I. INTRODUCTION

Big Bad Company granted Ms. Little a leave of absence under the Family and Medical Leave Act ("FMLA").1 While on leave, Big Bad's Manager, I. M. Wolfe, learned Little failed to complete certain tasks prior to her leave. Wolfe huffed and puffed and fired Little. Little calls an attorney. What type of FMLA claim may Little assert? Will the choice influence her prima facie case or burden of proof?

Big Bad received Little's Complaint. Wolfe huffed and puffed and called Big Bad's employment attorney, Ben DairDundat. DairDundat reminds Wolfe he has handled many FMLA cases for other equally big and equally bad clients. "He knows what to do." Upon investigation, Ben DairDundat confidently advises Wolfe that even if Little makes a prima facie case of discrimination or retaliation, there seems to be no evidence of pretext for Little to ultimately prevail. Is Ben DairDundat's advice sound? Must Little prove pretext? The answers depend on the types of FMLA claims at issue.

Appellate courts are split on these questions.2 They are divided on how to characterize FMLA claims and, as a result, are also divided on the prima facie elements and evidentiary burdens. In Smith v. Diffee Ford-Lincoln-Mercury, Inc.,3 addressing facts like those above, the Tenth Circuit joined the split and answered these questions. Smith recognizes an important distinction between interference claims and discrimination/retaliation claims, which impacts the prima facie case and burdens of proof.4

II. THE STATUTORY CONTEXT FOR CORRECTLY CLASSIFYING FMLA CLAIMS

Properly classifying FMLA claims requires familiarity with the statutory context from which such claims arise. Congress enacted the FMLA "to balance the demands of the workplace with the needs of families ...."5 To that end, the FMLA creates both prescriptive and proscriptive rights.6 Prescriptive rights include the right to take up to 12 weeks of unpaid leave in a 12-month period for qualifying reasons,7 the right to continued benefits coverage during the leave,8 and the right to be restored to a substantially equivalent job with substantially equivalent pay and benefits upon return.9

To protect prescriptive rights, the FMLA creates certain proscriptive rights which form the basis of FMLA claims.10 The first proscriptive right prohibits employers from interfering with, restraining, or denying the exercise of any prescriptive right.11 The Tenth Circuit characterizes claims of alleged interference, restraint, or denial as "interference" claims.12 The second and third proscriptive provisions explicitly outlaw "discrimination," but both actually target retaliation.13

III. THE TEXT OF § 2615: THE STARTING POINT FOR CLASSIFYING FMLA CLAIMS

The starting point for classifying FMLA claims correctly is § 2615. While the Secretary of Labor attempted to illustrate the operation of § 2615,14 at least one court criticized the illustrations for causing confusion by using imprecise terminology at odds with the statute.15 As a result, some circuits treat interference claims the same as retaliation claims.16 The text of the statute, however, supports the distinction recognized by Smith. Section 2615 provides:

(a) Interference with Rights--

(2) Discrimination - It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this title.

(b) Interference with Proceedings or Inquiries--It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual -

(2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this title; or

(3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this title.17

As the text reflects, the bar against interference in § 2615(a)(1) broadly protects all FMLA prescriptive rights. In contrast, the proscription against discrimination in § 2615(a)(2) and § 2615(b) focuses narrowly on retaliation against employees for "opposing" unlawful practices generally or for participating in specific proceedings or inquiries concerning an employer's FMLA-related practices.

Smith shows that characterizing FMLA claims correctly is not difficult. The key is simply being aware the issue exists. The type of claim depends on the type of employer conduct at issue.18 Like other employment cases, an FMLA case may involve claims of interference, retaliation, or both. The following examples illustrate the characterization of FMLA claims.

An employer who terminates an employee while on FMLA leave, as in Smith, may have unlawfully interfered with (and denied) the right to exercise protected leave, as well as the corollary right to reinstatement. The discharge under these facts is not discrimination or retaliation, because there is no evidence it occurred because the employee opposed allegedly unlawful conduct or participated in proceedings or inquiries relating to allegedly unlawful conduct.19

If, in contrast, the employer terminated the employee while on leave because the employee threatened legal action if the employer denied her the right to remain on leave for the full twelve-week period, the termination may be discriminatory/retaliatory. In this instance, the employer fired the employee in retaliation for opposing allegedly unlawful conduct.20

Similarly, if the employer contacted the employee while on leave and told her she must return by a date certain or lose her job, and the employee sent a letter to the Department of Labor with a copy to the employer complaining the employer was violating the FMLA by calculating her leave time incorrectly, a termination following receipt of the letter may be retaliatory. It also could be characterized as an act of interference with the employee's right to twelve weeks of leave.

