Gourdeau v. City of Newton
Judge William G. Young: ORDER entered. MEMORANDUM OF DECISION "For the preceding reasons, this Court held that a general verdict was inappropriate in this case and instead charged the jury to return a special verdict under Federal Rule of Civil Procedure 49(a). This Court now concludes that retaliation claims brought under the FMLA must be proved according to a but-for causation standard."(Sonnenberg, Elizabeth)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JO ANNE GOURDEAU,
CITY OF NEWTON,
NEWTON POLICE DEPARTMENT,
March 2, 2017
MEMORANDUM OF DECISION
In this action, Jo Anne Gourdeau (“Gourdeau”), employed by
the Newton Police Department (the “Department”), brought suit
against the City of Newton (the “City”, collectively, with the
Department, the “Defendants”) and the Department for gender
discrimination in violation of Massachusetts General Laws
chapter 151B, section 4 (count I), retaliation for filing an
internal gender discrimination complaint in violation of
Massachusetts General Laws chapter 151B, section 4 (count II),
and retaliation for use of protected family and medical leave in
violation of the Family and Medical Leave Act (“FMLA” or the
“Act”), 29 U.S.C. sections 2601–2619 (count III).
Court granted summary judgment in favor of the City as to counts
I and II, count III proceeded to trial.
Following a three-day
trial, the jury returned a verdict for the Defendants.
This straightforward narrative belies an important and
difficult legal question that arose at the end of the trial.
Before the case concluded, this Court consulted the parties
about its plans to charge the jury to return a general verdict.
Both parties objected, raising a dispute about the appropriate
causation standard applicable in FMLA retaliation cases.
Recognizing the uncertainty concerning the correct legal
standard, this Court concluded that a general verdict would be
inappropriate, and instead decided to charge the jury to return
a special verdict under Federal Rule of Civil Procedure 49(a).
This memorandum explains this Court’s reasoning for doing so.
The Department has employed Gourdeau since June 1, 1998.
Statement Undisputed Facts Supp. Mot. Summ. J. Defs. (“Defs.’
Statement Facts”) ¶ 12, ECF No. 41; Pl.’s Concise Statement
Material Facts R. (“Pl.’s Statement Facts”) ¶ 1, ECF No. 48.
Initially hired as a patrol officer, Gourdeau has also occupied
the positions of Traffic Officer (2004-2009) and Safety Officer
Defs.’ Statement Facts ¶ 17; Pl.’s Statement Facts
Between 2008 and 2012, Gourdeau took several days off
for personal and family-related medical reasons.
Statement Facts ¶ 14; Pl.’s Statement Facts ¶ 29.
On November 23, 2012, the Department created a temporary
Traffic Officer specialist position.
30; Pl.’s Statement Facts ¶ 5.
Defs.’ Statement Facts ¶
Four officers, including
Gourdeau, applied for the position.
Defs.’ Statement Facts ¶
34; Pl.’s Statement Facts ¶ 9.
The Department did not select
Gourdeau for the new position.
Defs.’ Statement Facts ¶ 41;
Pl.’s Statement Facts ¶¶ 11-12.
After her non-selection, Gourdeau’s union filed a grievance
alleging that the City had violated an existing Collective
Bargaining Agreement by not selecting her as the temporary
Traffic Officer due to her seniority.
46-48; Pl.’s Statement Facts ¶ 46.
Defs.’ Statement Facts ¶¶
Ultimately, the grievance
was settled and Gourdeau received $4,992 from the Department.1
Defs.’ Statement Facts ¶¶ 49-51; Pl.’s Statement Facts ¶ 47.
Gourdeau claims that she was a victim of retaliation for
using FMLA-protected leave, as well as for complaining about not
being selected for the temporary Traffic Officer position.
Pl.’s Statement Facts ¶¶ 28, 33-35.
argues that the Department did not select her for the position
in retaliation for taking FMLA-protected leave.
Id. at ¶ 28.
