Chase v. United States Postal Service et al

Filing 131

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered providing FINDINGS OF FACT AND CONCLUSIONS OF LAW on the basis of which, together with the November 13, 2013 MEMORANDUM AND ORDER, the clerk is directed to enter judgment for the defendants. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ROBERT CHASE

)
)
Plaintiff,
)
)
)
)
v.
)
)
UNITED STATES POSTAL SERVICE, )
and MICHAEL KING,
)
)
Defendants.
)

CIVIL ACTION NO.
12-11182-DPW

MEMORANDUM AND ORDER
March 1, 2016
Plaintiff Robert Chase brought this action against his
former employer, the United States Postal Service (AUSPS@), and
his direct supervisor, Michael King, alleging violations of his
rights arising from the termination of his employment by USPS.
By Memorandum and Order dated November 4, 2013, I granted
summary judgment for the defendants on all but one count of the
Complaint, which alleges that the defendants unlawfully
terminated Mr. Chase in retaliation for taking leave protected
under the Family and Medical Leave Act (AFMLA@), 29 U.S.C. ' 2611
et seq.

See Chase v. United States Postal Service, 2013 WL

5948373 (D. Mass. Nov. 4, 2013).

After a non-jury trial on the

remaining count, pursuant to Fed. R. Civ. P. 52, I provide — on
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the basis of evidence recited in Section I.A. — the findings of
fact in Section I.B., where I make credibility determinations
and otherwise resolve factual disputes as necessary.

In Section

II, I provide Conclusions of Law in support of my determination
to order judgment for the defendants.
I. FACTS
A.

Evidence at Trial
Robert Chase worked for the USPS as a letter carrier from

1997 until his termination on September 30, 2011.

At all times

during the course of his employment with the USPS, Chase=s work
performance was satisfactory or better.

He was punctual,

reliable and attentive to his job, and he was never given a
negative performance review or subject to any discipline or
corrective action.
From February 2005 until the time of his termination, Chase
was supervised by the defendant Michael King, who served as
manager of the Brookline, Massachusetts Post Office where Chase
worked.

Although perturbed by Chase’s leave taking, King did

not have any issues with Chase=s performance as a letter carrier,
and never had occasion to discipline Chase prior to the events
that gave rise to this lawsuit.

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1.

Chase=s Injury

On July 21, 2010, Chase was involved in a serious motor
vehicle accident while on duty.

Chase was parked on the side of

the road during his lunch break when a car driven by an elderly
woman who had fallen asleep at the wheel struck his vehicle.
King responded to the scene and observed the severity of the
accident.

Chase was transported to the hospital and was

subsequently diagnosed with a shoulder injury that included
damage to his rotator cuff.

King wrote in an accident report he

submitted to the Boston District Safety Office: ACarrier
initially claimed to be ok.

Now claims injury to shoulder.@

Chase was unable to return to work following the accident.
Anticipating that Chase would submit a workers= compensation
claim, King pressured Joseph DeMambro, the Brookline Post
Office=s union steward for the National Association of Letter
Carriers, to encourage Chase not to file such a claim so that
the injury would not be reflected in the injury statistics for
the Brookline Branch.

Such statistics may have had some impact

on perception of King=s performance as a manager.
King felt comfortable making such a request because he
believed Chase would be able to make a recovery from the driver
who had caused the accident, and therefore would not be left

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without recourse.

Chase nevertheless filed a workers=

compensation claim, which was approved.

In accordance with USPS

policy, Chase was paid his full salary by the USPS for the first
45 days of his injury leave, after which he received workers’
compensation benefits amounting to two-thirds of his salary,
tax-free, plus health insurance, paid by the U.S. Department of
Labor=s Office of Workers= Compensation programs.
Chase also applied for leave under the FMLA, to run
concurrently with his workers= compensation leave.

FMLA leave at

the USPS is unpaid unless the employee is otherwise entitled to
pay, for example because he or she is using accrued sick leave
or receiving workers= compensation benefits.

Chase received a

notice approving his request for FMLA leave retroactive to July
21, 2010, the date of his injury, and informing him that FMLA
protection was limited to 12 weeks in each calendar year.
Because Chase never returned to work, this meant that Chase=s
2010 FMLA leave was exhausted as of October 12, 2010.
At the USPS, FMLA leave requests are processed through a
central office located in North Carolina.

The FMLA approval

notice indicates that it was copied to Chase=s Amanager@ and
Asupervisor.@

King testified that he did not recall ever seeing

the notice and was unaware Chase had bee on FMLA leave until the

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commencement of this litigation.

King testified that he could

not recall whether he had received similar notices in the past
in connection with other employees= FMLA leave requests.
According to King, Chase=s leave status was designated as either
AIOD@ (injured on duty) or AOWCP@ (out on worker’s compensation)
in the computer program used to track employee time records,
which indicated to him that Chase was out on paid workers=
compensation leave.

King acknowledged that a related computer

program would have indicated Chase=s FMLA leave status, but said
that he never checked that program because he had no reason to
believe Chase was using unpaid FMLA leave at the same time he
was on paid workers= compensation leave.

King could not recall

another instance of an employee taking FMLA leave for an on-thejob injury that was otherwise covered by workers= compensation,
and believed that in practice, employees would use FMLA leave
only as a last resort, for example, when they had exhausted all
their paid sick leave or had to care for an ill family member.
As a result of Chase=s injury leave, the Brookline branch
had to hire a temporary replacement letter carrier to cover his
route.
2.

Chase=s Arrest

On September 18, 2010, while Chase was still on injured

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leave, he and his brother Michael, who was also a Brookline
letter carrier, were arrested at Michael=s apartment in
Brookline.

The arrest occurred when police officers

investigating an earlier report of domestic violence between
Michael and his girlfriend visited Michael=s apartment and
observed in plain view a baggie containing what they believed to
be cocaine.

According to the police report, Chase, who was

visiting Michael=s apartment, grabbed the baggie off the table,
and when ordered by police to drop it, indicated that it
belonged to Michael.

Upon executing a search warrant for

Michael=s apartment, police discovered more drugs and evidence of
drug dealing.

Chase was charged with possession of cocaine with

intent to distribute, in violation of Mass. Gen. Laws ch. 94C, '
32A(a), and conspiracy to violate the drug laws, in violation of
Mass. Gen. Laws ch. 94C, ' 40.

Michael was charged separately.

A few days later, King learned from employees at the
Brookline Post Office that Chase and his brother had been
arrested on drug charges.

Someone also left a copy of a

Brookline Tab article reporting the arrest in King=s office.

The

original article did not identify the Chase brothers as
Brookline letter carriers, but the Brookline Tab later received
an anonymous tip that the brothers were letter carriers, which

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it confirmed with USPS Media Relations.

The article was then

updated online to reflect that the brothers were Brookline
letter carriers.