IV. INTERFERENCE CLAIMS: ELEMENTS AND BURDENS

A prima facie case of interference includes the following elements: (1) entitlement to an FMLA right, (2) interference with, restraint, or denial of the exercise or attempt to exercise the right, and (3) harm.21 If the plaintiff presents sufficient evidence of interference, the employer must prove its actions were appropriate and do not constitute unlawful interference.22

A plaintiff asserting an interference claim need not prove discriminatory intent.23 Instead, a plaintiff need only prove entitlement to an FMLA right that was interfered with or denied.24 As one court explained:

Moreover, the employee who asserts an interference claim need not show disparate treatment.26

V. DISCRIMINATION/RETALIATION CLAIMS: ELEMENTS AND BURDENS

Discrimination and retaliation claims require evidence of wrongful intent. Alternatively, the plaintiff must show that an employer's proffered reason for its action is false.27 The question is whether the employer took adverse action in response to the employee's opposition or participation activities.28 Courts apply the traditional McDonnell-Douglas burden-shifting approach to address the elusive issue of motivation.29 McDonnell-Douglas distributes the burdens of production and persuasion in a three-step process.30 The first step is establishing a prima facie case,31 which includes: (1) employee opposed unlawful conduct or participated in specified activities; (2) adverse employment action; and (3) a causal nexus between protected activity and the adverse action.32

If the employee presents a prima facie case, the second step of McDonnell-Douglas shifts the burden to the employer to adduce evidence of legitimate, nondiscriminatory reasons for its action.33 The employer's evidence must be sufficient to raise a genuine issue as to whether it discriminated or retaliated against the employee and must justify judgment in its favor.34 If the employer satisfies its burden of production, the presumption of discrimination or retaliation evaporates.

At the third step, the employee shoulders the ultimate burden of proving that the employer's alleged reason for taking adverse action is a pretext to mask discrimination or retaliation.35 To prevail, the employee may but need not present additional evidence beyond that establishing a prima facie case. To determine whether the employer's explanation is merely pretext, the court or jury may consider any inferences that properly can be drawn from the evidence establishing the prima facie case.36

Naturally, employers prefer application of McDonnell-Douglas to both interference and retaliation claims, because it forces the employee to prove pretext.37 Employees, on the other hand, prefer the simpler approach of Smith, since pretext is irrelevant for interference claims.

There is, however, a potential trap for the unwary. The distinction between interference and retaliation claims fades to some extent in cases of interference with the right to reinstatement where the employer purportedly terminates the employee for other legitimate reasons.38 An employee on FMLA leave has no greater rights than those not on leave.39 An employer may deny reinstatement and fire an employee on leave if it would have done so anyway for legitimate reasons.40 The employer must prove it would have fired the employee anyway for reasons other than exercising FMLA rights.41 As under the McDonnell-Douglas approach, the employee must present sufficient evidence for the jury to conclude the decision to terminate was due to the exercise of FMLA rights.42

VI. CONCLUSION

Counsel for both plaintiffs and defendants must become acquainted with the differences between FMLA interference and retaliation claims to plan litigation strategies appropriately. Proactive defense counsel should use Smith to train managers in establishing and adhering to policies and practices tailored to avoid interference and retaliation claims, particularly since interference claims will be easier to prove.

