'But For' Standard Applied to FMLA Retaliation

By Vanessa B. Chambers Feb 19, 2016
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A juvenile detention officer who alleged she was fired for taking leave and complaining of alleged sexual advances by a 12-year-old female inmate can pursue her Family and Medical Leave Act (FMLA) retaliation claim, the 5th U.S. Circuit Court of Appeals ruled.

In 2000, Lillie Wheat started working for Florida Parishes Juvenile Justice Commission at its juvenile detention center in Louisiana. Wheat received several promotions during her employment, including in 2008 when she became assistant director of female services. She consistently received positive performance reviews and raises.

In 2005, as a juvenile detention staff officer, Wheat used excessive force against a juvenile inmate. The commission initially recommended a three-day suspension and six-month probation. Given Wheat’s positive record, however, the commission reduced her discipline to a written reprimand and additional training.

In 2009, Wheat took FMLA leave. When she did not return to work after her leave, the commission terminated her employment. Wheat sued the commission under the FMLA. The parties settled the lawsuit and in March 2011, the commission reinstated Wheat. Her former assistant director position was not available so the commission placed her in an officer role with the same pay she received as assistant director. 

After Wheat returned, she was offered two supervisory positions but declined both because she did not want to lose overtime opportunities or take on more responsibility. 

In November 2011, Wheat filed an internal report alleging a 12-year-old female inmate made sexual advances toward her. 

In early January 2012, Wheat applied a pressure-point hold on an inmate and ignored a supervisor’s directive to stop. The supervisor restrained Wheat. Wheat then followed the inmate to her cell, assaulted her and threatened to “whip that bitch’s ass.” The commission placed Wheat on unpaid leave and terminated her employment later that month.

Wheat sued the commission, alleging her employment was terminated because she exercised her rights under the FMLA. The district court ruled in the commission’s favor and dismissed all of Wheat’s claims on summary judgment. 

On appeal, the 5th Circuit recognized a 2013 United States Supreme Court holding that in order to establish the causal link element (i.e., connection between a protected activity and adverse employment action) of retaliation under Title VII of the 1964 Civil Rights Act, the employee must provide substantial evidence that “but for” exercising protected rights, the employee would not have been subjected to an adverse employment action, such as termination. Though the high court has never decided whether the “but for” standard applies to the FMLA, the 5th Circuit applied it in this case.

The court found a genuine issue of material fact as to whether Wheat’s discharge would have occurred “but for” her exercising her FMLA-protected rights. In so finding, the court relied on inconsistencies in discipline among officers and also between the discipline that resulted from Wheat’s 2005 use of excessive force and her 2012 use of excessive force, which occurred after exercising her rights.

Wheat v. Fla. Parish Juvenile Justice Comm'n, 5th Cir., No. 14-30788 (Jan. 5, 2016).

Professional Pointer: Employers should be consistent in disciplining employees who have engaged in similar conduct. If discipline appears to be inconsistent, employers should be able to explain the basis for the differences. 

Vanessa B. Chambers is an attorney with Winterbauer & Diamond PLLC, the Worklaw® Network member firm in Seattle.

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