Sixth Circuit Holds McDonnell Douglas Framework Applies under the FMLA to Interference as Well as Retaliation Claims
- To establish a prima facie case of FMLA interference, an employee must show: (1) she was eligible to take FMLA leave; (2) the employer was covered by the FMLA; (3) the employee was entitled to FMLA leave; (4) the employee provided notice of her intention to take leave; and (5) the employer denied the employee FMLA benefits to which she was entitled.
- An employee sets forth a prima facie FMLA retaliation claim by demonstrating: (1) she was engaged in FMLA-protected activity; (2) the employer knew the employee was exercising FMLA rights; (3) the employer took an adverse action against the employee; and (4) there was a causal connection between the FMLA-protected activity and the adverse action.
The U.S. Court of Appeals for the Sixth Circuit held that Gwendolyn Donald was not entitled to a trial on her claims that Sybra LLC interfered with her rights and retaliated against her in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., when the company terminated her for suspected theft. The Court concluded that the burden-shifting framework originating with McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), was applicable to Donald’s FMLA interference claim as well as her FMLA retaliation claim. See 29 U.S.C. §§ 2615(a)(1), 2615(a)(2). The Court held that Donald failed to present sufficient evidence that Sybra’s stated reasons for terminating her — irregularities in her cash register and customer orders — were pretextual.
Sybra Terminates Donald for Suspected Theft
In late 2005, Sybra hired Donald as an assistant manager at one of its Arby’s restaurants in Saginaw, Michigan. In 2007, she took FMLA leave for about eight weeks to receive medical treatment. When Donald returned to work in September 2007, Sybra transferred her to a different Arby’s restaurant.
On February 14, 2008, Donald’s supervisor, Kyle Plum, noticed irregularities in receipts from Donald’s drive-in window drawer, which had a shortfall of $4 to $5. Plum found that the receipts indicated that orders were taken at full price, customers were presented with the totals at full price, but that orders were then modified to a discounted price. For a few days, Plum listened to Donald’s orders over a headset and compared the orders that Donald took to the figures that she entered in her register. Suspecting that Donald improperly discounted the orders and kept the difference for herself, Plum notified his supervisor.
On February 26, a scheduled day off, Donald called Plum to inform him that she would not be able to return to work until February 29 because she was experiencing pain from kidney stones. She did not give him formal written notice or a request for FMLA leave.
On February 29, 2008, when Donald returned to work, Plum, his supervisor, and a senior operations director confronted Donald regarding the shortage in her drawer and the investigation. Donald denied wrongdoing and refused to sign a statement conceding theft. Sybra terminated her employment.
District Court Grants Summary Judgment to Sybra
In June 2009, Donald sued Sybra in the Eastern District of Michigan alleging that her termination interfered with her FMLA rights and was in retaliation for her taking FMLA leave. The district court granted summary judgment to Sybra, applying the McDonnell Douglas framework, generally used in indirect proof discrimination and retaliation cases under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq. Donald v. Sybra, Incorporated, No. 09-CV-12252, 2010 BL 184991 (E.D. Mich. Aug. 11, 2010). The district court assumed that Donald could establish prima facie cases of FMLA interference and retaliation, and then shifted the burden to Sybra to offer a legitimate, nondiscriminatory reason for terminating Donald. Sybra presented the cash register and order irregularities as reasons for terminating Donald. The district court found that Donald failed to meet her burden of showing that these reasons were a pretext for unlawful interference and retaliation. Donald appealed.
As the Sixth Circuit stated, it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” any FMLA provision. 29 U.S.C. § 2615(a)(1). To establish a prima facie case of FMLA interference, Donald had to show that: (1) she was eligible to take FMLA leave; (2) Sybra was an employer under the FMLA; (3) Donald was entitled to FMLA leave; (4) Donald provided notice of her intention to take leave; and (5) Sybra denied Donald FMLA benefits to which she was entitled. See Killian v. Yorozu Automotive Tennessee, Inc., 454 F.3d 549, 556 (6th Cir. 2006).
