court's Nasser decision, there was a strong argument that Chase must establish "but for" causation in order to prove his retaliation claim; that is, he must prove that he would not have been fired "but for" his supervisor's retaliatory animus. This is a higher standard than in discrimination claims, where an employee can satisfy his burden by proving that discriminatory animus was merely a "motivating" or "substantial" factor in the adverse action.
According to the Court, Chase met his burden even if the higher standard applied. The Court noted the "ample" statements by the supervisor suggesting that he harbored animus against employees taking injury leave. The Court also found persuasive the timing of the decision – five months after Chase's arrest – and evidence that the supervisor did not terminate other employees who were arrested on drug-related charges.
While this case is helpful to employers in that it suggests that the higher "but for" causation standard applies in FMLA retaliation claims, it demonstrates that alleged statements by supervisors can be used to meet even the higher standard. Managers should be trained on how to communicate with employees concerning workplace issues.