Monday, June 9, 2008

5th Circuit Rejects FMLA Association Claim

ScalesVia Ross Runkel's Employment Law Memo, the Fifth Circuit issued a decision rejecting the retaliation claim brought by a police sergeant who alleged he was not promoted because his wife had brought an FMLA claim against their employer. Lawrence and Wendelle Elsensohn were employed by the St. Tammany Parish's sheriff's office in the same department. Wendelle brought an FMLA claim against the office, left the office, and then settled the claim. Lawrence would have been called to testify had the claim gone to trial.

Lawrence's complaint made the following allegations, which the court took as true for purposes of the motion to dismiss. A few months after Wendelle settled her claim, the Parish's jail warden harassed Lawrence in retaliation for Wendelle's lawsuit. Lawrence reported this to Internal Affairs and was assured that he would not be bothered further. Lawrence received excellent job reviews during this time, and reasonably expected to be promoted. However, after he applied for several promotions, for which he was the most qualified applicant,
and was denied them,

Elsensohn spoke to his supervisor, Deputy Warden Captain Greg Longino, who informed Elsensohn that he would not receive a promotion of any kind. During a subsequent meeting with Sheriff Strain and Warden Peachey, Elsensohn asked what he needed to do to put himself in a better position for a promotion. In response, he was told “nothing,” and further discussions were “closed off.”

Shortly after the meeting, Elsensohn was involuntarily placed on a less favorable night shift. As a result, Elsensohn lost his holiday and overtime pay, his ability to work details was reduced, and he was unable to seek secondary and supplemental employment.

Elsensohn filed his claim under the FMLA's retaliation provisions. The FMLA protects employees from retaliation for opposing any unlawful practice or for participating in proceedings under the FMLA. Elsensohn cited to the opposition clause in his claim, but did not argue that he was penalized for opposing the discrimination against his wife. In fact, he said that he did not oppose the office's actions and instead tried to stay out of the matter. Elsensohn based his claim on the fact that he would have been called to testify in the proceedings brought by his wife. The court rejected this because the retaliation occurred after the wife's case settled. Thus, Elsensohn had neither testified, nor was he about to testify at the time of the retaliation. Finally, the court declined to recognize a derivative claim under the FMLA. In other words, a person cannot state a claim under the FMLA if the person's employer imposes an adverse employment action on the person in retaliation for the spouse's protected activity. In a prior case under the ADEA, the court had

recognized that its refusal to expand [the retaliation provision] might expose employees’ relatives and friends to retaliation for complaining employees’ actions, but it refused to fashion a new rule creating standing for employees who did not participate in any manner whatsoever in a co-worker’s charge of discrimination.

In light of [that case] and our concern about setting aside the plain meaning of
a statute, we decline to provide an interpretation of [the FMLA's retaliation provision] divorced from its literal meaning. . . .“It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain . . . the sole function of the courts is to enforce it according to its terms.” . . . .

While [the ADEA case] is not binding, the protections afforded under the ADEA are actually
greater than the protections afforded under the FMLAbecause § 623(d) protects an individual who participates in an investigation, proceeding or litigation in any manner, whereas § 2615(b) is limited to specific enumerated activities. We, therefore, see no basis in the statute for providing more protection to the relatives and friends of FMLA complainants than the protections offered to the relatives and friends of ADEA claimants.

This narrrow interpretation of the FMLA seems particularly misplaced since the FMLA, more than other employment discrimination statutes, recognizes the practical realities of family relationships. Recognizing associational claims would seem particularly appropriate in this context.


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