As to retaliation, the Court explained, the FMLA bars employers from “discharg[ing] or in any other manner discriminat[ing] against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). For a prima facie FMLA retaliation case, Donald had to demonstrate that: (1) she was engaged in FMLA-protected activity; (2) Sybra knew that she was exercising her FMLA rights; (3) Sybra took an adverse employment action against her knowing that she had exercised her FMLA rights; and (4) there was a causal connection between the FMLA-protected activity and the adverse action. See Killian, 454 F.3d at 556.
McDonnell Douglas Applies to FMLA Interference and Retaliation Claims
The Sixth Circuit noted that it had previously applied the McDonnell Douglas framework to FMLA retaliation claims, see Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th Cir. 2006), but that the framework’s applicability to interference claims was less clear. The Court observed that the First and Seventh Circuits had declined to extend McDonnell Douglas to interference claims, drawing a clear distinction between the standards for establishing interference and retaliation. See, e.g., Colburn v. Parker Hannifin/Nichols Portland Division, 429 F.3d 325, 332 (1st Cir. 2005); Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712 (7th Cir. 1997). The Sixth Circuit concluded, however, that it was bound by Circuit rules to apply McDonnell Douglas to Donald’s interference claim because in Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008), a prior Sixth Circuit panel had effectively applied McDonnell Douglas to an FMLA interference claim without expressly declaring its intent to do so. See USCAR and Staffing Agency Deemed Joint Employers by Sixth Circuit, Allowing FMLA Claim to Proceed, Bloomberg Law Reports® – Labor & Employment, Vol. 2, No. 14 (Apr. 7, 2008). Accordingly, the Court held that the district court properly applied McDonnell Douglas to both claims.
Application of Standard
The Sixth Circuit was not persuaded by Donald’s contention that the timing of her termination sufficiently showed pretext, although it conceded that the timing gave it “pause.” Plum investigated the alleged shortage from February 14 to 22, but did not terminate Donald until her February 29 return from leave. The Court noted that February 29 was Donald’s first day back at work after the investigation concluded. The Court emphasized that temporal proximity cannot be the only basis for finding pretext, see Skrjanc v. Great Lakes Power Service Co., 272 F.3d 309, 315-16 (6th Cir. 2001), and rejected as unconvincing Donald’s other arguments such as Sybra’s alleged failure to follow its own procedures.
The Court also noted that, although Donald vigorously denied the accusation of theft, the inquiry was focused on whether Sybra honestly believed its proffered nondiscriminatory reason, that is, whether it “reasonably relied on the particularized facts that were before it at the time the decision was made.” See Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001).
No Consensus on Use of McDonnell Douglas
While the Sixth Circuit expanded the application of the McDonnell Douglas framework in this case, a different Sixth Circuit panel recently called attention to some of its shortcomings. In Provenzano v. LCI Holdings, Inc., No. 10-CV-1639, 2011 BL 316841 (6th Cir. Dec. 15, 2011), a case under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., the Court opined that the framework “often fails to fulfill its purpose” of helping to present a discrimination case because the burden shifting can be confusing, especially on summary judgment. See Sixth Circuit Holds District Court Misapplied Prima Facie Analysis in Age Discrimination Suit but Finds Lack of Pretext Evidence, Bloomberg Law Reports® – Labor & Employment, Vol. 6, No. 3 (Jan. 17, 2012). The Provenzano Court found that that district court engaged in a common misapplication of the analysis by pushing all the evidence into the prima facie stage and essentially ignoring the purpose and application of the other two stages. In Diaz, a case mentioned above in which the Seventh Circuit declined to extend McDonnell Douglas to FMLA interference claims, the Court questioned the framework’s utility, stating, “District courts regularly treat the prima facie case as a throwaway — holding discovery before deciding whether the plaintiff has satisfied the initial burden, then assuming its existence on the way to resolving the suit on other grounds.” Diaz, 131 F.3d at 712. Consequently, following this case, the circuit split concerning whether the framework should be applied to FMLA interference claims remains unresolved.
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