On January 17, 2012, nearly twenty years after the introduction of the Family and Medical Leave Act (“FMLA”), the Sixth Circuit clarifies the proper standard of proof for FMLA interference claims by applying the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The McDonnell Douglas burden-shifting framework, as applied to interference claims, is a three step process: First, the Plaintiff must demonstrate that an employer interfered with the exercise of FMLA rights. Second, the burden shifts to the employer to show that the adverse action was unrelated to the employee engaging in protected FMLA activity. Third, the employee may then show that the employer’s stated reason is “pretextual.”
In Donald v. Sybra, Inc., Case No. 10-2153 (6th Cir. January 17, 2012). Plaintiff Gwendolyn Donald (“Donald”) worked as an assistant manager at an Arby’s restaurant in Michigan. Due to a number of serious health problems, Donald was required to take multiple medical leaves. Prior to Donald’s last medical leave, her employer noticed irregularities in how customers were charged. After comparing the orders Donald took to the figures entered into her register, the employer suspected that Donald improperly discounted the orders and pocketed the difference. Donald took a short FMLA leave shortly before the investigation was complete and was terminated the day she returned to work. Donald sued, alleging various theories of discrimination and retaliation; most notably that her termination amounted to retaliation for taking FMLA leave and interference with her rights under the FMLA.
The trial court granted summary judgment in favor of the employer, noting that even though it was unclear whether Donald established a prima facie case of FMLA interference and retaliation, she failed to demonstrate the justification for her termination was pretextual.
In upholding the lower court, the U.S. Court of Appeals for the Sixth Circuit noted that it was clear the McDonnell Douglas test applied to retaliation claims under the FMLA; however, it was unclear whether the same analysis would apply to interference claims. Attempting to clarify the “morass,” the Sixth Circuit focused on its 2008 decision in Grace v. USCAR, 521 F.3d 655 (6th Cir. 2008), holding that the Court had “effectively adopted the McDonnell Douglas tripartite test without saying as much,” and that the burden-shifting test applied to FMLA interference claims as well as to FMLA retaliation claims.
Curiously, although the Sixth Circuit took great strides to find that McDonnell Douglas burden shifting standard applied to interferences cases under the FMLA, it blatantly ignored the first two steps of the analysis and skipped directly to Donald’s burden of establishing pretext. Donald’s sole evidence of pretext was the close temporal proximity between her FMLA leave and her termination. The Sixth Circuit clarified that “[t]emporal proximity is insufficient in and of itself to establish that the employer’s nondiscriminatory reason for discharging an employee was in fact pretextual.”
Based on the Sixth Circuit’s application of McDonnell Douglas, it appears that the three step analysis may effectively be reduced to one: whether the Plaintiff can show that the Employer’s stated reason for termination was pretextual. This may serve as a sizable burden for Plaintiffs who clearly may not rely on indicators like temporal proximity as the sole basis of their claim.
