Although employment decisions are often based on one specific incident or reason, such as poor work performance, many decisions stem from several causes. If an employee challenges a termination, a demotion, or another adverse action that was taken for two or more reasons, only one of which is illegal, will the employer be liable? The answer may depend on what sort of lawsuit she chooses to file.
In the following case filed under the Family and Medical Leave Act (FMLA), the Sixth U.S. Circuit Court of Appeals found that a school district that placed a custodian on involuntary leave based on two factors — medical restrictions from her own doctor (permissible) and her use of FMLA leave (impermissible) — would have to show at trial that it would have taken the same action regardless of her FMLA leave. In making that ruling, the court has reminded employers that employment decisions that might ordinarily pass legal muster may be successfully challenged if they were even partially influenced by improper consideration of FMLA leave.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including FMLA
Eunice Hunter, a substitute custodian for Valley View Local Schools, suffered injuries and underwent surgeries in 2003, 2004, and 2005. She took long periods of medical leave, most of which were covered by the FMLA. Soon after one leave in 2005, she was informed by Valley View’s superintendent, Sherry Parr, that she was being placed on unpaid medical leave not to exceed one year. The reasons for the involuntary leave, according to Parr, were (1) Hunter’s doctor’s restrictions limiting her ability to perform her job and (2) her excessive absenteeism over the past four years.
In 2006, Hunter filed a lawsuit against Valley View alleging it had violated the FMLA, among other things. She claimed that the school district had retaliated against her by placing her on involuntary leave because of her lawfully taken FMLA leave. Valley View extended her leave for an additional year, but midway through the year, her doctor changed her restrictions and she was able to perform her job. At that point, she returned to work.
Valley View then asked the court to grant judgment in its favor without a trial. Hunter opposed its request because Parr had stated in her deposition testimony that one of the two reasons for placing her on involuntary leave was her use of FMLA leave. The trial court found that the superintendent’s testimony constituted direct evidence that the school district impermissibly considered Hunter’s use of FMLA leave in making an employment decision. However, according to the trial court, Valley View was still entitled to judgment without a trial because it would have placed her on involuntary leave anyway due to her medical restrictions. Hunter appealed the decision to the Sixth Circuit.
Sixth Circuit’s analysis
The Sixth Circuit observed that under the FMLA, an employer may not discriminate or retaliate against an employee for taking leave. In particular, the employer may not use the taking of leave “as a negative factor in employment actions.”
The court then turned to the issue in this case — whether “mixed- motive” cases (in which both a permissible and an impermissible motive led to the adverse employment action) under the FMLA are to be analyzed in the same manner as mixed-motive cases under Title VII of the Civil Rights Act of 1964. That question arose because of the U.S. Supreme Court’s recent ruling in Gross v. FBL Financial Services that the Age Discrimination in Employment Act (ADEA) doesn’t authorize claims in which the adverse employment action was based on both permissible and impermissible factors. According to the Sixth Circuit, the Gross case required it to determine whether the FMLA, like Title VII, authorizes claims based on adverse employment actions motivated by both the employee’s use of FMLA leave and other factors that are permissible.
Reviewing the language of the FMLA and its regulations, the court referred again to the regulations’ language to the effect that employers cannot use the taking of FMLA leave “as a negative factor” in employment actions. The court concluded from that language that the phrase “a negative factor” contemplated that other permissible factors might be involved in adverse decisions. Therefore, according to the court, the FMLA, like Title VII, authorizes claims in which an employer bases a decision on both permissible and impermissible factors.
Having concluded that mixed-motive cases are recognizable under the FMLA, the court undertook a “burden-shifting” analysis similar to the test used in Title VII cases. Hunter was required to provide evidence that Valley View discriminated against her because of her FMLA leave. If she met that burden, Valley View would have to prove that it would have made the same decision if FMLA leave hadn’t been a factor.
Turning to the evidence in this case, the Sixth Circuit found that Parr’s deposition testimony provided direct evidence of retaliation. She testified that one reason for Hunter being placed on involuntary leave was her “excessive absenteeism,” which included FMLA leave. Thus, the burden shifted to Valley View to prove that it would have placed the custodian on involuntary leave regardless of her use of FMLA leave. The court noted that Parr had been asked in deposition whether she placed Hunter on involuntary leave solely because of her medical restrictions and that she couldn’t say “yes.” The court went on to emphasize Parr’s insistence in her deposition that it was Hunter’s FMLA leave that caused her to take action.
Based on the superintendent’s deposition testimony, the Sixth Circuit found that the trial court had incorrectly granted judgment to Valley View without a trial. It wasn’t clear whether Valley View would have made the same decision even if Hunter hadn’t taken FMLA leave. The Sixth Circuit returned the case to the trial court for a decision on that factual issue.
As this case illustrates, illegal discrimination or retaliation need only be a motivating factor, not the motivating factor, for an adverse action to expose an employer to liability under the FMLA (and under Title VII). Even a perfectly legitimate reason for taking adverse action against an employee (such as medical restrictions that prevent her from performing her job) can be undone if you also consider her use of FMLA leave when making the decision. Consequently, you must be extremely careful not to consider absences protected by the FMLA when taking disciplinary action or terminating an employee.