Although Gourdeau ultimately received the full $4,992, she
never signed the settlement because she disputed the amount.
Pl.’s Statement Facts ¶¶ 47-48.
Gourdeau initiated this action on October 23, 2013, in the
Middlesex County Massachusetts Superior Court sitting in and for
the County of Middlesex.
Demand, ECF No. 1-3.
Notice Removal, Ex. 3, Compl. and Jury
The Defendants removed the case to this
Court on November 8, 2013.
Notice Removal, ECF No. 1.
On November 25, 2015, the Defendants filed a motion for
summary judgment, Mot. Summ. J. Defs., ECF No. 37, along with a
supporting memorandum, Mem. Supp. Mot. Summ. J. Defs., ECF No.
38, and statement of facts, Defs.’ Statement Facts.
30, 2015, Gourdeau filed a memorandum opposing the Defendants’
motion for summary judgment, Pl.’s Mem. Opp’n Defs.’ Mot. Summ.
J., ECF No. 49, along with a supporting statement of facts,
Pl.’s Statement Facts.
filed a reply.
On January 11, 2016, the Defendants
Reply Br. Supp. Mot. Summ. J. Defs., ECF No. 52.
Gourdeau filed a sur-reply on January 15, 2016, Pl.’s Surreply
Opp’n Defs.’ Mot. Summ. J. (Dkt. #37), ECF No. 54.
report and recommendation by Magistrate Judge Cabell, Report and
Recommendation Regarding Defs.’ Mot. Summ. J., ECF No. 61,
District Judge Sorokin granted the Defendants’ motion for
summary judgment as to counts I and II and denied it with
respect to count III.
Electronic Clerk’s Notes, ECF No. 64.
A jury trial on the surviving claim commenced on December
Electronic Clerk’s Notes, ECF No. 88.
On December 8,
2016, the jury returned its special verdict.2
The jury’s answers mandated the entry of judgment for
the City of Newton.
This Court entered judgment upon this jury
verdict on December 13, 2016.
Jury Verdict, ECF
J., ECF No. 100.
The Court here explains why it held that a general verdict
was inappropriate in this case and opted instead to charge the
jury to return a special verdict under Federal Rule of Civil
The Court then turns to addressing the
appropriate causation standard applicable in FMLA retaliation
Inappropriateness of a General Verdict
The jury charge is perhaps the greatest intellectual
challenge facing a busy trial judge.
“The trial judge is
constantly required to be comprehensively brief, perhaps the
most daunting oxymoron in the law.
The judge must be understood
This Court posed the following three questions to the
jury: 1) Did the City of Newton consider protected FMLA sick
leave a “negative factor” when evaluating Jo Anne Gourdeau for
the disputed position?; 2) Whatever your answer to question 1
alone, did the City of Newton select another officer for the
disputed position for legitimate reasons?; and 3) After first
subtracting the monetary value of the labor settlement, what
additional compensation, if any, including stipend and overtime
pay would Jo Anne Gourdeau have received had she been selected
for the disputed position? Jury Verdict. The jury answered
“no” to question 1 and “yes” to question 2. Id. Based on its
negative answer to question 1, the jury did not proceed to
answer question 3. Id.
by lay jurors while delineating complex legal norms with
It is the most challenging law teaching of
Collins v. Ex-Cell-O Corp., 629 F. Supp. 540, 541
(D. Mass. 1986).
Throughout the jury trial, this Court --
simply but rather naively -- assumed that a general verdict
instruction was perfectly suitable for this case.
that general jury verdicts are the norm rather than the
exception has been well-settled law since the time English
common law ruled this land.
See Griffin v. United States, 502
U.S. 46, 49-51 (1991) (discussing the history of general jury
verdicts in criminal cases); see also Edmund M. Morgan, A Brief
History of Special Verdicts and Special Interrogatories, 32 Yale
L.J. 575 (1923).
