Friday, September 7, 2012

3d Circuit Addresses FMLA Issues - COTW #108

The Third Circuit recently delivered a 44-page precedential opinion on a number of FMLA issues in Lichtenstein v. UPMC.

Mixed Motive FMLA Claims

After Gross v. FBL killed "mixed motive" analysis in favor of a "but for" standard for ADEA claims, come wondered whether the same thing would happen to FMLA claims. The Third Circuit lined up the issue . . . wait a second . . . it's a punt! Yup, they punted on the issue. They did include some hints about how they might rule, noting:
Although some courts have recently questioned the viability of mixed-motive claims under the FMLA in the wake of Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2349 (2009), the only federal court of appeals to rule on the issue has held that Gross does not preclude FMLA mixed-motive claims. See Hunter v. Valley View Local Sch., 579 F.3d 688, 692 (6th Cir. 2009). The Department of Labor has taken a similar position, stating its view in an amicus brief that the FMLA continues to allow mixed-motive claims.
The Court found that the plaintiff could meet a higher standard, so no need to decide whether to use the lower standard. FYI - I covered Hunter back in 2009. I guess we'll have to wait for a final verdict.

Low Bar for Notice

FMLA plaintiffs must provide adequate notice to their employers of the need to take FMLA leave. The Court set a really low bar on summary judgment for adequate notice. In this case, the employee conveyed only that her mother was in the hospital, was taken there by ambulance, and she would be unable to work that day.
The question is whether the information allows an employer to “reasonably determine whether the FMLA may apply.” 29 C.F.R. § 825.303(b) (emphases added). Reasonableness does not require certainty, and “may” does not mean “must.” It does not matter that a person rushed by ambulance to the emergency room “might not” require inpatient care as defined under the FMLA. Since many people in this situation do require such care, a jury might find that reasonable notice was given under the circumstances.
The Court did not hold that the notice was adequate, only that a juror could reasonably conclude that it was adequate (which is enough to survive summary judgment).

Causation - Temporal Proximity

I don't think the Court broke any new ground in its legal analysis here. But they did provide a nice example of analysis regarding factual disputes at the summary judgment stage. Specifically, the Court addressed disputes over when the employer knew about the FMLA leave and when it took adverse action.

There were a few other issues packed into the Court's opinion. If you're interested in FMLA issues, it is definitely worth a read.