King testified that after the updated version

of the article was published, he received a call from a customer
asking whether her mail was safe.
King contacted Jeffrey Powers of the USPS Office of the
Inspector General (AOIG@) to request that he obtain a copy of the
Chase brothers= arrest report.1

King also forwarded the original

Brookline Tab article to Lori Bullen, his supervisor at the
time, and stated A[i]t would be nice if we can proceed with
something.@

Bullen forwarded King=s email to Connie Marvin in

Labor Relations, informing her that not only was Chase arrested,
but that he was Aout OWCP [on worker=s compensation] to boot,@ and
that she would Alike to see if we can=t get removals for this.@
At about this time, William Downes replaced Lori Bullen as
King=s supervisor.

In response to an inquiry from Downes

regarding the Chase brothers= duty status, King stated AMichael
is on an off-duty.

Bobby [Chase] is out IOD [Injured On-Duty]

and the OIG is looking into his status.@

1

Powers was King=s contact in the OIG. At trial, Powers
described his relationship with King as that of Aprofessional
friends@ who knew each other from time spent together as
supervisors in the Postal Service.
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King testified that after reading the arrest report and the
Brookline Tab article, he was concerned about the seriousness of
the crimes with which the Chase brothers were charged and the
resulting negative publicity to the Brookline Post Office.

He

decided to place Michael Chase on emergency off-duty status, but
took no similar action with respect to Robert Chase because
Chase was on injured leave and therefore was already off-duty.
King testified that if Chase had not been on injured leave, he
would have placed him on emergency off-duty status as well.
Because Chase was never placed on emergency off-duty status,
however, he was permitted to enter the Brookline Post Office
while Michael was not.
3.

Post-Arrest, Pre-Termination Period

In the weeks and months following Chase=s arrest, King
periodically inquired of Jeff Powers regarding the status of the
Chase brothers= criminal cases, which he learned were repeatedly
continued.

At the same time, King was in somewhat regular

contact with Chase regarding both his arrest and the status of
his injury.

Shortly after the arrest, Chase met with King to

discuss what happened.

Chase told King that he was not a drug

user or dealer and that the charges against him were groundless
and would be dismissed.

By Chase=s account, he was simply Ain

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the wrong place at the wrong time.@

Chase perceived that King

accepted his version of events and was satisfied that Chase was
not a drug user or dealer and that the charges would be
dismissed.
Chase testified that in conversations that followed, King
expressed concern not with Chase=s arrest or criminal case, but
with his extended injury leave.

Chase testified that King

exerted pressure on him to get medically cleared to return to
work, telling Chase he was Afour guys down@ and was Agetting
killed by injuries.@

Chase alleged that during one such

conversation, King threatened to Asic Jeff Powers@ of the OIG on
him if he did not get himself medically cleared to return to
work, suggesting that Chase was exaggerating the extent of his
injury and thereby committing fraud.

Chase and King stopped

communicating after a December 2010 phone call in which King
told Chase to Ago fuck yourself@ when Chase requested his help
with an issue related to his medical leave.

The issue was that

Chase=s physical therapist had denied him services because he was
not being paid by the Postal Service in a timely fashion.
Before approaching King with the issue, Chase had sought the
assistance of a USPS Human Resources representative to no avail.

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4.

Termination

By January of 2011, King still had not taken any
disciplinary action with respect to either Chase or his brother
stemming from their September 18, 2010 arrests.

In a January

12, 2011 email to King, Andrew Cullen of USPS Labor Relations
expressed incredulity that no action had been taken in the
nearly four months since the arrest of the Chase brothers.
Although Chase remained on injured leave at that time, Michael
was being kept on emergency off-duty status.

Cullen did not

recommend that any particular discipline be imposed, but simply
indicated to King that he needed to move forward with the Chase
brothers= cases in order that any discipline he might impose
would be considered “prompt” under the terms of the applicable
collective bargaining agreement, which provided that
A[d]isciplinary actions should be taken as promptly as possible
after the offense has been committed.@
As a consequence, by letter dated January 13, 2011, King
asked Chase to participate in a Pre-Disciplinary Interview
(APDI@) scheduled for January 18, 2011 Ain regard to your arrest
concerning drug related activities.@

The purpose of a PDI, which

is the first step in the formal disciplinary process, is to

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determine the facts concerning a particular incident.

It is

sometimes referred to by the USPS as an employee=s Aday in court.@
Chase=s PDI occurred over the telephone, with King, Chase
and DeMambro participating.

King asked several questions of Mr.

Chase regarding the circumstances surrounding his arrest.

Chase

declined to answer any questions, citing the advice of his
criminal defense counsel.

King was not pleased, and told Chase

something to the effect of Ayou=re really not helping yourself by
responding this way.@
Purportedly based on Chase=s failure to answer any questions
at his PDI, King concluded that his Ahands were tied@ and that he
had no choice but to initiate Chase=s removal from the Postal
Service even though his criminal case had not yet been resolved
and Chase had previously professed his innocence to King.

At

trial before me, King testified that it did not matter that
Chase had not yet been convicted of anything, because the fact
of his arrest, coupled with the fact that he refused to admit
any wrongdoing, was sufficient in his view to justify Chase=s
removal.

King asked his new supervisor, William Downes, for

approval to remove Chase for unacceptable conduct.

Downes gave

his approval on January 27, 2011, and on January 28, 2011, King

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asked Labor Relations to prepare a notice of removal for AFailure
to Perform Duties in a Satisfactory Manner.@
The removal notice, which was dated February 1, 2011 and
signed by King, informed Chase that he was being removed for
AFailure to Perform Your Duties in a Satisfactory Manner,@
specifically citing Chase=s arrest and refusal to answer
questions during his PDI.

The notice stated, A[y]our actions in

this matter are considered to be very serious,@ and cited two
specific policies in the USPS Employee Labor Relations Manual
(AELM@): Section 665.25 (Illegal Drug Sale, Use, or Possession))
and Section 665.16 (Behavior and Personal Habits).2

The notice

2

As reproduced in the notice of removal, those sections provided
as follows:
665.25 Illegal Drug Sale, Use, or Possession: The Postal
Service will not tolerate the sale, possession or use of
illegal drugs, or the abuse of legal drugs while on duty or
on postal premises. Employees found to be engaged in these
activities are subject to discipline, including removal
and/or criminal prosecution where appropriate.
665.16 Behavior and Personal Habits: Employees are expected
to conduct themselves during and outside of working hours
in a manner that reflects favorably upon the Postal
Service. Although it is not the policy of the Postal
Service to interfere with the private lives of employees,
it does require that postal employees be honest, reliable,
trustworthy, courteous, and of good character and
reputation. The Federal Standards of Ethical Conduct
referenced in 662.1 also contain regulations governing the
off-duty behavior of postal employees. Employees must not
engage in criminal, dishonest, notoriously disgraceful,
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explained that Mr. Chase would be removed on March 3, 2011, or
later if his union filed a grievance on his behalf.
Through his union, Chase unsuccessfully grieved his
termination.

