Hunton Employment & Labor Perspectives

On August 8, 2011, the Second Circuit issued a decision in Millea v. Metro-North Railroad Co., taking an expansive view of the Family and Medical Leave Act’s (“FMLA”) anti-retaliation provision.  Turning to Title VII for guidance, the Court held that the jury should have received an instruction that broadly defined the term “materially adverse action.”

In Millea, an employee who took intermittent FMLA leave for anxiety attacks related to post traumatic stress disorder, brought suit alleging FMLA claims of interference and retaliation and a claim of intentional infliction of emotional distress.  The employee’s FMLA retaliation claim was based on his allegations that his employer retaliated against him for taking FMLA leave by; 1) placing a notice of discipline in his employment file for a year; 2) requiring him to update his FMLA certification; 3) creating a work environment that motivated him to transfer to a lower paying job; 4) delaying approval of his bid for the lead custodian position; and 5) subjecting him to heightened managerial surveillance.

On appeal, the employee disputed the lower court’s jury instruction, arguing that the jury should have been given a broad definition of the term materially adverse employment action in regards to his FMLA retaliation claim.  The lower court had instructed the jury that an “‘adverse employment action’ is a materially adverse change in the terms and conditions of employment’’ and explained that examples include termination, demotion, loss of benefits and significantly diminished responsibilities, but not an alteration of job responsibilities or a mere inconvenience.   The lower court explicitly refused to apply the employee’s proposed definition which was based on the standard articulated in Burlington Northern & Santa Fe Railway Co. v. White, a Title VII case.  548 U.S. 53 (2006).  The Burlington Northern standard established by the Supreme Court, explains that an adverse employment action occurs when a reasonable employee would have found the alleged retaliatory action materially adverse and that a retaliatory action is materially adverse when the action would have been likely to dissuade or deter a reasonable employee from exercising his legal rights. 

The Second Circuit found that the district court’s definition was “impermissibly narrow and therefore erroneous” and agreed that the definition established in Burlington Northern should be applied to the FMLA.  The Second Circuit explained that Burlington Northern’s treatment of its anti-retaliation provision is applicable to the FMLA because the FMLA’s anti-retaliation provision has the same underlying purpose as Title VII and also has wording that is almost identical to Title VII.  Based on these similarities, the Court concluded that a materially adverse action within the FMLA “is any action by the employer that is likely to dissuade a reasonable worker in the plaintiff’s position from exercising its legal rights.”

The Second Circuit is not alone in treating the FMLA anti-retaliation provision broadly; the Fourth, Fifth, Seventh and Tenth Circuits have also applied Title VII’s definition of a materially adverse action to the FMLA.  Notably, the definition of a materially adverse action in Burlington Northern includes actions that involve a change in employment life outside of the terms and conditions of employment.  This broad treatment of a materially adverse action means that employees bringing FMLA retaliation claims have a much lower threshold to meet.  As a result, due to this expansion of the universe of adverse actions, there is potential for a greater number of claims alleging FMLA retaliation.  Employers should be aware of this FMLA standard and be conscious of strictly enforcing and promoting FMLA anti-retaliation policies and procedures.