Alexander Foxx, Associate Member, University of Cincinnati Law Review
Introduction
The Family Medical Leave Act (“FMLA” or “the Act”) entitles employees to twelve weeks of unpaid leave to address their personal medical issues or medical issues of immediate family members.[1] The FMLA prohibits employers from interfering with an employee’s right to take this leave or from retaliating against the employee for taking this leave.[2] What constitutes “retaliation” has been the subject of disagreement among several circuit courts. Specifically, the timeframe for when retaliation may occur is at issue. The Eleventh Circuit used an employee-friendly view of retaliation because it provided a longer timeframe for when retaliation may occur.[3] The Eighth Circuit’s view is more employer-friendly because it narrowed the timeframe for retaliation claims.[4] The Eleventh Circuit’s view better fulfills the intent of the Family Medical Leave Act and fits well within the boundary of legal interpretation.
The Family Medical Leave Act and Judicial Background
The FMLA was passed in 1993 as a response to changing family norms and a recognition that employers were not adequately addressing these norms.[5] Specifically, the FMLA states that its purpose is to “balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity” and “entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.”[6] The FMLA entitled employees to 12 weeks of unpaid medical leave and mandated job security.[7]
The FMLA prohibited retaliation against an employee who exercised his or her rights under the Act—namely, an employer could not fire an employee for taking FMLA approved medical leave.[8] However, proving retaliation is difficult due to a dearth of non-circumstantial evidence.[9] Non-circumstantial evidence is evidence which can be directly supported by fact and does not require inference on the part of a judge or a jury.
To accommodate plaintiffs’ difficulty in establishing a case against an employer based on circumstantial evidence, courts adopted the prima facie Title VII framework from the Supreme Court ruling in McDonnell Douglas Corp. v. Green.[10],[11] The employee must establish “(1) [the employee] engaged in statutorily protected activity, (2) [the employee] suffered an adverse employment decision, and (3) the decision was causally related to the protected activity.” [12] If these elements were met, the burden would shift to employer to show the employee was fired for a legitimate business purpose.[13] Finally, if the employer met its burden, the employee must demonstrate the legitimate purpose was pretext for an illicit action.[14]
The circuit splits centers around the third element of the McDonnell Douglas framework. Both the Eleventh and Eighth circuits agree if an employee is fired soon after the event which serves as a benchmark for retaliation (the “Event”), this is an indication of a causal connection (the courts refer to this nearness to the Event as “temporal proximity”[15]).[16]
The Issue
The primary issue is determining the date for the temporal proximity element. Some cases have found that the day the FMLA leave begins is the proper date, while others have found that the day the FMLA leave ends is the proper date.[17] If the end-date is used, the employee’s firing will likely occur much closer to the Event and temporal proximity will be easier to show, strengthening the employee’s case. If the begin-date is used, the employee will likely be terminated far removed from the Event and will have trouble proving causation and establishing a case. The Eleventh Circuit favors the end-date[18]; the Eighth Circuit favors the begin-date.[19]
In Jones v. Gulf Coat Health Care, the Eleventh Circuit stated “temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured from the last day of an employee’s FMLA leave until the adverse employment action at issue occurs.”[20] The court reasoned that to hold otherwise would violate the policy of the FMLA and unduly disadvantage employees who must take the full 12 week amount.[21] The court noted if an employee were to take the full amount of FMLA leave, he or she would be well removed from the begin-date at the time of termination and temporal proximity would not be present, even if there was a clear causal relationship.[22] The Eleventh Circuit also noted that the Fifth and Sixth Circuits had issued similar decisions.[23] The Eleventh Circuit concluded that temporal proximity should be determined from the end-date.
The Eighth Circuit reached a contrary conclusion in Sisk v. Picture People. The court stated “this court looks to the date an employer knew of an employee’s use (or planned use) of FMLA leave, not the date it ended.”[24] The Court appeared reluctant to allow retaliation to be identified more than two months after the employee begins their leave.[25] Such an extended lapse of time between when retaliation may occur and when an employee exits the work place (nearly three months, if the full leave is used) diminishes the causal connection between the potential retaliation and the Event.[26] The court stated, “more than two months is too long to support a finding of causation without something more,” indicating an unwillingness to allow a broad view of temporal proximity that may further expose employers to liability.[27] Therefore, the Eighth Circuit ruled temporal proximity will be determined by the begin-date of the FMLA leave.[28]
The Eleventh Circuit Approach is Correct
The Eleventh Circuit correctly defined the end-date as the date by which to determine temporal proximity. To rule otherwise would go against the purpose of the FMLA and provide a loophole through which employers could retaliate against employees without consequence.
The FMLA was established to “entitle employees to take reasonable leave for medical reasons.”[29] Congress wanted to ensure that employees could not be fired for missing work for twelve weeks due to a medical necessity. Congress wished to ensure that an absence due to a medical emergency was not deemed improper until after twelve weeks. To begin the measure of temporal proximity from the beginning of the leave would allow employers to impose absence consequences before the twelve week entitled leave ends. This directly violates the spirit of the Act, if not its verbiage. It is not a legally proper interpretation to allow the employee to be penalized at the initiation of his or her leave—the Act was designed to prevent this very thing. For this reason, the Eleventh Circuit’s argument is legally proper.