During the grievance process, Chase=s union

informed him that it had brokered a deal with USPS Labor
Relations whereby Chase could accept a 14-day suspension in lieu
of removal if his brother Michael C who was also in the process
of grieving a removal C were to resign.

Chase declined to

pressure his brother to resign in order to save his own job and
accordingly rejected the offer.

There is no evidence that Mr.

King had any involvement in making this offer.
During the pendency of the grievance process but prior to
final arbitration, Chase=s criminal case reached a favorable

immoral, or other conduct prejudicial to the Postal
Service.
Notably omitted from the notice of removal was the remainder of
Section 665.16, which states:
Conviction for a violation of any criminal statute may be
grounds for disciplinary action against an employee,
including removal of the employee, in addition to any other
penalty imposed pursuant to statute. Employees are
expected to maintain harmonious working relationships and
not to do anything that would contribute to an unpleasant
working environment.
ELM Section 665.16 (emphasis added).
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resolution.

On August 31, 2011, the conspiracy charge was

dismissed outright, and the charge of possession with intent to
distribute was reduced to a charge of simple possession, to be
dismissed upon Chase=s successful completion of one year of pretrial probation, including random drug testing.3
Chase presented evidence of this favorable disposition at a
final arbitration hearing on September 16, 2011, but otherwise
offered no other evidence concerning his guilt or innocence.
Chase testified at trial that during the arbitration hearing,
which was not recorded or transcribed, USPS Labor Relations=
representative Michael DeMatteo made a statement along the lines
of: ADon=t let Mr. Chase fool you; he has been living a great,
tax free life while the rest of us have to come to work.
all he knows, all his paperwork is fraudulent.@

For

DeMatteo denied

making this exact statement, but testified at trial that any
statement he made in this regard was aimed at correcting a
misrepresentation Chase had made with respect to his income
during his injury leave.

On September 30, 2011, the arbitrator

issued a written decision affirming Chase=s removal on the
grounds that USPS had shown by clear and convincing evidence

3

The possession charge was ultimately dismissed following
Chase=s successful completion of the pre-trial probation.
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that Chase had possessed a Class B illegal drug, which violated
a reasonable and equitably enforced USPS policy.

After

receiving the arbitrator=s decision, DeMatteo forwarded it to
Jeff Powers and Kevin O=Leary of OIG, along with the comment:
“this is the employee who is out on comp.”

It is unclear why

O=Leary would have had any interest in the outcome of Chase=s
case, unless as King=s October 4, 2010 email suggests, OIG was
also investigating a claim of injury fraud involving Chase.4
5.

Evidence that Chase Received Disparate Treatment

Chase offered substantial evidence at trial that tended to
show that King and the USPS treated Chase more severely than
other similarly situated employees.
The first such comparator was Brookline letter carrier
James Ferretti.

In August 2006, Ferretti was arrested for drug-

related charges while on duty.

Police found cocaine, syringes,

and other drug-related items on Ferretti, along with mail that
he was supposed to be delivering at the time.

4

When he was

Jeff Powers testified that, although he could not recall, it
was Apossible@ that King asked him to investigate Chase for
injury fraud, and if he had, Powers likely would have forwarded
the complaint to Kevin O=Leary or another agent in OIG=s workers=
compensation unit. King denies ever asking OIG to investigate
Chase for injury fraud and there is no evidence of such an
investigation.
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arrested, he had fresh needle marks on his arms and scarring
consistent with drug use.

The circumstances of his arrest were

publicized in detail in the Brookline Tab, including the fact
that he was a Brookline letter carrier.
Nevertheless, instead of removing him, King determined that
Ferretti, who was a known drug abuser with a past disciplinary
record, would be a Aperfect candidate for a last chance
agreement.@

King testified that he made this decision because

Ferretti Afell on his sword@ at his PDI and admitted that he was
a drug user who had a problem and needed help.5

Ferretti was

thus allowed to keep his job despite being a known drug user
arrested while actively using drugs on-duty.6
Two other Brookline letter carriers under King=s
supervision, William Maroney and Christine Bailey, were caught
by police using drugs in a parked car while Bailey was on duty.
Both Maroney and Bailey had past disciplinary records.
Nevertheless, because, according to King, they were issued
summonses but not arrested, and succeeded in using a contact at
the Boston Police Department to get the charges dropped before a

5

Joseph DeMambro contradicted this testimony to a degree,
testifying that King informed him of his decision to give
Ferretti a last a chance agreement prior to conducting the PDI.
6 Ferretti was eventually terminated two years later, when his
continued drug use caused significant job performance issues.
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criminal complaint was filed, King felt that he did not have
enough evidence to pursue discipline of any kind.
For his part, William Downes also approved discipline for a
postal employee, Richard Varriale, who, although concededly not
under King=s supervision, was arrested while on-duty for drug
possession in April 2011, after having purchased prescription
narcotics from another postal employee.

In lieu of removal, the

Postal Service offered Varriale the option to retire, thereby
preserving his pension rights.
The evidence also showed that King himself had been
disciplined short of termination.

In 2007, King submitted

records to his then-supervisor, Lori Bullen, indicating that
certain employees had attended a safety talk when they had not
in fact done so.

After inquiring of King regarding the

inaccuracies, Bullen deemed King=s account of the matter Anot
credible@ and issued him a Aletter of warning in lieu of 14-day
time off suspension.@

Then, in 2011, King=s new supervisor,

William Downes, issued King another letter of warning in lieu of
a 14-day time off suspension for failure to deliver mail in a
timely manner.
6.

Both infractions were considered serious.

Evidence Regarding Labor Relations Influence

The defendants offered evidence at trial suggesting that

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the impetus behind King=s decision to initiate the removal when
he did, four months after the arrest but prior to any resolution
of the criminal case, was due largely to pressure from Andrew
Cullen and Labor Relations to issue any discipline Apromptly@ as
required under the collective bargaining agreement.

Other

evidence adduced at trial, however, suggested that this
Apromptness@ requirement is not uniformly adhered to,
particularly where the conduct at issue is the subject of an
ongoing criminal proceeding.

In one instance, for example, a

postal employee within William Downes= region, Kevin Moore, was
not issued a notice of removal until over two and a half years
following his arrest for child pornography, and over five months
after his conviction and incarceration on that charge.
7.

Evidence of King=s Attitude Toward Injury Leave

Substantial evidence was adduced at trial regarding King=s
attitude toward Chase and other employees who in his view took
unnecessary injury leave or otherwise abused the system.
According to the testimony of Joseph DeMambro, a repeated
source of conflict in the Brookline Post Office was King=s
predisposition to believe that employees who were injured on the
job or required medical leave were faking their conditions and
were liars.

