In a case of first impression on a claim that an employer interfered with an individual’s exercise of her rights under the Family and Medical Leave Act, the federal appeals court in San Francisco held that the employer has the burden of proving it had a legitimate reason for not reinstating an employee to her former position following FMLA leave, and that the employee need not demonstrate her employer lacked a reasonable basis for its refusal. Sanders v. City of Newport, No. 08-35996 (9th Cir. Mar. 17, 2011).
FMLA entitles employees to take up to 12 workweeks of job protected leave for a qualifying reason and to return to the same or an equivalent position at the end of the leave. The statute prohibits employers from interfering with employees’ exercise of their FMLA rights.
Reversing a jury verdict in favor of the employer and ordering a new trial, the Ninth Circuit Court of Appeals held that the trial court’s instructions to the jury improperly placed the burden on the employee to prove that the employer had no reasonable cause for not reinstating her.
The Facts
Diane Sanders worked as a utility billing clerk for the City of Newport for approximately 10 years. After the City started to use a different type of billing paper, Sanders began to suffer health problems. She consulted with a specialist who diagnosed her as suffering from multiple-chemical sensitivity that was triggered by handling the new billing paper. On the basis of this advice, Sanders requested and received FMLA leave.
While Sanders was still out on leave, the City notified her that she needed “to present a fitness-for-duty certificate from [her] physician prior to being restored to employment.” Sander's doctor faxed a letter to the City stating that she could return to work, so long as she avoided using the problem-causing paper, which the City had stopped using during Sanders’s leave. The City, however, subsequently terminated Sanders’s employment because it could not guarantee that her workplace would be safe for her due to her chemical sensitivity.
Sanders sued the City for, among other things, interfering with her FMLA right to reinstatement. The case went to trial, and the jury was instructed that Sanders must prove that “she was denied reinstatement or discharged from employment without reasonable cause after she took family medical leave.” The jury returned a verdict for the City, and Sanders appealed, arguing that the jury instructions were erroneous.
Appeals Court on Reinstatement
The appellate court said that, to prove an FMLA interference claim, the “employee must establish that: (1) [she] was eligible for the FMLA’s protections, (2) [her] employer was covered by the FMLA, (3) [she] was entitled to leave under the FMLA, (4) [she] provided sufficient notice of [her] intent to take leave, and (5) [her] employer denied [her] FMLA benefits to which [she] was entitled.” Further, evidence that an employer failed to reinstate an employee “to her original (or an equivalent) position establishes a prima facie denial of the employee’s rights under the FMLA.”
However, the right of reinstatement is not absolute. The U.S. Department of Labor (“DOL”) regulations provide that “[i]f the employee is unable to perform an essential function of the position because of a physical or mental condition . . . the employee has no right to restoration to another position under the FMLA.” 29 C.F.R. § 825.214(b).
The regulations do not specify which party bears the burden of proof, and the Court had not previously addressed this issue. For guidance, the Court examined other FMLA regulations. Section 825.312(d) of the regulations provides that “[a]n employer must be able to show, when an employee requests restoration, that the employee would not otherwise have been employed if leave had not been taken in order to deny restoration to employment.” Similarly, Section 825.216(a) provides that “[a]n employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.” Based on these regulations’ “plain language,” the Court found the burden of proof is on the employer to show it had a legitimate reason to deny reinstatement.
Of the Circuit courts that have addressed the same issue, a majority (including the Eighth, Tenth and Eleventh) have held that the regulations “validly shift[] to the employer the burden of proving that an employee . . . would have been dismissed” regardless of the FMLA leave. Thus, the Court held, “[W]hen an employer seeks to establish that he has a legitimate reason to deny an employee reinstatement, the burden of proof on that issue rests with the employer.”
The Court further explained that by including a reasonable cause requirement, the trial court’s instruction erroneously permitted the jury to assess the City’s overall response to Sanders’s medical issues rather than directing the jury to consider the specific reasons under DOL regulations for the City’s refusal to reinstate Sanders. The instruction, the Ninth Circuit concluded, prejudiced Sanders because it added a reasonable cause requirement to her burden of proof. Accordingly, the Court ordered a new trial on the FMLA claim.
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The Sanders decision illustrates that, while the right to reinstatement from FMLA leave is not absolute, an employer who denies reinstatement to an employee must be prepared to prove the employee had no such right. Cases like Sanders place a plaintiff in an advantageous position because the employer carries the ultimate burden of proof that the employee was not entitled to reinstatement.
For additional information on this case or other FMLA issues, please contact the Jackson Lewis attorneys listed with this article.