General verdicts are acceptable even when
multiple theories of liability or guilt are submitted to the
jury under a single count, and the verdict does not specify
which of the theories the jury relied upon.
See Claassen v.
United States, 142 U.S. 140, 146 (1891) (“[I]t is settled law in
this court, and in this country generally, that in any criminal
case a general verdict and judgment on an indictment or
information containing several counts cannot be reversed on
error if any one of the counts is good, and warrants the
Although general verdicts are the norm, a district court
“may require a jury to return only a special verdict in the form
of a special written finding upon each issue of fact.”
Civ. P. 49(a)(1)3; see also Anderson v. Cryovac, Inc., 862 F.2d
910, 915–16 (1st Cir. 1988) (discussing district courts’
application of special verdicts and appropriate standard of
review for such decisions).
By using special verdicts in
appropriate cases, courts can better focus the jury’s attention
on specific material issues of fact (and preserve important
issues for appeal).
See Edson R. Sunderland, Verdicts, General
and Special, 29 Yale L.J. 253, 259 (1920) (“It is easy to make
mistakes in dealing at large with aggregates of facts.
special verdict compels detailed consideration.
But above all
it enables the public, the parties and the court to see what the
jury really has done.”).
The risks, however, are fairly
Complex special verdicts may bore jurors and allow
their minds to wander.
Collins, 629 F. Supp. at 541 (raising a
similar point about illustrative charges).
Federal Rule of Civil Procedure 49(a)(1) provides that:
The court may require a jury to return only a special
verdict in the form of a special written finding on
each issue of fact. The court may do so by:
(A) submitting written questions susceptible of a
categorical or other brief answer;
(B) submitting written forms of the special
findings that might properly be made under the
pleadings and evidence; or
(C) using any other method that the court
Here, as in most cases, the offering of evidence concluded
during the morning, the charge conference was scheduled for that
afternoon, and the jury was told to return on the morrow to hear
closing arguments and receive their charge.
During the charge
conference, counsel diligently brought to the Court’s attention
an existing uncertainty concerning the correct standard of
causation (discussed below) applicable to FMLA retaliation
More important, this Court was caught short, realizing
that it could not timely decide the correct causation standard
to teach to the jury.
This practical recognition made it clear
that a general verdict would be inappropriate.
Court charged the jury to return a special verdict.
alternative was to delay jury deliberations until this Court
decided the issue of the appropriate causation standard for the
This would cause burdensome delays and likely prevent
this Court from examining this topic with the care justice
Such a result is unacceptable.
Now, however, weeks
following the jury trial and after rigorous study, a decent
respect for the able argument of counsel compels consideration
of this pending issue.4
Notably, the jury verdict ultimately rendered the
causation standard issue moot, since the jury found that the
City of Newton had not considered FMLA-protected sick leave as a
negative factor when evaluating Gourdeau for the disputed
position. Jury Verdict. In any case, this Court now takes the
Causation Standard in FMLA Retaliation Cases
At first, this case appeared to present fairly
straightforward legal issues.
When the jury trial was
proceeding to conclusion, however, an interesting and difficult
legal question arose.
Did Gourdeau carry the burden of proving
that the Department had used her FMLA-protected sick leave only
as a negative factor in reviewing her application for the
temporary Traffic Officer position?
Or did Gourdeau carry the
heavier burden of proving that she would have gotten the
temporary position but for her taking FMLA-protected leave?
other words, what is the legally required causation standard
applicable in FMLA retaliation cases?
Congress enacted the FMLA with two main purposes, namely
“to balance the demands of the workplace with the needs of
families” and “to entitle employees to take reasonable leave for
29 U.S.C. § 2601(b)(1) & (2); Hodgens v.
General Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998).
statute includes two types of provisions, “those establishing
substantive rights and those providing protection for the
exercise of those rights.”
Colburn v. Parker Hannifin, 429 F.3d
325, 330 (1st Cir. 2005) (citing inter alia 29 U.S.C. §§ 2612,
time to address this point in dicta to shed light on this
difficult legal question.