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In September 2006, Chase injured his knee on the job and
missed approximately one week of work as a result.

DeMambro

testified that sometime after Chase returned to work, in
November 2006, King announced over the public address system in
the Brookline Post Office: AWill Bob Chase, the injury fraud
specialist, please report to the office.@

Then, in August 2010,

following Chase=s motor vehicle accident, King posted a job
opening on the office bulletin board for an Ainjury compensation
specialist,@ and made an announcement over the public address
system directed at Chase that Athere=s a job posted on the
bulletin board for any injury compensation specialist since
you=re the biggest fraud when it comes to injuries.@

On a third

occasion, King reportedly asked DeMambro if Chase was advising a
co-worker who had been injured on the job regarding how to
submit an injury claim, expressing his belief that Chase was the
Abiggest fraud when it comes to workers= comp.@
Another employee of the Brookline Post Office, Maria
Constantino, testified that she heard King say Chase was faking
the injury he had sustained in the car accident.

On multiple

other occasions, Constantino heard King announce over the public
address system ACan I have the carrier on Route 92 [i.e., Chase]
who is faking an injury come to the office, please?@

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According

to Constantino, King=s animus was not reserved only for Chase;
King had accused other employees of faking their injuries in the
past and had at least one such employee surveilled on her route.
According to Constantino, King would frequently withhold sick
pay from employees, forcing them to re-designate a sick day as a
vacation day or file a grievance through the union in order to
get paid.

Another employee, Wanda Jackson, testified that King

held a preconceived notion that employees were faking their
injuries, and often withheld pay on this basis.
That King has a less than sympathetic view of medical leave
is suggested by his testimony about his own leave history.

In

his thirty-three years working for the USPS, with much of that
time spent as a letter carrier, King has never been injured on
the job and has never taken FMLA leave for any reason.

He

testified that he believes it would set a poor example for
someone in a management role like himself to be absent from
work.

As a general matter he does not take much sick leave, and

in fact has not taken a single day of sick leave since 1997.

In

June of 2001, he received a letter of commendation and a gift
certificate from his supervisor in recognition of his non-use of
sick leave during calendar year 2000.

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King denied possessing any preconceived notions with regard
to employees who take injury leave or making any disparaging
remarks in that connection.

King also presented evidence

regarding other employees of the Brookline Post Office who took
FMLA leave while under his supervision and did not claim
subsequent retaliation.
I do not find King=s testimony in this regard credible and
find rather that he was predisposed to view those on leave for
injuries as putative malingerers who made his staffing work more
challenging.
8.

Damages Evidence

Through an expert economist, Chase offered largely
uncontroverted evidence of his lost earnings as a result of
being terminated by the USPS.

At the time of trial, Chase was a

forty-year-old male with a high school education who has worked
for the postal service for most of his adult life.

After being

cleared to return to work by his doctor, he reapplied to work at
the Postal Service, but was told his application would not be
considered because he previously had been terminated for cause.
Since being terminated, he remained unemployed until shortly
before trial, when he obtained a part-time job at an auto-body
shop for low pay and no benefits.

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Evidence at trial supports

back pay losses totalling $270,071.00 as a result of his
termination.
B.

Findings of Fact
In light of the evidence detailed above, I make the

following findings of fact:
Chase was injured on July 31, 2010, and remained unable to
work as a letter carrier until sometime after King made the
decision in January 2011 to terminate him.
From the date of his injury until the date his termination
became final on September 30, 2011, Chase was on injured leave
and was receiving workers= compensation payments.

For the first

twelve weeks following his accident, from July 21, 2010 until
October 12, 2010, Chase=s injury leave was also designated as
FMLA leave.7

Although Chase otherwise might have become eligible

for another twelve weeks of FMLA leave beginning on January 1,
2011, he was in fact ineligible because he had worked fewer than
1,250 hours in 2010.

See 29 C.F.R. ' 825.110.

7

The redundancy in the leave bases appears to be the result of a
failure by the USPS to counsel Chase from taking FMLA leave at a
time when paid leave was available. Whether the result of
bureaucratic indolence or fear of legal exposure for meaningful
and helpful counsel, the USPS practice in this regard caused
Chase to use FMLA leave at a time when it provided him with no
benefit he was not then receiving from workers’ compensation
benefits.
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King knew that Chase had suffered a serious injury that
rendered him unable to work, and knew that Chase was on injured
leave and was receiving workers= compensation benefits.

He did

not know that Chase had applied for and was granted FMLA leave
to run concurrently with the first twelve weeks of his workers=
compensation leave.

Rather King believed that Chase was at all

times out on compensatory - not FMLA - leave.
King believed that Chase was exaggerating the severity of
his injury and had been out of work and collecting workers=
compensation benefits for far longer than was necessary.

King

believed this was not the first time that Chase had abused the
system.

King repeatedly pressured Chase to return to work, and

threatened to have him investigated for workers= compensation
fraud if he did not return promptly.

King continued to pressure

Chase to return to work even after his September 18, 2010
arrest.
In early January 2011, USPS Labor Relations urged King to
take some action with respect to the Chase brothers= disciplinary
cases.
arrest.

At that point, almost four months had passed since their
Although King made the decision to remove Chase, the

timing of that decision was accelerated by Labor Relations.

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Having become increasingly fed up with Chase and having
recently cut off communication with him when it became evident
that Chase had no intention of returning to work anytime soon,
King decided to exercise his discretion to seek Chase=s
termination.

In doing so, he treated Chase far less leniently

than he had treated other employees arrested for drug offenses,
who, unlike Chase, had been arrested while on duty and who had
records of prior discipline.

King=s decision to terminate Chase

was motivated by animus over what he perceived to be Chase=s
abuse of workers= compensation leave, which was further
aggravated by Chase=s arrest on drug charges while he was out of
work.

King was not, however, motivated by Chase’s FMLA leave

taking, of which he was unaware.
II. CONCLUSIONS OF LAW
The twin purposes of the FMLA are to Abalance the demands of
the workplace with the needs of families@ and Ato entitle
employees to take reasonable leave for medical reasons.@

29

U.S.C. ' 2601(b)(1) & (2); Hodgens v. General Dynamics Corp., 144
F.3d 151, 159 (1st Cir. 1998).
The FMLA contains two distinct types of provisions aimed at
accomplishing these purposes.

First, it creates a series of

substantive C or Aprescriptive@ C rights.

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Id. at 159-60.

Eligible employees Ashall be entitled@ to up to twelve weeks of
unpaid leave per year for any one of the following purposes:
when the employee has Aa serious health condition that makes [him
or her] unable to perform the functions of [his or her]
position,@ 29 U.S.C. ' 2612(a)(1)(D); to care for a close family
member with such a condition, 29 U.S.C. ' 2612(a)(1)(C); or
because of the birth, adoption, or placement in foster care of a
child, 29 U.S.C. ' 2612(a)(1)(A) & (B).

