Mixed-motive theory was legislated into Title VII with the 1991 Civil Rights Act. The theory provides that an employee may prevail in a case in which she demonstrates that illegal considerations were “a motivating factor” in the adverse employment decision, even where the employer would have made the same decision absent the illegal considerations.
There is no similar provision under the FMLA (or any other anti-discrimination law for that matter), and the question of when a mixed-motive analysis can be applied elsewhere took on new life following the Supreme Court’s ruling in Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009). Gross held that the Age Discrimination in Employment Act (ADEA) does not permit use of a mixed-motive analysis, but instead requires “but for” evidence to establish intentional age discrimination. Previously, the lack of legislative instruction did not stop courts from applying theories developed under Title VII to other anti-discrimination laws, which is one of the reasons the Gross holding was so surprising.
Two appellate courts have held that mixed-motive analysis can be applied to FMLA claims. Hunter v. Valley View Local Schools, 579 F.3d 688 (6th Cir. 2009); and Richardson v. Monitronics Internat’l, Inc., 434 F.3d 327 (5th Cir. 2005). Hunter came after Gross, and involved a school janitor with an exceptionally bad attendance record, although many of her absences were FMLA protected. When she was released to return to work with significant restrictions on her ability to perform her job, the school district placed her — against her will — on an unpaid medical leave of absence. There was no question that the janitor’s FMLA protected absences played a role in this decision.
Confusion about the application of a mixed motive theory in FMLA cases was palpable in Villalon v.Del Mar College District, 2010 U.S. Dist. LEXIS 82766 (S.D.Tex. 2010), an FMLA retaliation case in which the court took liberties with many aspects of discrimination law analysis in denying summary judgment for the College. Villalon, an administrative assistant to a Vice President, had a change in supervisors. The relationship between Villalon and her new supervisor was quite contentious, which led Villalon to complain to the College president. She then went on FMLA leave due to “anxiety and job stress.” A few days after she returned to work, Villalon got a low performance evaluation. She then told her boss that she expected her doctor to tell her she would need to take six weeks off during the summer. But before she could take the leave she was fired. Villalon brought an ADA and FMLA case, alleging discrimination and retaliation.
Quoting an unpublished Fifth Circuit decision, Crouch v. J.C. Penney Corp., Inc., 337 Fed. Appx. 399, 401 (5th Cir. 2009) (which had affirmed summary judgment for the employer), the court said that “[w]hen a plaintiff alleges mixed-motive retaliation (i.e., that discrimination was not the sole reason for discharge but was a motivating factor),” the court may apply the “mixed-motive” framework. Making no distinction between discrimination and retaliation theories, the court continued that this framework provides:
(1) the employee must make a prima facie case of discrimination; (2) the employer must articulate a legitimate, non-discriminatory reason for the adverse employment action; and (3) the employee must offer sufficient evidence to create a genuine issue of fact either that (a) the employer’s proffered reason is a pretext for discrimination, or — and herein lies the modifying distinction — (b) that the employer’s reason, although true, is but one of the reasons for its conduct, another of which was discrimination. If the employee proves that discrimination was a motivating factor in the employment decision, the burden again shifts to the employer, this time to prove that it would have taken the same action despite the discriminatory animus.
Crouch, 337 Fed. Appx. at 401 (citing Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005)).
Then, the court made the observation that the mixed-motive framework is applicable to FMLA claims, but NOT to ADA claims, noting that the Fifth Circuit has applied the more general McDonnell-Douglas framework without a mixed-motives analysis in ADA retaliation claims. See Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999); see also Grubic v. City of Waco, 262 Fed. Appx. 665, 666-67 & n.6 (5th Cir. 2008) (citing Seaman); Miles-Hickman v. David Powers Homes, Inc., 589 F. Supp. 2d 849, 868 (S.D. Tex. 2009) (“Retaliation claims brought under the ADA are analyzed using the McDonnell Douglas burden-shifting test . . . .”).
As it should have with respect to FMLA retaliation claims. The whole point of a retaliation claim is that “but for” engaging in protected activity, the adverse employment action would not have occurred. But Villalon had no comparator she could point to that would support such a claim. Instead, she relied on her assertion that she had been subjected to a parade of horribles at the College. She continued to be victimized, discriminated against, and retaliated against by the College and her supervisor. Her evidence? After Villalon returned from FMLA leave, her supervisor “threatened her employment and provided her with a low Performance Appraisal,” and when she told her supervisor during the evaluation discussion that she would need additional FMLA leave in the summer, her supervisor was “visibly annoyed and was again rude,” stating “who is going to cover for you in the office?,” “what am I going to do while you are gone?” and “you have already been out a couple of weeks.” Then the supervisor made notes regarding Villalon’s late arrivals at work, which she claimed were covered under the FMLA.”
On these facts the court denied the College’s motion for summary judgment, because the Fifth Circuit has held that a supervisor’s negative reactions to the use of FMLA leave may be sufficient in certain circumstances to establish causation. See, e.g., McArdle v. Dell Products, L.P., 293 Fed. Appx. 331, 338 (5th Cir. 2008) (finding that allegations created an inference of causation where there was “evidence that [Plaintiff’s] supervisor was ‘frustrated’ with his absences and expressed concern about his attendance.”).
There are some lessons to be learned here. First, the patchwork nature of employment discrimination laws means that attempts to apply the theories created under one law to other laws is fraught with risk. Yet, courts continue to do so because it seems appropriate (regardless of what Congress actually has said) to create a unified application of employment law theories. Second, employers should not create problems for themselves by providing more reasons for an employment decision than the best (and legal) reason. In making employment decisions, it is essential that an employee’s use of FMLA protected leave play no role whatsoever in decisions about her employment. Third, supervisors and managers need to be trained in what to say and what not to say in dealing with problem employees.
Finally, the court’s suggestion that the mixed-motive analysis can apply in retaliation claims is not limited to this case. In Wisbey v. City of Lincoln, 612 F.3d 667, 676 (8th Cir. 2010), the court noted that “[t]he kind of causal connection required for a prima facie [retaliation] case is not “but for” causation, but rather a showing that an employer’s “‘retaliatory motive played a part in the adverse employment action.’” Kipp v. Missouri Highway and Transp. Comm’n, 280 F.3d 893, 897 (8th Cir. 2002) (quoting Sumner v. United States Postal Serv., 899 F.2d 203, 208-09 (2d Cir. 1990)).