Appellate Court Rules on Mixed-Motive Claim in FMLA Retaliation Case

forestThe Family and Medical Leave Act (FMLA) requires covered employers to provide qualifying employees with a minimum amount of unpaid leave for certain reasons. It also prohibits employers from interfering with employees’ use of authorized leave, discriminating based on the use of leave time, or retaliating against an employee for using leave. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey employment disputes involving federal law, recently ruled on a case alleging retaliation under the FMLA. It found that the district court should have given the jury an instruction regarding the “mixed-motive” theory of liability, which shifts the burden of proof to the defendant if a plaintiff demonstrates that their “use of FMLA leave was a negative factor in the employer’s adverse employment decision.” Egan v. Del. River Port Auth., 851 F.3d 263, 267 (3rd Cir. 2017).

Employees who meet a minimum requirement for number of hours worked during the preceding 12-month period are eligible for up to 12 weeks of unpaid leave under the FMLA. 29 U.S.C. §§ 2611(2), 2612(a)(1). This only applies, however, if the employer has at least 50 employees. Id. at § 2611(4). Many workers do not qualify for FMLA leave because their employer is not big enough, or they have not worked for the employer long enough to become eligible. The FMLA provides numerous protections to help ensure that employees who are able to accrue leave are able to use it. This includes a prohibition on retaliating against an employee who uses or attempts to use leave to which they are entitled. Id. at § 2615(a)(1), 29 C.F.R. § 825.220(c).

Courts have identified two general theories for discrimination and retaliation claims:  pretext and mixed-motive. In a pretext claim, a plaintiff asserts that an employer’s stated reason for an adverse action is false and is merely a pretext for an unlawful motive. A mixed-motive theory alleges that an employer had “both legitimate and illegitimate reasons” for the adverse action. Egan, 851 F.3d at 268 n. 1. The plaintiff must show that the “exercise of FMLA rights was ‘a negative factor’ in the employer’s employment decision.” Id.

In a typical mixed-motive claim, if the plaintiff produces evidence that a protected category or action motivated an employer’s action or decision, the burden shifts to the defendant to show that its action or decision would have been the same even without the unlawful factor. See, e.g., 42 U.S.C. §§ 2000e-5(g)(2)(B), 2000e-2(m). If an employer can meet this burden, the plaintiff’s relief is limited to declaratory and injunctive relief. The advantage to plaintiffs of a mixed-motive claim is that, unlike in a pretext claim, they do not have to prove that the adverse action would not have occurred but for the unlawful factor.

The plaintiff in Egan asserted multiple causes of action, including unlawful retaliation under the FMLA. After a jury found for the defendant on all of the claims, the plaintiff argued on appeal that the district court should have given a mixed-motive instruction to the jury, rather than instructing the jury that he had to produce “direct evidence of retaliation.” Egan at 267. The Third Circuit found that a mixed-motive theory is available in FMLA retaliation claims and that the district court erred by not giving a jury instruction.

To speak with an FMLA attorney about a matter in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.

More Blog Posts:

FMLA Retaliation Claim Centers on Employee’s Social Media Posts, The New Jersey Employment Law Firm Blog, July 20, 2017

Third Circuit Court of Appeals Rules in Employee’s Favor in FMLA Discrimination Claim, The New Jersey Employment Law Firm Blog, June 8, 2017

New Jersey Judge Awards Attorney’s Fees and Costs to Plaintiff in Medical Leave Lawsuit, The New Jersey Employment Law Firm Blog, September 4, 2015

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