Second Circuit Clarifies Standard for FMLA Retaliation Claims

Lev Craig

On July 19, 2017, the U.S. Circuit Court of Appeals for the Second Circuit vacated a jury verdict for the defendant in Woods v. START Treatment & Recovery Centers, Inc. In Woods, the plaintiff claimed that she had been terminated in retaliation for taking leave under the Family and Medical Leave Act (FMLA). The court held that FMLA retaliation claims should be evaluated using the “motivating factor” causation standard and found that the jury had been incorrectly instructed on the applicable law, as the Woods jury had been instructed to apply the “but-for” causation standard, not the motivating factor standard. Accordingly, the Second Circuit vacated the lower court’s verdict and remanded the case for a new trial.

In 2007, Cassandra Woods began working as a substance abuse counselor at START, a New York–based nonprofit providing treatment and counselling to individuals addicted to narcotics. Woods has several debilitating medical conditions, including severe anemia. According to Woods, she repeatedly asked to take FMLA leave due to these medical conditions during her employment at START, but was denied on multiple occasions. In April 2012, Woods was hospitalized for a week, a period which START acknowledged was protected by the FMLA. Shortly after Woods’s return to work, START terminated her employment, purportedly because of performance deficiencies.

Woods brought suit in the U.S. District Court for the Eastern District of New York, alleging that START had fired her in retaliation for requesting and taking FMLA leave. At trial, the district court asked the jury to apply the “but-for” causation standard, giving the following jury instruction: “For you to determine that the plaintiff was terminated for taking FMLA leave, she must prove that the defendant would not have terminated her if she had not taken FMLA leave, but everything else had been the same.” The jury found in START’s favor, deciding that Woods had not shown that her employer had retaliated against her for exercising her rights under the FMLA. Woods then appealed to the Second Circuit, who vacated and remanded the decision.

In this case, under the but-for standard, the jury did not find that START terminated Woods’s employment because she had requested and taken FMLA leave, and that she would not have been terminated if she had not done so. Under the motivating factor standard, however, Woods would be required to demonstrate only that her exercise of her FMLA rights played a part in START’s decision to terminate her.

The Second Circuit analyzed the FMLA’s statutory language and looked to Department of Labor (DOL) guidance in order to determine the standard for FMLA retaliation claims. The court cited a DOL regulation stating that “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” Under Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), courts are to defer to an agency’s interpretation of a statute “where Congress has delegated authority to an administrative agency to make rules carrying the force of law and that agency’s interpretation to which deference is to be given was promulgated in the exercise of that authority,” so long as (1) the statute is ambiguous as to the question at hand, and (2) the agency’s interpretation is reasonable.

The court decided that the DOL regulation met both conditions. With regards to the first, the court found, the FMLA “makes no mention of a motivating factor test, and […] lacks any indicia of Congress’s intent to create ‘but for’ causation,” leaving the question open to agency and judicial interpretation. As for the second, the court found that the DOL’s regulation was “promulgated after notice-and-comment rulemaking, and it comports with the FMLA’s broad salutary purposes” of allowing employees to take reasonable leave for serious health conditions. Accordingly, the Second Circuit deferred to the “negative factor” causation standard articulated in the DOL regulation and held that the district court had erred in its instruction to the jury.

If your employer has retaliated against you for exercising or interfered with your exercise of your rights under the FMLA, contact The Harman Firm, LLP.