See also 29 U.S.C. '

2611(11); 29 C.F.R. '' 825.100(a), 825.114 (1997) (defining a
Aserious health condition@).

Following a qualified absence, the

employee is entitled to return to the same position or an
alternate position with equivalent pay, benefits, and working
conditions, and without loss of accrued seniority.
2614(a)(1); 29 C.F.R. '' 825.100(c) (1997).

29 U.S.C. '

Second, the FMLA

creates Aproscriptive@ rights which expressly protect employees
against retaliation for invoking their prescriptive rights.
Hodgens, 144 F.3d at 159 (citing 29 U.S.C. ' 2615(a)(1) & (2); 29
C.F.R. ' 825.220 (1997)).

29 U.S.C. ' 2615(a)(1) provides: AIt

shall be unlawful for any employer to interfere with, restrain,
or deny the exercise of or the attempt to exercise, any right
provided under this subchapter.@

29 U.S.C. ' 2615(a)(2) further

provides: AIt shall be unlawful for any employer to discharge or

-25-

in any other manner discriminate against any individual for
opposing any practice made unlawful by this subchapter.@

This

means that employers are prohibited from Aus[ing] the taking of
FMLA leave as a negative factor in employment actions, such as
hiring, promotions or disciplinary actions.@

Hodgens, 144 F.3d

at 160 (quoting 29 C.F.R. ' 825.220(c)).
Where, as here, an employee alleges a violation of his
proscriptive rights under the FMLA, the critical issue is the
employer=s motive, and specifically Awhether the employer took
the adverse action because of a prohibited reason or for a
legitimate non-discriminatory reason.@

Hodgens, 144 F.3d at 160.

The First Circuit has adopted a familiar framework to analyze
Athe tricky issue of motivation,@ which is analogous to that used
in cases involving other types of discrimination, such as
discrimination under Title VII of the Civil Rights Act of 1964.
Id.; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800B06
(1973) (discrimination under Title VII); DeNovellis v. Shalala,
124 F.3d 298, 308 (1st Cir. 1997) (discrimination under ADEA);
Katz v. City Metal Co., 87 F.3d 26, 30 n.2 (1st Cir. 1996)
(discrimination under ADA).
Under the McDonnell Douglas framework, an aggrieved
employee bears the initial burden of adducing sufficient

-26-

evidence to establish a prima facie case of discrimination or
retaliation.

McDonnell Douglas, 411 U.S. at 802; Hodgens, 144

F.3d at 160.

To make out a prima facie case for FMLA

retaliation, the employee must demonstrate that (1) he availed
himself of a protected right under the FMLA; (2) he was
adversely affected by an employment decision; and (3) there is a
causal connection between the employee=s protected activity and
the employer's adverse employment action.

Hodgens, 144 F.3d at

160 (citing Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir.
1997)).
If the employee makes out a prima facie case, the burden
then shifts to the employer A>to articulate some legitimate, nondiscriminatory reason for the employee’s [termination],=
sufficient to raise a genuine issue of fact as to whether it
discriminated against the employee.@

Hodgens, 144 F.3d at 160

(quoting McDonnell Douglas, 411 U.S. at 802).

The employer

must, through the introduction of admissible evidence, provide
an explanation that is legally sufficient to justify a judgment
for the employer.

Id. (citing Texas Dep’t of Community Affairs

v. Burdine, 450 U.S. 248, 255 (1981)).

“If the employer=s

evidence creates a genuine issue of fact, the presumption of
discrimination drops from the case, and the plaintiff retains

-27-

the ultimate burden of showing that the employer=s stated reason
for terminating him was in fact a pretext for retaliating
against him for having taken protected FMLA leave.”

Id.

Even

where the employer has successfully shifted the burden back to
the employee, Aevidence and inferences that properly can be drawn
from the evidence presented during the employee=s prima facie
case may be considered in determining whether the employer=s
explanation is pretextual.@

Id. (citing St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 511 (1993)).
Here, it is undisputed that Chase availed himself of a
protected right under the FMLA when he took leave for Aa serious
health condition that [made him] unable to perform the functions
of [his] position,@ 29 U.S.C. ' 2612(a)(1)(D), and that he was
adversely affected by an employment decision when he was
terminated.

It is equally clear that the defendants have

provided a non-retaliatory justification for Chase=s termination
in the form of Chase=s arrest on drug charges, and that his
termination was upheld by an arbitrator as being supported by
just cause.8

As in many FMLA cases, the question then becomes

8

Chase did not move to vacate the arbitrator=s decision and the
propriety of that decision is not before me. However, Chase has
suggested throughout this litigation that the application of ELM
Section 665.25 to his case was clearly erroneous because it
applies only to on-duty drug use. As reproduced in note 2,
-28-

whether the defendants= explanation for terminating Chase — that
he was arrested on drug charges — was pretextual, and whether
the real reason was Chase’s taking of protected leave under the
FMLA.
As I observed in my November 4, 2013 Memorandum and Order
denying the defendants= motion for summary judgment on Chase=s
retaliation claim, the Supreme Court’s decision in University of
Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013) has created
some uncertainty regarding the appropriate causation standard to
apply in FMLA retaliation cases.

The Supreme Court in Nassar

held that Title VII retaliation claims Amust be proved according
to traditional principles of but-for causation . . . [which]
requires proof that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or
actions of the employer.@

Id. at 2533.

Because the framework

for analyzing FMLA retaliation claims is adopted from the Title

supra, that section reads as follows: AIllegal Drug Sale, Use, or
Possession: The Postal Service will not tolerate the sale,
possession or use of illegal drugs, or the abuse of legal drugs
while on duty or on postal premises.@ Although the issue is not
directly before me, I am satisfied that while not a model of
clarity, the clause Awhile on duty or on postal premises@ can
reasonably be read only to modify the immediately preceding
clause, i.e., “the abuse of legal drugs.” Under such a reading,
the Asale, possession or use of illegal drugs@ would be grounds
for termination regardless of whether such conduct occurred
while off-duty.
-29-

VII arena, see Hodgens, 144 F.3d at 60, the defendants readvance the argument they made on summary judgment that,
following Nassar, plaintiffs alleging FMLA retaliation must
establish but-for causation.

See Chase, 2013 WL 5948373 at *9.

Chase contends that absent a decision of the First Circuit
adopting Nassar=s but-for causation standard for FMLA retaliation
claims, he need only prove that his taking of FMLA leave was a
“negative factor” in the decision to terminate him.
825.220(c).

