Burlington Definition of Retaliation Appropriate Under the FMLA

The Second Circuit has joined five other Circuits in holding that the correct definition of a “materially adverse employment action” in FMLA retaliation cases is the one used by Supreme Court in its 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White.  The Burlington definition includes employer actions that are likely to dissuade reasonable workers from exercising their rights under anti-discrimination laws.  Millea v. Metro-North Railroad Co., 2011 U.S. App. LEXIS 16354 (2d Cir. August 8, 2011).  The other courts that have adopted this standard in FMLA cases are Breneisen v. Motorola, Inc., 512 F.3d 972, 979 (7th Cir. 2008);; Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 n.2 (10th Cir. 2006; McArdle v. Dell Prods., L.P., 293 F. App’x 331, 337 (5th Cir. 2008) (unpublished opinion) (per curiam); DiCampli v. Korman Cmtys., 257 F. App’x 497, 500-01 (3d Cir. 2007) (unpublished opinion); and Csicsmann v. Sallada, 211 F. App’x 163, 167-68 (4th Cir. 2006) (unpublished opinion) (per curiam).