The burden of proof in interference claims under the Family and Medical Leave Act (FMLA) is one that divides the federal appellate courts. But not enough, it appears, to warrant Supreme Court review. On January 14, 2013, the Supreme Court denied a petition for a writ of certiorari in Thomsen v Stantec, Inc., , 2013 U.S. LEXIS 751 (Jan. 14, 2013), which sought to have the Court consider the issue.
Thomsen was an electrical engineer for Stantec. He was fired in October 2008, allegedly because of a lack of work and for poor performance. His termination, however, came just six weeks after his return from FMLA leave for cancer surgery. Thomsen claimed he was fired because of his FMLA leave, and also alleged violations of the Americans with Disabilities Act (ADA).
The trial court granted the employer’s motion for summary judgment on both the FMLA and ADA claims, invoking a “preponderance of the evidence” standard, finding that Thomsen could not demonstrate that his FMLA rights played a negative role in Stantec’s decision to fire him. Thomsen appealed only the dismissal of his FMLA claims, but fared no better in the Second Circuit where (in an unpublished opinion), the court upheld the trial court’s decision. Thomsen filed petition for certiorari to the Supreme Court, claiming that the Second Circuit incorrectly applied the McDonnell-Douglas framework to his FMLA interference claim.
In his petition, Thomsen focused on Potenza v. New York, 365 F.3d 165 (2d Cir. 2004), where the Second Circuit held that FMLA retaliation claims must be analyzed under the McDonnell- Douglas framework, but (according to Thomsen) “left open the question” of whether an FMLA interference claim also requires a finding of employer intent to discriminate because of the taking of FMLA leave. With a split in the circuits on this issue, Thomsen argued that applying McDonnell-Douglas to an FMLA interference claim “ignor[es] the prevailing standard” among federal appellate courts, and that under the preponderance of the evidence standard, he had raised a question whether Stantec used his FMLA leave as “a negative factor” in terminating him, such that a jury should decide the issue.
Opposing review, Stantec argued that procedurally Thomsen had not raised his “preponderance of the evidence” argument below and that the matter was not preserved for Supreme Court review. Moreover, Stantec noted that the Second Circuit has not specifically announced what standard applies in FMLA interference claims, and therefore has not contributed to the circuit split, making this case an inappropriate vehicle for consideration of the issue. The Supreme Court agreed with Stantec and denied the request to review and decide the issues Thomsen raised.