Under the Family Medical Leave Act (FMLA), retaliation by an employer is any action that can likely influence a reasonable worker not to pursue their legal rights, regardless of where the retaliation occurs, according to the U.S. Court of Appeals for the Second Circuit, Millea v. Metro-North Railroad Co., 10-409-CV, 2011 WL 3437513 (Aug. 8).
Reversing the District Court of Connecticut’s decision in favor of Defendant Metro-North, the Second Circuit in Millea rejected the lower court’s narrow definition of materially adverse action in favor of the broader Burlington Northern and Santa Fe Ry. Co. v. White retaliation standard, which was not limited to the terms and conditions of employment, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006). To put it another way, and important for employees seeking FMLA leave, the Millea court expanded the Burlington Northern Title VII retaliation standard to include claims under FMLA.
In Millea, Plaintiff Christopher Millea suffered from Post-Traumatic Stress Disorder. Millea had an argument with his supervisor, which triggered a panic attack, and he left work. Because the argument happened with his supervisor, he did not advise the supervisor directly of his FMLA leave but another staff member. He asked the staff member to tell his supervisor about the FMLA leave.
Millea also did the same thing the next day. This indirect notification, however, went against Metro-North’s leave policy.
While the district court correctly found Metro-North’s leave policy illegal by interfering with Millea’s access to FMLA leave, he still experienced retaliation in response to seeking his FMLA leave including an investigation by Metro-North which resulted in a formal notice of discipline placed on his file for a year.
In his retaliation claim to the Second Circuit, Millea appealed the jury instruction granted by the district court defining a materially adverse action, arguing it was too narrow and that the lower court should have used the Burlington Northern retaliation standard.
In Burlington Northern, the U.S. Supreme Court stated that Title VII’s “substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The antiretaliation provision seek to prevent harm to individuals based on what they do, i.e., their conduct,” Burlington, 548 U.S. 53, 63 (2006). Most critically, the Supreme Court reasoned that the anti-retaliation provision under Title VII had a larger scope than its anti-discrimination provision because the anti-retaliation provision’s objective could not be achieved by limiting employer retaliatory measures which occur only in the workplace.
To establish if retaliation occurred, the Supreme Court sought to “separate significant from trivial harms,” Burlington 548 U.S. 53, 68 (2006). To do this, Burlington Northern used an objective test to establish if a reasonable employee would be deterred from pursuing their legal rights in light of an employer’s action.
Applying this test in Millea, the Second Circuit found that writing a letter of reprimand could deter a reasonable employee from pursuing their FMLA leave, and that a jury could also conclude this. Even though Millea’s written reprimand was expunged after a year, this retaliatory action could still dissuade other employees from pursing their legal rights.
Under the Burlington Northern retaliation standard, expanded under Millea to include the FMLA, an employee who might decline to take FMLA leave for fear of employer’s reprimand or anything else which might tend to dissuade. Millea suffered a panic attack after an argument with his boss, received a letter of reprimand resulting from requesting FMLA leave, and even sought a lower-paying job to get a new supervisor. Millea’s employer caused him harm outside of the workplace, as both his health and income were affected due to retaliation.
Because of the expansion of Burlington Northern under Millea, employees now have more protection from employer retaliation when exercising their legal rights under federal law.
This article was written by Lindy Korn and Christina Akers, a second-year law student working in The Law Office of Lindy Korn during the summer of 2011.