Friday, March 18, 2011
Court Places Burden on Employers in Family Leave Cases
By KENNETH OFGANG, Staff Writer
An employer who denies reinstatement to an employee returning from a medical leave authorized by the Family and Medical Leave Act has the burden of proving that it had valid reasons for doing so, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Acknowledging a split of authority among the circuits, Judge Richard A. Paez said that placing the burden on the defendant, rather than the plaintiff, in such cases is consistent with congressional intent and with the Department of Labor regulations interpreting the FMLA.
The panel reinstated an action by Diane Sanders, a former utility billing clerk for the City of Newport, Ore. She took a month of FMLA leave in January and February 2006, after her doctor opined that recent health problems were due to her sensitivity to chemical exposure at work, in particular to a lower grade of billing paper that the city had just started using.
Sanders extended the leave due to unrelated problems, but was informed in May 2006 that she could not return because the city could not guarantee that the workplace would be safe in light of her chemical sensitivity. Sanders, however, insisted that she was able to return to work, and presented reports to that effect from her doctors.
In January 2007, the city informed Sanders that she was being terminated because the city could not accommodate her medical restrictions, “given your sensitivity to chemicals and the lack of knowledge as to the chemicals or concentrations that may cause a reaction.”
Sanders sued for violations of the FMLA, the Americans With Disabilities Act, and other state and federal laws. Magistrate Judge Thomas M. Coffin of the District of Oregon tried the legal claims before a jury, severing equitable claims for violation of the Oregon Family Leave Act and for retaliation in violation of state law.
The jury found for the city, but Coffin subsequently found that the plaintiff was terminated in violation of the Oregon act and was entitled to more than $64,000 in back pay, front pay, and other equitable compensation, as well as nearly $60,500 in attorney fees and costs.
Both sides appealed.
The primary issue on appeal was whether Coffin correctly instructed the jury that in order to prevail on her FMLA claim, the plaintiff had to prove that the city failed, “without reasonable cause,” to reinstate her, and whether a related question was correctly stated on the verdict form.
Paez said the instruction and the verdict form were erroneous, and that the error likely affected the verdict.
The act, the judge noted, makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” the substantive rights set forth in the statute, including the right to return to work following the leave. The act is violated, by its terms, when an employee is denied a “right, benefit or position to which the employee would have been entitled had the employee not taken the leave.”
A federal regulation, 29 C.F.R. § 825.214, says that “[o]n return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position,” but that there is no right to an equivalent position if the employee is “unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition.”
The Eight, Tenth, and Eleventh circuits, Paez pointed out, have all held that the burden falls on the employer to prove that the denial of a right, benefit, or position following approved leave was for a valid reason. That interpretation, he said, is consistent with the statutory language, with § 825.214, and with a regulation stating that the “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.”
In a footnote, Paez acknowledged that a divided panel in the Seventh Circuit reached a contrary conclusion, relying on its prior case law rather than on the regulations.
The jurist went on to reject the argument that the error was harmless under the “more probably than not” test. The lack of any instruction defining “reasonable cause,” Paez said, makes it unclear what verdict the jury would have reached had it been told that the burden of proof was on the defendant and asked on the verdict form whether that burden had been carried.
Nor, he said, was there sufficient evidence regarding Sanders’ ability to perform her job—under the conditions existing at the time she asked to return, which included the city’s h aving discontinued its use of the low-grade billing paper—for the court to conclude, as a matter of law, that the defense carried its burden on the issue as a matter of law.
Paez did agree with the city, however, that the award of monetary relief to the plaintiff under state law must be overturned. Because a court deciding equitable issues must defer to a jury’s findings with regard to related issues of fact, the appellate jurist explained, the trial judge will have to reconsider those issues following retrial of the jury issues.
Judges Richard C. Tallman and Milan D. Smith Jr.
The case is Sanders v. City of Newport, 08-35996.
Copyright 2011, Metropolitan News Company