Employer’s Independent Review Sinks FMLA Retaliation Claim

Darrell VanDeusen
Darrell VanDeusen

Employers are sometimes skittish about taking an adverse employment action for legitimate reasons against an employee who has exercised their protected rights, fearing the almost inevitable claim of retaliation.  Indeed, it seems nearly every EEOC charge I get alleges retaliation even when the facts demonstrate it wasn’t remotely possible. 

That, of course, is not the way things are supposed to work.  An employee does not insulate themselves from legitimate discipline simply by exercising their rights.  The employee must prove a causal connection exists between the protected activity and the adverse employment action.

A recent decision from the Tenth Circuit provides good guidance on how an employer can create a process that – if properly followed – will go a long way to minimize exposure to liability for alleged retaliation.  Parker v. United Airlines, No. 21-4093 (10th Cir. Sept.26, 2022).

Jeannie Parker took intermittent FMLA leave because she had a vision disorder and her father had cancer.  She was never denied FMLA leave and used all the leave she wanted and needed.

Ms. Parker handled calls for United booking flight reservations. We can save the stories of personal frustration with call center folks for another day, but let’s just say that the way the court’s decision reads, you definitely did not want Ms. Parker to answer your call.  

It was discovered that she was “avoiding new calls by telling customers that she would get additional information, putting the customers on hold, and chatting with coworkers about personal matters while the customers waited.”  There were numerous examples of her “call avoidance.”  This behavior led to a recommendation by Ms. Parker’s supervisor that she be terminated. 

Under United’s process, however, an employee can challenge the recommendation to a higher  level manager and, if the employee is dissatisfied with that manager’s conclusion, move the challenge to an even higher level manager.  The employee can have a union representative assist them (here, her union rep said there was no excuse for Ms. Parker’s behavior, but that she was under a lot of stress and could it be less discipline than termination).  True, this sounds like a traditional grievance procedure (and it is), but non-unionized employers can implement a similar process.

Ms. Parker took advantage of the ability to challenge her supervisor’s recommendation at both steps.  Both levels of upper management upheld the termination recommendation.  Ms. Parker then sued, claiming FMLA retaliation.  The district court granted United’s motion for summary judgment and the Tenth Circuit affirmed.

The appellate court noted that Ms. Parker made out a prima facie case of retaliation, but that United broke the causal chain “by directing other managers to independently investigate and decide whether to adopt the supervisor’s recommendation.”  In so doing, the employer established the legitimate, non-retaliatory basis for its decision.

The court rejected Ms. Parker’s effort to rely on the “cat’s paw theory” of liability.  If you are unfamiliar with the phase, it was first used in a decision written by Judge Posner in Shager v. Upjohn Co., 913 F. 2d 398, 405 (7th Cir. 1990).

Here’s some useless but important information.  “The Monkey and the Cat” or “Le Singe et le Chat” by Jean de la Fontaine (1679) was inspired by an Aesop’s fable.  The story goes that a cat burns its paws after being lured into getting chestnuts from an open fire by a beguiling monkey.  The moral of the story is that the unharmed monkey ends up getting the chestnuts, while the cat ends up with burnt paws to go along with no chestnuts for executing the monkey’s plan (a very naughty monkey).

In the context of employer liability, a plaintiff can use the cat’s paw theory to prove discrimination against the employer even though there is no evidence that the decisionmaker (the cat) harbored any discriminatory animus toward the plaintiff.  It is sufficient to prove liability if the adverse employment action was influenced by another employee’s (the monkey’s) bias toward the plaintiff, even if that person was not the ultimate decisionmaker. 

The Supreme Court recognized the cat’s paw theory in Staub v. Proctor Hospital, 562 U.S. 411 (2011).  Here, however, the Tenth Circuit held that the theory cannot apply when independent decisionmakers “conduct their own investigations without relying on biased subordinates.”  

The takeaway?  Employers can and should appropriately address legitimate concerns regarding employee performance, and then take action that is not retaliatory.  When other employees see that action is not taken against an employee who is derelict in their duties, it won’t be long until those “delusions of adequacy” expand throughout the work force.  Or – to keep with the cat analogy – it will be like putting down a bowl of milk for a stray; pretty soon you’ll have all the strays in the neighborhood at your door.  And even I, who likes cats, don’t need that many around.

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