Opponents may argue that because the FMLA does not specifically provide a timeline for retaliation, courts should be confined to the plain language of the FMLA. This ignores that all the FMLA provides is “retaliation.”[30] To retaliate is defined as “to get revenge.”[31] The definition section of the FMLA does not define “retaliate”—this dictionary definition is what courts may look to in determining retaliation. The courts therefore appear to be granted broad discretion in determining when an employer has acted in a retaliatory manner. This discretion has manifested itself in using the McDonnell Douglas framework. This demonstrates that the determination of what is “retaliatory” is defined by common-law—not the statute. Therefore, the Eleventh Circuit is well within its propriety in interpreting temporal proximity broadly.
Further, if the begin-date is used as the measure for temporal proximity, employers will have unreasonably strong cases against employees who take the full leave amount. The begin-date measurement would allow employers to be nearly three months removed from the Event their retaliation would be measured against. Essentially, the begin-date approach would allow many employers to claim that no retaliation occurred because too much time had elapsed. This ignores the fact that the employer could have planned for termination from the first day of FMLA leave, but simply delayed the action until the employee returned from leave. Waiting and then terminating an employee for exercising a right fits the definition of “retaliation” perfectly. For this reason, the Eighth Circuit’s use of the begin-date approach is improper and the Eleventh Circuit’s end-date approach is correct.
Consider the following example. Employee A suffers a stroke and informs Employer B that he will need to take FMLA leave for 12 weeks to recover. B grants the leave, but concludes that 12 weeks is too long an absence for any worker to take from work and remain employed—he decides as soon as he grants A’s FMLA leave that he will terminate A on A’s return to work. 12 weeks later, A returns to work fully recovered and ready to resume his job duties. He is promptly fired by B.
Under the begin-date approach, Employer B’s case would be strengthened because he waited until the FMLA leave had expired before he fired Employee A. In a sense, Employee A was punished for suffering a stroke—the exact policy the FMLA was initiated to prevent.
Finally, the end-date approach does not ensure the employers liability—it only allows the establishment of a prima facie case easier for the employee. The employer has a significant opportunity to defeat the claim following the prima facie case. Indeed, if the employer can demonstrate that the employer was terminated for an appropriate, non-FMLA related matter, the employer will prevail. The McDonnell Douglas framework and temporal proximity do not determine a case—they only determine where the burden of evidence lies. To grant employers an even stronger hand is unnecessary.
Conclusion
Courts should follow the Eleventh Circuit’s end-date approach in determining temporal proximity for the purposes of the FMLA. To do otherwise violates the spirit of the FMLA and provides employers a cover for illicit termination of employees. The Eleventh Circuit’s end-date approach to temporal proximity under the FMLA is the proper one.
[1]FMLA (Family & Medical Leave), United States Department of Labor, https://www.dol.gov/general/topic/benefits-leave/fmla (last visited Sep 22, 2017).
[2] Jones v. Gulf Coast Health Care of Del., LLC, 854 F.3d 1261, 1267 (11th Cir. 2017)
[3] Jones at 1272
[4] Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012)
[5] FAMILY AND MEDICAL LEAVE ACT OF 1993, 1993 Enacted H.R. 1, 103 Enacted H.R. 1, 107 Stat. 6, 29-7
[6] FAMILY AND MEDICAL LEAVE ACT OF 1993, 1993 Enacted H.R. 1, 103 Enacted H.R. 1, 107 Stat. 6, 29-7
[7] FMLA (Family & Medical Leave), United States Department of Labor, https://www.dol.gov/general/topic/benefits-leave/fmla (last visited Sep 22, 2017).
[8] 29 C.F.R. § 825.220(c)
[9] See Jones at 1270.
[10] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973)
[11] Using this framework in the FMLA has its critiques. See Chelsey Jonason, Keeping Mothers in the Workplace: Shifting from McDonnell Douglas to Protect Employees Who Use FMLA Leave, https://www.americanbar.org/content/dam/aba/publications/aba_journal_of_labor_employment_law/spring2017_v32n2/JLEL%2032-3%20JONASON%20FINAL%20PDF.authcheckdam.pdf. However, even these critiques acknowledge the wide use of the test in the courts. See id. at 439.
[12] Jones at 1271 (quoting Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010))
[13] Id. at 1271
[14] Id.
[15] Jones at 1272; Sisk at 900.
[16] Id.
[17] See, e.g., Jones v. Gulf Coast Health Care of Del., LLC, 854 F.3d 1261, 1272 (11th Cir. 2017); Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012)
[18] Jones at 1272
[19] Sisk at 900
[20] Jones at 1272.
[21] Id.
[22] Id. at 1273.
[23] Id.
[24] Sisk at 900.
[25] Id. at 901.
[26] See, id..
[27] Id.
[28] Id. at 900.
[29] FAMILY AND MEDICAL LEAVE ACT OF 1993, 1993 Enacted H.R. 1, 103 Enacted H.R. 1, 107 Stat. 6, 29-7
[30] 29 C.F.R. § 825.220(c)
[31] Retaliate, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/retaliate.