29 C.F.R. '

See also Henry v. United Bank, 686 F.3d 50, 55 (1st

Cir. 2012).
I concluded in my November 4, 2013 Memorandum and Order
that genuine issues of material fact in the record before me
precluded summary judgment on Chase=s retaliation claim
regardless of which causation standard was to be applied.
Chase, 2013 WL 5948373 at *10-12.

See

After evaluating the evidence

and findings of fact after trial, however, I now find that the
outcome of this case hinges on which standard properly applies
and that I must identify which standard is applicable.
There has been no material development in the case law
since the issuance of my November 4, 2013 Memorandum and Order.
The question whether Nassar applies to FMLA retaliation cases
remains an open one.

Those Courts of Appeals that have

-30-

acknowledged the potential effect of Nassar in the FMLA context
have expressly declined to consider the issue, concluding it
made no difference on summary judgment or had been waived.

See

Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 598 F. App'x 109,
112 (3d Cir. 2015); Malin v. Hospira, Inc., 762 F.3d 552, 562
n.3 (7th Cir. 2014); Ion v. Chevron USA, Inc., 731 F.3d 379, 390
n.11 (5th Cir. 2013).

Two circuits, writing before Nassar but

after the related opinion of Gross v. FBL Financial Services,
Inc., 557 U.S. 167 (2009), which required but-for causation for
ADEA claims, found that but-for causation was not required under
the FMLA.

Goelzer v. Sheboygan Cty., Wis., 604 F.3d 987, 995

(7th Cir. 2010); Hunter v. Valley View Local Sch., 579 F.3d 688,
691 (6th Cir. 2009).
Most district courts to have confronted the issue have
declined to apply Nassar=s but-for causation standard in the FMLA
retaliation context either because it had not explicitly been
adopted by a higher court, see Kendall v. Walgreen Co., 2014 WL
1513960 *6 (W.D. Tex. Apr. 16, 2014) (absent contrary ruling
from Fifth Circuit, court was Abound to . . . apply mixed-motive
framework@); Mathis v. BDO USA, LLP, 2014 WL 975706, at *6 (S.D.
Tex. Mar. 12, 2014) (until higher court says otherwise, Nassar
does not change analysis in FMLA cases); Chaney v. Eberspaecher

-31-

NA, 955 F. Supp. 2d 811, 813 n.1 (E. D. Mich. 2013) (stating Athe
Nassar decision, while informative, did not change any
applicable standards [in FMLA cases]@), or because it made no
difference in the outcome, see, e.g., Wanamaker v. Westport Bd.
of Educ., 11 F.Supp.3d 51, 73 (D. Conn. 2014) (concluding
question need not be resolved on summary judgment); Slade v.
Alfred Univ., 2013 WL 6081710, at *2 (W.D.N.Y. Nov. 19, 2013)
(concluding plaintiff survived summary judgment under either
standard); Ford v. Berry Plastics Corp., 2013 WL 5442355, at *10
n.8 (D. Md. Sept. 27, 2013) (same).
Others, including my colleague Judge Stearns, have assumed
Nassar would apply in the FMLA context.

DiBlasi v. Liberty Mut.

Group. Inc., 2014 WL 1331056, at *10 n.20 (D. Mass. April 3,
2014) (observing “[w]hile Nassar dealt with a Title VII
employment discrimination claim, Justice Kennedy=s observation
that common-law >but-for= tort causation principles should be
presumed to be the default rules adopted by Congress “absent an
indication in the statute itself,” applies with equal force in
the FMLA context”); see also Taylor v. Rite Aid Corp., 993 F.
Supp. 2d 551, 567-68 (D. Md. 2014) (applying but-for causation
to both Title VII and FMLA retaliation claims, but without
noting any change in the law); Sparks v. Sunshine Mills, Inc.,

-32-

2013 WL 4760964, at *17 n.4 (N.D. Ala. Sept. 4, 2013) (applying
but-for causation to FMLA retaliation claim following Nassar
because FMLA employs statutory language similar to that found in
Title VII).
For its part, the First Circuit has not directly addressed
the applicability of Nassar to the FMLA.

Since Nassar was

decided, the First Circuit has continued to use its old
standards for FMLA retaliation claims, including applying the
regulatory “negative factor” language rather than but-for
causation.

Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d

63, 68 (1st Cir. 2015); Carrero-Ojeda v. Autoridad de Energia
Electrica, 755 F.3d 711, 718 (1st Cir. 2014).

However, these

opinions do not mention Nassar and suggest only that the issue
has not yet been squarely presented to the court.
Compelled as I am to decide, in the absence of controlling
authority, which standard the First Circuit would apply if it
confronted the issue, I conclude that Chevron deference is owed
to the Department of Labor’s regulations.

Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865 (1984).
Those regulations require me to find that Chase need only show
that his protected taking of leave was a negative factor in his
termination, not that it was a but-for cause of his termination.

-33-

Nassar establishes a Adefault rule[]@ under which Congress
is Apresumed to have incorporated, absent an indication to the
contrary in the statute itself,@ but-for causation as the causal
standard when drafting statutes.

Nassar, 133 S.Ct. at 2525.

The First Circuit has applied this default rule to the
Rehabilitation Act, Palmquist v. Shinseki, 689 F.3d 66, 77, and
that default rule should govern the interpretation of the FMLA
as well.

However, but-for causation is merely a default, and in

the FMLA it has been supervened by action to which I am
obligated to defer by the agency delegated authority over the
statute by Congress.
The Department of Labor has interpreted the FMLA to require
only that it is unlawful to “use the taking of FMLA leave as a
negative factor in employment actions.”

29 C.F.R. § 825.220(c).

Under this regulation, any meaningful causal connection between
the taking of FMLA leave and an adverse employment action
constitutes retaliation, even if the taking of leave was not
sufficient to cause the adverse action on its own.

If deference

is owed to this regulation, but-for causation is not required
under the FMLA.
A Chevron inquiry is appropriate where, as here, an agency
has promulgated regulations with the force of law pursuant to an

-34-

explicit statutory grant of rulemaking authority.

The

authorization and use of rulemaking authority is “a very good
indicator of delegation meriting Chevron treatment.”
States v. Mead Corp., 533 U.S. 218, 229 (2001).

United

See also

Navarro v. Pfizer Corp., 261 F.3d 90, 99 (1st Cir. 2001) (“To
warrant Chevron deference, Congress must actually delegate
authority to that agency, and the agency must invoke that
authority”).

Such an explicit statutory grant exists here, 29

U.S.C. § 2654, and the Department of Labor put forward its
interpretation under that grant, using formal processes.

This

contrasts sharply with Nassar, where the EEOC adopted its
interpretation only in a guidance manual.
34.

133 S. Ct. at 2533-

The Supreme Court in Nassar considered whether the EEOC’s

interpretation was persuasive under Skidmore v. Swift & Co., 323
U.S. 134 (1944), and found that it was not.

