Disability, Leave & Health Management Blog : Attorneys & Lawyers for Employer Legal Protections in Businesses Nationwide

Whether a supervisor mistreated the plaintiff after he returned from his second leave of absence, causing him to need a third leave, is irrelevant to his FMLA retaliation claim because “[e]xacerbation is not a valid theory of liability under the FMLA” according to the Seventh Circuit.  Breneisen, Jr. and Lineweaver v. Motorola, Inc. (7th Cir. Sept. 2, 2011). The cause of a medical condition is irrelevant to whether an employee is entitled to FMLA leave, the court added.

The employee had exhausted his FMLA leave and had been granted a second leave for five months. The plaintiff alleged that when he returned, hissupervisor’s mistreatment caused him  stress, high blood pressure and stomach reflux, requiring him to take a third leave from which he never returned, which led to his losing his job.

The court rejected plaintiff’s claim, holding that the FMLA does not recognize “an exacerbation theory,” and that if an employee cannot work due to a serious health condition after exhausting FMLA leave, the FMLA no longer applies, regardless of the cause of the infirmity.

The plaintiff’s argument seems to be an attempt to juxtapose the standard for an employee to receive workers compensation benefits, i.e., has suffered an illness or injury out of or in the course of employment, onto the FMLA. Because the medical condition causing the need for leave arose out of or in the course of my employment, the plaintiff’s argument would go, the plaintiff is entitled to even more than 12 weeks of FMLA leave if necessary. The court’s rejection of this argument removes the negligence concepts of “cause” and “exacerbation” from FMLA analysis, at least in determining the amount of FMLA to which an employee is entitled.

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Add the Second Circuit to the chorus of circuits to apply the Supreme Court’s standard for Title VII retaliation claims to FMLA retaliation claims as well. In its 2006 Burlington Northern & Santa Fe Railroad Co v. White decision, the Supreme Court expanded the definition of “materially adverse employment action” for purposes of Title VII retaliation. The Supreme Court held that such an action is one that well might have dissuaded a reasonable employee from making or supporting a charge of discrimination. In Millea v. Metro North R.R. Co., the Second Circuit held that this same “materially adverse” standard applies to FMLA retaliation claims, citing similar determinations by the 3rd, 4th, 5th, 7th and 10th Circuits.

The Burlington Northern standard is a much broader standard, more favorable to plaintiffs, than the definition of “adverse employment action” applicable in non-retaliation cases. This expanded definition has contributed to an increasing number of retaliation charges. During the EEOC’s most recent fiscal year, more than one third of all charges filed with the agency included a retaliation claim.

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Sometimes a case makes you wonder. Bruce Casanova, a former American Airlines baggage handler, told the jury he lied to American and feigned forgetfulness in an “Article 29F” investigation of his work related injury, and refused to provide a written statement concerning the circumstances of his injury as required by the collective bargaining agreement, according to the Seventh Circuit in Casanova v. American Airlines, Inc.  Nonetheless, the jury awarded him more than $1 million, including $724,000 for punitive damages, on his argument that American terminated him in retaliation for his anticipated workers compensation claim. Which led the Seventh Circuit to wonder: “How could a jury return a verdict in Casanova’s favor, and award more than $1 million, when his discharge is amply supported by undisputed facts?”

The answer, according to the Seventh Circuit, is that “the trial was hijacked by plaintiff’s counsel and used to protest the Article 29F procedure.” The plaintiff focused the jury on the issue of whether American “should order surveillance of employees who claim to be injured, and whether employers should use such surveillance as the basis of interrogation,” according to the Court. “This case never should have reached a jury,” it held, and set aside the jury’s verdict.

The Court noted that “American has a zero-tolerance policy for material lies by its workers [and that] Casanova has not identified any other worker who behaved in a similar fashion at and after an Article 29F hearing and was not fired.” The Court continued: “Indeed, it is almost impossible to conceive that any employee who conducted himself in this fashion would not be fired, by American Airlines or any other employer that wants to maintain the respect and obedience of its labor force.” The Court added that Casanova did not provide any evidence that American’s explanation for his termination was a pretext for unlawful retaliation.

This was the second Seventh Circuit case within three weeks to uphold an employer’s ability to use surveillance to test the bona fides of a workers compensation claim. In the earlier case, Gacek v. American Airlines, Inc., another former baggage handler sued American Airlines for retaliatory discharge in violation of the state workers compensation law. American had hired a detective agency “to check up on” the plaintiff-injured worker, who had called out sick during the December holiday season. American terminated the plaintiff’s employment after his explanations for his absences were “in tension” with the observations of the detectives. The Seventh Circuit affirmed summary judgment for American.

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