FMLA retaliation case is revived on appeal

Two carpenters who worked for Yeshiva University prevailed in the Court of Appeals this week, which ruled that the employer's inconsistent justifications for the termination, along with the timing of their dismissal, raises a plausible claim for retaliation under the Family and Medical Leave Act and the New York City Human Rights Law. I briefed and argued the appeal.

The case is Padilla v. Yeshiva University, a summary order filed on May 31, 2017. Each plaintiff has a disability. They sought and were granted leave under the FMLA. While they were out on leave, they were let go. Plaintiffs also alleged that their boss had expressed anger/impatience with prior medical leaves. Management argued that they were terminated under a reduction-in-force and that they had granted prior FMLA leaves to the plaintiffs, so there is no inference of FMLA retaliation. The same argument applied to the claim under the disability discrimination under the New York City Human Rights Law.

The district court dismissed the case under Rule 12. If you are new to this, the Second Circuit clarified the rules governing Rule 12 dismissals in employment discrimination cases in 2015, in two cases: Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), and Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015), which are must-read opinions if you handle cases like this in the Second Circuit. Those decisions say that the plaintiff's burden in pleading a discrimination claim is quite low, even under the Iqbal plausibility rules that judges have repeatedly cited in throwing out lawsuits left and right.

The Court of Appeals (Cabranes, Chin and Kearse) reverses, barely one week after oral argument, which can be heard at this link. The Court tells us:

We hold that at the pleading stage the inconsistent explanations for their termination, together with the other allegations in the complaint, including as to the timing and sequence of events and purported hostility with respect to Plaintiffs’ prior exercise of FMLA rights, are enough to support an inference of retaliation. Since “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,” a plaintiff need only allege enough facts “to raise a right to relief above the speculative level” and “state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir. 2010). While it is noteworthy, as the district court noted, that the Plaintiffs previously applied for FMLA leave without any adverse consequences, that fact does not defeat the plausibility of Plaintiffs’ claim.

This reasoning also applies to the City law claim, which provides for greater rights than its federal counterpart.