Chevron deference

was not at issue in Nassar.
The First Circuit has held that Chevron deference is
appropriate for Department of Labor interpretations of the FMLA.
Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160 n.4 (1st Cir.
1998) (“The Department of Labor regulations implementing the
FMLA interpret the Act this way, see 29 C.F.R. § 825.220(c) . .
. and those regulations are entitled to deference, see Chevron .

-35-

. .”).

See also Colburn v. Parker Hannifin/Nichols Portland

Div., 429 F.3d 325, 331 (1st Cir. 2005) (“Although the text of
29 U.S.C. § 2615(a) makes no reference to “retaliation,” this
court has recognized such a cause of action in the statute
and specifically the interpretative regulation 29 C.F.R.
§ 825.220(c).”).

That said, the First Circuit has not squarely

addressed whether Chevron deference is appropriate since Nassar
and, more specifically, has not addressed the issue of causation
in dispute here.
Those courts that have directly examined the deference owed
to this particular regulation have found, albeit pre-Nassar, not
only that Chevron governs, but also that deference is
appropriate: that the agency provided a reasonable
interpretation of an ambiguous statute.

See Bachelder v. Am. W.

Airlines, Inc., 259 F.3d 1112, 1122-23 n.9 (9th Cir. 2001)
(“Congress authorized the Department of Labor to promulgate
regulations implementing the FMLA. 29 U.S.C. § 2654. The
department's reasonable interpretations of the statute are
therefore entitled to deference under Chevron”); Hunter v.
Valley View Local Sch., 579 F.3d 688, 692 (6th Cir. 2009) (“We
have already held that § 825.220(c) is a reasonable

-36-

interpretation of the FMLA entitled to deferential judicial
review.”).
I agree with these courts that the FMLA leaves ambiguous
what causal standard governs in retaliation actions and that the
Department of Labor has supplied one reasonable answer.

The

statute does not speak directly to standards for causation and
provides no unambiguous indication that but-for causation is
required.

The relaxed causation standard provided by the

Department of Labor is precisely the sort of “legitimate policy
choice[]” that Chevron empowers a properly delegated agency to
make.

Chevron, 467 U.S. at 865 (1984).
Nassar does not reduce the deference owed to the Department

of Labor in its interpretations of the FMLA.

The Court’s

interpretation of Title VII does not render unambiguous the
language of the FMLA.

“Only a judicial precedent holding that

the statute unambiguously forecloses the agency's
interpretation, and therefore contains no gap for the agency to
fill, displaces a conflicting agency construction.”

Nat'l Cable

& Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S.
967 (2005).

The Nassar court did not even address whether Title

VII was unambiguous in this regard, much less whether the FMLA

-37-

was unambiguous.9

It rather determined what it believed was the

best interpretation of that statute.

The ambiguities in the

FMLA, however, remain delegated for the Department of Labor to
resolve, if it chooses to do so by rulemaking, as it has.
Nassar does not hold that an agency interpreting Title VII
requiring but-for causation would be acting unreasonably; it
simply concludes that the EEOC’s “motivating factor” analysis
was not persuasive.

Chevron requires a court to accept

reasonable interpretations of a statute with which it disagrees.
Brand X, 545 U.S. at 980.

While the Nassar Court – and perhaps

In this respect, a minor textual difference between Title VII
and the FMLA takes on new significance. Nassar relied in part
on the phrase “because of” in Title VII’s anti-retaliation
provisions, which it held implies but-for causation. The FMLA,
in contrast, does not use the phrase “because of.” Rather, it
makes it unlawful for employers to “interfere with, restrain or
deny the exercise of … any right provided” by the statute or to
“discriminate against any individual for opposing any practice
made unlawful” by the statute. 29 U.S.C. § 2615 (emphasis
added). The distinction between “because of” and “for” only
adds to the ambiguity inherent in the statute. Textually, “for”
may mean something different than “because of.” Certainly, as a
basic preposition, the word “for” allows a wide variety of
meanings and uses; consequently, it is ambiguous. The
distinction also complicates comparisons between Title VII and
the FMLA, because Congress appears to have intended the
different phrasings to have different effect. In this context,
I must defer to the agency, I am not called on to offer my own
interpretation of the FMLA provisions; I note only that while
similar to Title VII in many respects, the differences between
the two statutes heighten the ambiguities in the FMLA.
9

-38-

myself as well – might find the FMLA to be best read as
requiring but-for causation, judicial preference in
interpretations must yield in this setting to the agency’s
reasonable interpretation.

Accordingly, I must answer the

following question: Did Chase’s taking of FMLA leave ultimately
contribute to King’s decision to terminate him?
Before I can address that question, however, I must clarify
what constitutes retaliation under the FMLA.

Obviously, an

employer cannot retaliate against an employee for taking FMLA
leave that the employer could not have known about.

Ameen v.

Amphenol Printed Circuits, Inc., 777 F.3d 63, 70 (1st Cir.
2015).

Either knowledge of the employee’s FMLA leave, or notice

sufficient for a reasonable employer to learn that the leave was
FMLA-protected, is required.
not rested on formalisms.

In this respect, the courts have

For example, employers are liable not

only for punishing an employee who has specifically invoked the
FMLA but also for punishing an employee who took leave protected
by the FMLA even if neither employee nor employer actually knew
that the FMLA was involved.

See, e.g., Dotson v. Pfizer, Inc.,

558 F.3d 284, 295 (“employees do not need to invoke the FMLA in
order to benefit from its protections”); Bachelder v. Am. W.
Airlines, Inc., 259 F.3d 1112, 1130 (9th Cir. 2001) (“Whether

-39-

either [employer] or [employee] believed at the time that her …
absences were protected by the FMLA is immaterial, however,
because the company's liability does not depend on its
subjective belief concerning whether the leave was protected.”);
Byrne v. Avon Products, Inc., 328 F.3d 379, 382 (7th Cir. 2003)
(“It is enough under the FMLA if the employer knows of the
employee's need for leave; the employee need not mention the
statute or demand its benefits.”).

What matters is whether the

employer had notice of the need for FMLA leave, such that it
could determine that the leave was FMLA eligible.

This does not

require formal notice; inquiry notice is sufficient.

For

example, notice can be provided in the form of a visibly serious
medical condition, Byrne, 328 F.3d at 381-82, or through
communications sufficient to make a reasonable employer inquire
further to determine whether the absences were likely to qualify
for FMLA protection, Bachelder, 259 F.3d at 1131.
However, the converse must also be true.

On the one hand,

it is a violation of the FMLA for an employer to retaliate
against an employee who takes sick leave, without invoking the
FMLA, when the employer reasonably should have known that the
FMLA could be involved to protect the worker.

On the other

hand, it should not violate the FMLA for an employer to

-40-

retaliate against an employee who has invoked the FMLA, when the
employer would reasonably have believed that the FMLA was not
meaningfully invoked.

