When a Pennsylvania employee is terminated shortly after commencing leave under the Family and Medical Leave Act (FMLA), an obvious question arises as to whether the employee’s use of FMLA protected leave was the reason, or a factor in the decision to terminate employment. In evaluating FMLA claims the nature of the evidence and degree of proof required is critical. Employers have argued that an employee must prove that the employer’s proffered reason for termination was false or the use of FMLA leave was the sole reason for termination. In Egan v. Delaware River Port Authority (3rd Cir. no. 16-1471) (March 21, 2017), the Third Circuit Court of Appeals considered the question of what level of evidence is required to prove a violation of the FMLA; and concluded that an employee is not required to show direct evidence of discrimination to prove that FMLA leave was a negative factor in the termination, finding that it is sufficient to only offer indirect evidence of discrimination to obtain such an instruction.
In Egan, the employee filed a lawsuit against his former employer asserting several violations of federal employment law, including the FMLA. The employee, who was originally hired to manage fleet assets, had a history of migraine headaches; the frequency of his migraines increased almost instantaneously with his transfer to the Engineering Department. The employee applied for and was granted intermittent FMLA leave. Three months after the FMLA was granted an issue arose as the employee was only reporting the approximate number of hours he had worked, rather than the actual number of hours he had worked and took FMLA leave. While the employee was on FMLA leave, he was advised that all economic development functions were being eliminated, his temporary reassignment to the Engineering Department was deemed completed and his employment was terminated.
The case proceeded to a jury trial and the jury found that the employer did not retaliate against the employee for exercising his right to take FMLA leave. The employee filed an appeal arguing that the trial court erred in the jury instructions by not providing the jury with a mixed-motive jury instruction concerning the FMLA claim. A mixed motive instruction advises the jury that the employee can prevail by proving that the termination was based on both legitimate and illegitimate reasons. Instead, the trial court’s instructions required a much higher level of proof requiring the employee to prove that the stated reason for terminating employment was pretext (i.e. false). The Third Circuit found that the District Court erred in requiring the employee to provide direct evidence of retaliation to obtain a mixed motive instruction.
In Egan, the Third Circuit held that to allow an employer to take an adverse employment action against an employee who takes FMLA leave undoubtedly runs contrary to Congress’s purpose in passing the FMLA, and prohibiting retaliation for exercising FMLA rights is illegal because it is consistent with Congress’s goal of enabling workers to address serious health issues without repercussion. Therefore, the court held that employers are barred 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. Thus, the court held that an employee who claims retaliation may seek to proceed under a mixed-motive approach and show that his or her use of FMLA leave was a negative factor in the employer’s adverse employment action.
In Egan, the Third Circuit also held that the trial court erred in denying a request for a mixed-motive instruction, explaining that it is not necessary to offer direct evidence to obtain a mixed-motive instruction. Thus, the Third Circuit vacated the FMLA judgment and remanded the case for a new trial, so that it could be determined whether there was evidence from which a reasonable jury could conclude that the employer had legitimate and illegitimate reasons for its employment decision and that the employee’s use of FMLA leave was a negative factor in the decision to terminate employment.
Andrew Abramson represents Pennsylvania employees whose FMLA rights are violated. For more information on the FMLA and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126523