Hunton Employment & Labor Perspectives

A surgeon recently brought suit against his employer, in Staveley-O’Carroll v. Penn State Milton S. Hershey Medical Center, alleging that he was fired in violation of the Family and Medical Leave Act (“FMLA”).  No. 1:13-cv-01555-YK (M.D. Pa. filed June 18, 2013). Interestingly, the surgeon is not claiming that he was entitled to, requested, or took FMLA leave.  Rather, he claims that he was retaliated against for defending his secretary’s FMLA rights.

Plaintiff, Dr. Staveley-O’Carroll, worked at the Penn State Milton S. Hershey Medical Center and the Penn State University College of Medicine as a cancer surgeon and professor.  Dr. Staveley-O’Carroll alleges that, during his employment, his secretary was mistreated by the hospital after she sought and took FMLA leave relating to breast cancer surgery.  The complaint contends that Dr. Staveley-O’Carroll’s secretary was called into a disciplinary hearing, told she could not discuss her cancer with coworkers, told she could not take breaks, and, following her surgery, was forced to transfer to a different department.  Dr. Staveley-O’Carroll claims that he was retaliated against when he complained, both verbally and in writing, about the alleged mistreatment of his secretary.  He claims that he suffered retaliation when he was denied a raise and professional advancement activities, unfairly investigated, refused supervision, restricted access to his email, and ultimately terminated.

This lawsuit is somewhat unusual because the plaintiff is a third party claiming that he was retaliated against in violation of the FMLA.  Courts have previously addressed the concept of third parties bringing claims under other employment statutes, finding that third parties may bring claims if they are in the “zone of interest.”  For example, in Thompson v. North American Stainless, LP, the Supreme Court explained that the zone of interest test looks to see “‘if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’”  131 S.Ct. 863, 869-70 (2011) (internal citations omitted).  In that case, the plaintiff alleged he was retaliated against in violation of Title VII when he was terminated after his fiancé, who worked for the same employer, filed a charge of gender discrimination with the Equal Employment Opportunity Commission.  At least some other courts have declined to expand FMLA protections for purely “associational” claims.  See, e.g., Elsensohn v. St. Tammany Parish Sheriff's Office, No. 07-30693, 2008 U.S. App. LEXIS 12209 (5th Cir. June 6, 2008) (affirming dismissal of claim by employee who claimed FMLA retaliation because of his association with his wife, who filed a lawsuit against the same employer alleging violations of the FMLA, noting that the plain language of the FMLA does not recognize derivative retaliation claims).

The Pennsylvania lawsuit attempts to break new ground because it is a third party case brought under the FMLA and seeks to expand the zone of interest to FMLA claims.  The United States District Court for the Middle District of Pennsylvania, where Dr. Staveley-O’Carroll’s lawsuit was filed, will need to decide whether the zone of interest should be applied to FMLA cases and also determine exactly how far the zone of interest reaches.  Dr. Staveley-O’Carroll alleged that he had a “significant connection” to his secretary because he worked with her on a regular basis and supervised her work.  In determining whether the plaintiff has stated a claim, the Court will need to rule on whether this connection is enough.  The outcome of this case could be significant.  By stretching the zone of interest, it has the potential of exposing employers to a number of additional claims based on the possibility of a variety of new plaintiffs.