Appeals Court OK's "Mixed Motive" FMLA Claim

By: Bill Pokorny

In a recent opinion, the United States Court of Appeals for the Sixth Circuit ruled that an employee could prevail on her FMLA retaliation claim even if she could not show that her use of FMLA leave was the decisive reason that her employer placed her on an involuntary medical leave. Hunter v. Valley View Local Schools.

Eunice Hunter worked as a night custodian at Valley View Local Schools. In June 2003, Hunter was injured in a car accident, which left her unable to work for sixty days. Hunter had several additional surgeries and extended absences in 2005 and 2005. In August 2005, Hunter's doctor cleared her to return to work after another extended medical absence, but prescribed significant permanent medical restrictions. In September 2005, Valley View advised Hunter that she would be placed on involuntary, unpaid leave, beginning the following month. In a letter, the District stated that Hunter was "placed on unpaid medical leave not to exceed one (1) year based on your doctor's restrictions limiting your ability to perform your job and excessive absenteeism for the past four (4) years."

In June 2006, Hunter filed suit against Valley View, alleging (among other claims) that Valley View violated the FMLA by forcing her to take involuntary leave based in part upon her absences over the prior four years, because most of these absences were FMLA-protected leave. Valley View filed a motion for summary judgment, which the district court granted. The district court found that even though there was evidence that Valley View improperly considered Hunter's prior FMLA leave when deciding to place her on involuntary medical leave, Hunter could not prevail because Valley View would have placed her on involuntary leave regardless of her prior FMLA leave, due to permanent medical restrictions that prevented her from performing her job duties. Hunter appealed.

The Court of Appeals reversed the district court's ruling. Analyzing the anti-interference and retaliation provisions of the FMLA, the court held that the FMLA prohibits an employer from considering an employee's use of FMLA leave as a "negative factor" in an employment decision, even if the decision also rests on other, permissible factors. In this respect, the court found that the FMLA differs from the Age Discrimination in Employment Act ("ADEA"), which the Supreme Court recently held does not allow for such "mixed motive" claims. Accordingly, once Hunter presented evidence that Valley View considered her FMLA leave when deciding to place her on involuntary medical leave, the burden shifted to Valley View to prove that it would have made the same decision even if it had not considered Hunter's FMLA-protected absences. The court held that Valley View could not conclusively establish that it would have made the same determination without regard to Hunter's protected FMLA leave, because the district's superintendent testified at her deposition that the district based its decision both upon Hunter's medical restrictions and her history of absenteeism. Consequently, the Court of Appeals remanded the case to the district court for trial.

This ruling may make it significantly easier for plaintiffs to prevail in FMLA retaliation claims in the Sixth Circuit, and elsewhere should other courts adopt the Sixth Circuit's reasoning. However, employers can reduce the risk of such claims through careful handling of employment actions involving employees who have used FMLA leave. In particular, as this case illustrates, employers should avoid any reference to FMLA leave as a reason for an adverse employment action. If an employee's absenteeism is at issue, employers should ensure that the employee's leave has been properly designated as FMLA or non-FMLA leave, and carefully distinguish between the two when referring to the employee's history of absences as a basis for discipline or other adverse actions.

For questions about the FMLA, please contact Jeff Nowak or Bill Pokorny or any other Franczek Radelet attorney.