1. 29 U.S.C. § 2601 et seq.
2. See infra note 19.
3. 298 F.3d 955 (10th Cir. 2002).
4. Id. at 960-61.
5. 29 U.S.C. § 2601(b)(1).
6. Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1122-23 (9th Cir. 2001); O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1352 (11th Cir. 2000); Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir. 1998); Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712-13 (7th Cir.1997).
7. 29 U.S.C. § 2612.
8 . Id. § 2614(c). Other accrued benefits are also protected. Id. § 2614(a)(2).
9. Id. § 2614(a).
10. Id. § 2615. Section 2617(a) grants the right to sue for damages for violations of § 2615.
11. Id. § 2615(a)(1).
12. Smith, 298 F.3d at 960-61 (also referred to as "entitlement" claims).
13. 29 U.S.C. §§ 2615(a)(2), (b); Smith, 298 F.3d at 960-61.
14. 29 C.F.R. § 825.220.
15. Bachelder, 259 F.3d at 1124.
16. Id. at 1124 n.10.
17. 29 U.S.C. § 2615 (emphasis added).
18. Smith, 298 F.3d at 960-61 (comparing conduct at issue in previous Tenth Circuit FMLA cases).
19. Smith, 298 F.3d at 960-61; see also Bachelder, 259 F.3d at 1124; Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1148 (8th Cir. 2001); S trickland v. Water Works and Sewer Bd., 239 F.3d 1199, 1208-09 (11th Cir. 2001); O'Connor, 200 F.3d at 1352; Diaz, 131 F.3d at 712.
20. See, e.g., Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301-02 (4th Cir. 1998) (termination of employee after he threatened legal action due to being demoted upon return from FMLA leave was unlawful retaliation).
21. Smith, 298 F.3d at 960-62; Bachelder, 259 F.3d at 1125; Strickland, 239 F.3d at 1206-07; O'Connor, 200 F.3d at 1352-53; King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999); see also Ragsdale, 122 S. Ct. at 1161 (cognizable FMLA claim requires showing of harm); Williams v. Toyota Motor Mfg. Ky., Inc., 224 F.3d 840, 845 (6th Cir. 2000), rev'd on other grounds, 534 U.S. 184 (2002). But see Bachelder, 259 F.3d at 1124 n.10 (citing cases utilizing the traditional retaliation elements and McDonnell-Douglas burden-shifting approach).
22. See Smith, 298 F.3d at 960-62.
23. Id. at 960; Strickland, 239 F.3d at 1208 (comparing burdens).
24. Smith, 298 F.3d. at 960-65 (using preponderance standard).
25. Hodgens, 144 F.3d at 159 (citing Diaz, 131 F.3d at 712-13).
26. Taylor v. The Union Inst., 2002 WL 252443 (6th Cir. 2002).
27. See, e.g., Hodgens, 144 F.3d at 160-61.
28. 29 U.S.C. § 2615(a)(2), (b).
29. Hodgens, 144 F.3d at 160-61.
30. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817 (1973)
31. Hodgens, 144 F.3d at 161.
32. Darby v. Simon, 2002 WL 535095, *3 (8th Cir. Apr. 11, 2002) (citing Tenth Circuit authority); Nichols v. Ashland Hospital Corp., 251 F.3d 496, 502-03 (4th Cir. 2001); Chaffin v. John H. Carter, Inc., 179 F.3d 316 (5th Cir. 1999); Hodgens, 144 F.3d at 161; Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997).
33. Hodgens, 144 F.3d at 161.
34. Id. (quoting Burdine, 450 U.S. at 255).
35. Id.
36. Hodgens, 144 F.3d at 161; Hicks, 509 U.S. at 511, 113 S.Ct. 2742.
37. Bachelder, 259 F.3d at 1125; Strickland, 239 F.3d at 1206-07.
38. Smith, 298 F.3d at 960-62 (discharge based on purported performance problems).
39. See 29 U.S.C. § 2614(a)(3)(B); 29 C.F.R. §§ 825.216(a), 825.312(d).
40. Smith, 298 F.3d at 960-62; Wascura v. City of South Miami, 257 F.3d 1238, 1247-48 (11th Cir. 2001); Parris v. Miami Herald Pub. Co., 216 F.3d 1298, 1301-02 (11th Cir. 2000); Gunnell v. Utah Valley State College, 152 F.3d 1253, 1262 (10th Cir. 1998).
41. Smith, 298 F.3d at 960-62; Parris, 216 F.3d at 1301 n.1 (citing § 825.216(a)).
42. Smith, 298 F.3d at 960-62; P arris, 216 F.3d at 1302-03.