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The Sixth Circuit Has Recognized Two Distinct Theories for Recovery Under the Family and Medical Leave Act (“FMLA”): An FMLA Entitlement or Interference Theory and an FMLA Discrimination or Retaliation Theory

by | Dec 27, 2021 | FMLA

The Sixth Circuit Court of Appeals has recognized “two distinct theories for recovery under the FMLA: (1) the ‘entitlement’ or ‘interference’ theory arising from 29 U.S.C. § 2615(a) (1); and (2) the ‘retaliation’ or ‘discrimination’ theory arising from 29 U.S.C. § 2615(a)(2).” An employee seeking to bring a claim under the interference theory must prove that: (1) the employee was an eligible employee, (2) the employer is defined as an employer under the FMLA, (3) the employee was entitled to leave under the FMLA, (4) the employee gave the employer notice of his or her intent to take leave, and (5) the employer denied the employee FMLA benefits or interfered with FMLA rights to which the employee was entitled.

The other theory for recovery is a claim of discrimination or retaliation. In order to pursue such a claim, an employee must show that: (1) he or she was engaged in a statutorily protected activity; (2) the employer knew he or she was exercising her FMLA rights; (3) the employee suffered an adverse employment action; and (4) a causal connection existed between the protected FMLA activity and the adverse employment action, according to the Sixth Circuit.

The Sixth Circuit held that “The burden of proof at the prima facie stage is minimal; all the plaintiff must do is put forth some credible evidence that enables the court to deduce that there is a causal connection between the retaliatory action and the protected activity.”

Courts use the McDonnell Douglas burden-shifting analysis to evaluate FMLA discrimination and FMLA retaliation claims, stated the Sixth Circuit. If a Plaintiff demonstrates the prima facie elements of an FMLA retaliation claim, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for discharging plaintiff, the Sixth Circuit held. If the employer can set forth such reason(s), “the burden shifts back to the plaintiff to show that the defendant’s proffered reason is a pretext for unlawful discrimination”, the Sixth Circuit held. Pretext means that the employer’s reason was a cover up for discrimination or retaliation. The Sixth Circuit has held that unlike FMLA interference claims, the employer’s motive is an important part of analyzing an FMLA claim under an FMLA retaliation theory.

To determine if you have a claim for FMLA entitlement, FMLA interference,  FMLA discrimination or FMLA retaliation, call Dale Bernard at 440-546-7500.