In the latter scenario, there is no

actual intent to discriminate against the employee for
exercising his rights, because the employer neither knew nor
should have known that the rights were being exercised to any
effect.

This follows directly from the many cases describing

forms of notice that are insufficient to apprise an employer of
an employee’s need for leave. See, e.g., Brenneman v. MedCentral
Health Sys., 366 F.3d 412, 421 (6th Cir. 2004).
This case is similar to that second scenario.

King was

aware that Chase had suffered a serious injury; on its own, that
would otherwise be enough to put him on notice of FMLA-eligible
leave and support a finding of retaliation.

But King was also

aware that Chase had taken paid leave, under terms more
favorable than the FMLA provides.

Therefore, he reasonably

believed that even though seriously injured, it would not make
sense to Chase to take FMLA leave until — at the earliest — his
paid leave expired.

If King reasonably believed that the FMLA’s

protections had been declined, he could not be held to have
retaliated against Chase for taking FMLA leave.

See McNamara v.

Trinity Coll., No. 3:12CV363 JBA, 2013 WL 164221, at *4 (D.

-41-

Conn. Jan. 15, 2013) (in “circumstances where a plaintiffs
conduct manifestly declines FMLA leave, thus granting notice to
the employer that he or she did not intend to exercise rights
under the FMLA,” there cannot be FMLA retaliation liability).
I find that King actually believed that Chase was not
covered by the FMLA during the relevant period and that he was
reasonable in so believing.

Even the USPS’s internal computer

system used to track employee time records marked Chase as
either “injured on duty” or “out on worker’s compensation.”
This case presents the unusual scenario in which formal, proper
but bureaucratically reflexive invocation of the FMLA fails to
provide a supervisor with the requisite notice or knowledge of
FMLA leave to ground a claim of retaliation.

Due to the unusual

combination and chronology of leave that Chase took, King
reasonably believed that Chase had not invoked FMLA coverage.
Operating under such a belief, King — as the relevant decision
maker — could not have retaliated against Chase for taking FMLA
leave.

That the USPS Human Resources apparatus did not warn

Chase away from redundantly and uselessly taking FMLA leave —
when he already had meaningful leave coverage — does not,
without more, robotically introduce his FMLA leave taking as a

-42-

negative factor in the defendants’ termination decision.
Consequently, Chase’s FMLA retaliation claim must fail.
I am of the view that this holding does not conflict with,
or call into question, those decisions that find retaliation
liability even when a defendant can in some sense be said to be
unaware that the FMLA has been invoked (or even when the FMLA
has not been invoked by name).
supra.

See e.g. Dotson, 558 F.3d 284,

There is to be sure an important, but incompletely

resolved issue regarding precisely what discriminatory intent is
made unlawful: all discrimination against an employee for acts
that are or may be covered by the FMLA, despite the employer’s
lack of knowledge that the FMLA is implicated, or only
discrimination against employees known in some cognizable sense
to be invoking the FMLA itself.

The First Circuit has given

incomplete signals on what awareness of the FMLA’s invocation
must be proven in a retaliation claim.

The First Circuit has

stated that “[w]hat is prevented is adverse action against the
employee for using the protected leave,” Keeler v. Putnam
Fiduciary Trust Co., 238 F.3d 5, 10 (1st Cir. 2001).

In

identifying grounds for finding the discriminatory intent
necessary for a retaliation claim, the court has looked for
“negative comments, complaints, or expressions of reluctance by

-43-

her superiors or co-workers about her FMLA leave-taking [or]
discussion of her FMLA leave status in performance reviews, etc.
[] that would lead us to think that defendants took her FMLA
requests or leave status into account when deciding to discharge
her.”

Carrero-Ojeda v. Autoridad de Energia Electrica, 755 F.3d

711, 720 (1st Cir. 2014).

Those sought-after pieces of evidence

necessarily require some connection to FMLA leave, not leavetaking more generally.
In almost all cases, any distinctions between these signals
may not be material.

The courts ascribe knowledge of FMLA

eligibility to employers based on inquiry notice alone.

In most

cases, therefore, an employer can be liable for retaliating
against an employee for “having availed himself of a right
protected by the FMLA, namely, the right to take medically
necessary leave time.”

Hodgens v. Gen. Dynamics Corp., 144 F.3d

151, 169 (1st Cir. 1998).
This case, in contrast, poses an unusual situation, due to
the concurrent leaves provided by the FMLA and by workers’
compensation.

Chase’s absence was protected by the FMLA for

twelve weeks, even while he received workers’ compensation
benefits.

And that absence was a negative factor in Chase’s

ultimate termination: King was angry with Chase over his absence

-44-

throughout the twelve covered weeks and this colored all the
ensuing events.

But as a factual matter, it was the workers’

compensation leave – not the concurrent FMLA leave – which
angered King and contributed to Chase’s termination.

King not

only did not know that Chase had invoked the FMLA (in which case
he would have been treated as aware for causation purposes), he
believed to the contrary that Chase had not invoked the FMLA.
King effectively, if incorrectly, believed that Chase had
declined FMLA coverage and instead opted for workers’
compensation alone.
I hold that the FMLA does not impose liability on employers
who take adverse employment actions against employees, but who
demonstrate their belief, however mistaken, that the FMLA was
not invoked.

This seems to me inherent in the concept of

intentional retaliation.

I must nevertheless observe how rarely

this issue will affect litigants.

Where the employer is simply

unaware of the FMLA’s protections, it could still remain liable
under theories of inquiry notice.

Employers with mixed motives,

in which both FMLA leave-taking and concurrent leave-taking are
negative factors in the adverse employment decision, can also be
liable for retaliation under the FMLA.

Retaliation liability is

avoided based on an employer’s subjective knowledge only where a

-45-

finder of fact has determined that an employer did not intend to
retaliate on the basis of leave taken under the FMLA.

Formal,

written notice of FMLA leave-taking, even to some other branch
of an organization, will usually be sufficient to create
knowledge of FMLA leave.

But the particular facts of this case

are idiosyncratic in supporting my finding that the relevant
decision maker for the employer demonstrably believed that the
FMLA was not invoked, although it had been invoked formally.
For this reason, I conclude that FMLA leave taking was not a
negative factor in the defendants’ termination decision.

The

findings supporting that conclusion are reinforced by the
passage of time after the FMLA leave was formally taken and
concluded and before the adverse employment action occurred.
The fact that no remaining FMLA leave would have been available
after the worker’s compensation leave was concluded means that
prospective FMLA leave taking is not a factor in the decision
making.
III. ORDER FOR JUDGMENT
For the foregoing reasons, it is hereby ORDERED that
judgment enter for the defendants on the basis of these findings
of fact and conclusions of law and my November 4, 2013

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Memorandum and Order granting defendant=s partial summary
judgment.

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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