FMLA plaintiff gets new trial on retaliation claim

The Court of Appeals holds that Metro-North violated the Family and Medical Leave Act in requiring an employee to comply with an in-house leave procedure that is inconsistent with the FMLA. The Court further says that, on the FMLA retaliation claim, the trial court must charge the jury consistent the Burlington Northern standard, which asks if the employer's reaction to the plaintiff's protected activity would dissuade a reasonable employee from asserting his rights again.

The case is Millea v. Metro-North Railroad, decided on August 8. Millea suffered from post-traumatic stress disorder and, due to a confrontation with his supervisor, had a panic attack at work that forced him to miss work. He wanted to take FMLA leave. Metro-North policy said that you have to notify your immediate supervisor for this. Technically, Millea did not comply with the policy. Instead, he told another supervisor about the FMLA leave who, in turn, notified Millea's immediate supervisor. Metro-North actually disciplined Millea for violating company rules. The jury ruled in Millea's favor, awarding him $612.50 in damages. Metro-North challenges the verdict.

The challenge fails. As the company policy that Millea technically violated is inconsistent with the FMLA, which allows for indirect notification to a supervisor in emergency circumstances, he could not be disciplined for violating company policy, and the jury properly ruled in Millea's favor on the FMLA interference claim.

Millea himself takes up an appeal in this case, arguing that the trial court did not properly charge the jury on the elements of his FMLA retaliation claim. If you handle retaliation claims, you are familiar with the test in Burlington Northern v. White, 547 U.S. 53 (2006), which says an adverse employment action occurs when management's response to the protected activity (such as asserting your rights under the employment discrimination laws) would dissuade a reasonable employee from asserting his rights in the future. That is not the charge that the trial court read to the jury. The trial court used a different "adverse employment action test," which asks whether the plaintiff suffered a "material adverse change in the terms and conditions of employment," such as demotion, pay cut, demotion or significantly diminished responsibilities. Courts don't use the latter test in retaliation cases; it applies in trying to make out a prima face case for disparate treatment. For this reason, since retaliation plaintiffs don't have to prove a materially adverse change in the terms and conditions of employment, retaliation cases are easier to prove than general disparate treatment cases.

The Burlington Northern case was a Title VII retaliation case. The Court of Appeals says there's no reason why Burlington Northern cannot apply in FMLA retaliation cases, also. Other Circuits have already ruled this way, and the Second Circuit follows suit. Millea suffered retaliation when management placed a formal reprimand in his personnel file. While "petty slights" are not enough to make out a retaliation claim, this is not a trivial sanction, the Second Circuit says. It would in fact dissuade workers from asserting their rights in the future because

it can reduce an employee’s likelihood of receiving future bonuses, raises, and promotions, and it may lead the employee to believe (correctly or not) that his job is in jeopardy. A reasonable jury could conclude as much even when, as here, the letter does not directly or immediately result in any loss of wages or benefits, and does not remain in the employment file permanently.

Since the jury may find that the formal warning in Millea's personnel file is an adverse employment action, he gets a new trial on this claim under the proper jury instruction. The Court of Appeals also ruled in Millea's favor on his attorneys' fees appeal. That is a blog posting for another day, folks.