Last February we reported on Woods v. START Treatment and Recovery Centers, Inc., a case before the Second Circuit in which the primary issue was whether to allow FMLA retaliation claims when the alleged retaliation was motivated only in part because of the employee’s FMLA leave. The Second Circuit issued its decision on July 19, 2017 and held that it would give Chevron deference to a Department of Labor regulation which applied a motivating factor causation standard for FMLA retaliation claims, as opposed to the “but for” standard used by the district court.
According to Woods, who worked as a substance abuse counselor for START since 2007, she requested medical leave for her severe anemia in February 2011. Woods claimed that she subsequently withdrew her request for leave after her supervisor told her to do so. Woods was hospitalized for her anemia in August 2011. In 2012, Woods was put on 90 day probationary period after she struggled with compliance and documentation, specifically in regards to inputting patient notes into her employer’s state-mandated note system. Woods further claims that START would not allow her to take FMLA leave during her probationary period, although START denies that. In April 2012, while Woods was still on probation, she was hospitalized again. Woods returned to work on April 28, 2012 and was terminated a few weeks later. As a result of her termination, Woods filed suit and alleged that she was terminated in retaliation for taking FMLA leave, while START asserted that she was fired because of her poor job performance. As we noted in our earlier report, the facts lend credence to both positions, making this a “mixed motive” case, meaning that the employer may have had both lawful and unlawful reasons for discharging the employee.
At trial, START argued, and the district court agreed, that “FMLA lacks “motivating factor” language and thus, under Nassar, the default “but for” causation standard applies.” Nassar dealt with a Title VII claim under the Civil Rights Act of 1964. The court ruled that it does not permit ‘mixed-motive’ retaliation claims under Title VII. The Supreme Court reiterated this position in Gross v. FBL Financial Services Inc., when reviewing claims under the Age Discrimination in Employment Act (ADEA). Under the “but for” standard, employees would have to show that, “but for” an employer’s retaliatory motive, the employer would not have taken the adverse employment action. In contrast, Woods argued that the appropriate causation standard that should be applied to her FMLA retaliation claim is the motivating factor standard, in that the standard is met if a jury finds that her FMLA leave was a negative factor in START’s decision to terminate her. The Second Circuit ruled in favor of Woods, relying on a DOL regulation which, in part, stated “employers cannot use the taking of FMLA leave as a negative factor in employment actions.” 29 C.F.R. 825.220(c). The court also held that FMLA retaliation claims such as this are actionable under § 2615(a)(1), since “[f]iring an employee for having exercised her rights under the FMLA is certainly “interfere[nce]” with or “restrain[t]” of those rights.”
Stay tuned for more updates on this case to see if it makes its way up to the Supreme Court.
Woods v. START Treatment & Recovery Centers, Inc., No. 16-1318-CV, 2017 WL 3044628 (2d Cir. July 19, 2017)
