Why it matters
Direct evidence of retaliation is not required for a plaintiff to claim retaliation in violation of the Family and Medical Leave Act (FMLA), the U.S. Court of Appeals for the Third Circuit has clarified. Joseph Egan’s complaint against the Delaware River Port Authority alleged that he was fired in part because he took FMLA leave for his migraines. At trial, the district court required Egan to present direct evidence of retaliation and a jury found in favor of the employer. On appeal, the Third Circuit held that the jury should have been given instructions on a mixed-motive case. The panel relied in part upon on the Department of Labor’s (DOL) FMLA regulations, finding they embodied a permissible construction of the statute. “The DOL’s interpretation is consistent with the purposes of the FMLA, which include ‘entitling employees to take reasonable leave for medical reasons’ without interference,” the panel wrote. A concurring opinion took the opportunity to advocate for reconsideration of the deference accorded to federal agencies.
Hired as a Projects Manager for Special Projects, Joseph Egan worked at the Delaware River Port Authority from 2008–2012. He had suffered from migraines since a 1995 accident and when they increased in frequency, he applied for intermittent Family and Medical Leave Act (FMLA) leave in early 2012. The Port Authority granted the leave but issues arose by the summer about the number of hours Egan was reporting.
While on a period of FMLA leave, Egan was informed that his position was being eliminated. He filed suit alleging violations of the Age Discrimination in Employment Act, Americans with Disabilities Act, and the FMLA. The case proceeded to trial and Egan sought a mixed-motive jury instruction for his FMLA retaliation claim.
The district court denied the motion, holding the instruction was not warranted because Egan had not presented direct evidence of retaliation. The jury returned a verdict for the Port Authority on all counts. Egan appealed, arguing that he should have been allowed a mixed-motive jury instruction for his FMLA claim.
Reversing, the U.S. Court of Appeals for the Third Circuit agreed. Liability for FMLA retaliation claims is premised upon regulations from the Department of Labor (DOL), the panel explained, an interpretation that embodies a permissible construction of the FMLA requiring deference pursuant to the standard found in the 1984 U.S. Supreme Court opinion Chevron v. Natural Resources Defense Council.
The FMLA itself provides that it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided in this subchapter,” including the right to seek and to use FMLA leave. The statute also makes it “unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.”
However, the statute does not specifically provide for a retaliation claim, the Third Circuit noted. In promulgating regulations for the FMLA, the DOL said the statute prohibits retaliation, and given the purposes of the FMLA, the panel agreed that this was a “reasonable interpretation” of the law.
“To allow an employer to take an adverse employment action against an employee who takes FMLA leave would ‘undoubtedly run contrary to Congress’s purpose in passing the FMLA,’” the court wrote. “Thus, the regulation prohibiting retaliation for exercising FMLA rights is consistent with Congress’s goal of enabling workers to address serious health issues without repercussion.”
Both the Sixth and Ninth Circuits have reached a similar conclusion.
Under the regulation, employers are prohibited from considering an employee’s FMLA leave as a negative factor in employment decisions and an employee does not need to prove that invoking FMLA rights was the sole or most important factor upon which the employer acted, the court said. This standard—that leave was a “negative factor” in the adverse job action as opposed to the but-for cause of the action—is also reasonable, the panel found.
Congress has endorsed the use of a lessened causation standard in Title VII’s anti-discrimination provisions, the court noted, reflecting “a view that consideration of any of the protected characteristics set forth in the statute, namely race, color, religions, sex, or national origin, is never permissible, even if it is not the sole reason for the employment decision. Similarly, in enacting the FMLA, Congress chose to ensure that those who need to address health issues may do so without interference. The regulation precludes an employer from considering the use of such leave as a negative factor in an employment decision.”
The DOL’s choice to use the negative factor standard is consistent with the goals of the FMLA and the regulation’s mixed-motive approach is a permissible construction of the statute, the Third Circuit found. As for an evidentiary threshold to obtain a mixed-motive instruction for a FMLA retaliation claim at trial, the panel said the Supreme Court has made clear that direct evidence is not required to proceed under a mixed-motive theory of liability.
While the justices’ holding was found in the Title VII context, federal appellate courts have applied the position in other contexts including the Federal Rail Safety Act as well as the FMLA, including the First, Seventh, Ninth and Tenth Circuits. Joining these courts, the Third Circuit ruled that Egan was not required to produce direct evidence to receive a mixed-motive instruction.
“Rather, in response to the request for the instruction, the court should have determined whether there was evidence from which a reasonable jury could conclude that the Port Authority had legitimate and illegitimate reasons for its employment decision and that Egan’s use of FMLA leave was a negative factor in the employment decision,” the panel wrote.
The court vacated the FMLA judgment in favor of the employer and remanded the case.
One member of the panel wrote separately in a concurrence that advocated for reconsideration of the deference accorded federal agencies by the Chevron doctrine. The standard runs “contrary to the roles assigned to the separate branches of government,” “embed[s] perverse incentives in the operations of government,” “spreads the spores of the ever-expanding administrative state,” and “requires us at times to lay aside fairness and our own best judgment and instead bow to the nation’s most powerful litigant, the government, for no reason other than it is the government,” according to the concurrence.
To read the opinion in Egan v. Delaware River Port Authority, click here.