In terms of substantive rights, the FMLA entitles
an employee to take up to twelve weeks of leave during any
twelve-month period for a variety of reasons, including to care
for a family member, such as a parent, with a serious health
29 U.S.C. § 2612(a)(1); Nagle v. Acton–Boxborough
Reg’l Sch. Dist., 576 F.3d 1, 2 (1st Cir. 2009); Hodgens, 144
F.3d at 159.
Upon an employee’s return from qualified FMLA
leave, her employer must reinstate her to the same or an
equivalent position, without loss of accrued seniority.
U.S.C. § 2614(a)(1) & (3); Colburn, 429 F.3d at 330; Hodgens,
144 F.3d at 159.
To protect these substantive rights, the FMLA makes it
unlawful for any employer to retaliate against employees for
invoking their substantive rights.5
See Carrero-Ojeda v.
Although the text of section 2615(a) does not reference
“retaliation” explicitly, the First Circuit consistently has
recognized such a cause of action is present in the statute and
its supporting regulation. See Colburn, 429 F.3d at 331;
Hodgens, 144 F.3d at 160-61 & n.4 (citing 29 U.S.C. § 2615(a)(1)
& (2); 29 C.F.R. § 825.220(c)). The applicable regulation
reads: “[t]he Act’s prohibition against interference prohibits
an employer from discriminating or retaliating against an
employee or prospective employee for having exercised or
attempted to exercise FMLA rights.” 29 C.F.R. § 825.220(c)
(emphasis added). Other circuits have held that claims of
alleged retaliation for taking protected leave arise under
FMLA’s general discrimination provision, 29 U.S.C. section
2615(a)(2). See, e.g., Brisk v. Shoreline Found., Inc., 654 F.
App’x 415, 416 (11th Cir. 2016); Menekse v. Harrah’s Chester
Casino & Racetrack, 649 F. App’x 142, 145 (3rd Cir. 2016);
Spakes v. Broward Cnty. Sheriff’s Office, 631 F.3d 1307, 1308
(11th Cir. 2011); Phillips v. Mathews, 547 F.3d 905, 909 (8th
Autoridad de Energía Eléctrica, 755 F.3d 711, 718 (1st Cir.
2014) (citing 29 U.S.C. § 2615(a)(1) & (2)); Henry v. United
Bank, 686 F.3d 50, 55 (1st Cir. 2012) (“The Act also prohibits
employers from retaliating against employees for exercising
their statutory rights.”).
Section 2615(a)(1) makes “[i]t . . .
unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right provided
under” the Act.
Section 2615(a)(2) holds employers liable if
they “discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful” under the
See Colburn, 429 F.3d at 331 (explaining the differences
and overlaps between claims brought under sections 2615(a)(1)
When, as in this case, an employee sues under a retaliation
theory, the employer’s motive is key, and the specific issue
becomes “whether the employer took the adverse action because of
a prohibited reason or for a legitimate nondiscriminatory
Hodgens, 144 F.3d at 160.
In Hodgens, the First
Circuit relied on the familiar framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973),
to analyze “the tricky issue of motivation” in employment
Cir. 2008); Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244
(6th Cir. 2004); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298
F.3d 955, 960 (10th Cir. 2002).
discrimination cases, lacking direct evidence of discrimination,
brought under Title VII of the Civil Rights Act of 1964 (“Title
Hodgens, 144 F.3d at 160.
Under the McDonnell Douglas framework, a plaintiff employee
bears the initial burden of establishing a prima facie case of
discrimination or retaliation.
To make out a prima facie case for 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 161.
If the employee successfully makes
out a prima facie case, the burden of production then shifts to
the employer “to articulate some legitimate, nondiscriminatory
reason for the employee’s [termination]” that is “legally
sufficient to justify a judgment for the [employer].”
160-61 (quoting McDonnell Douglas, 411 U.S. at 802 and Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)).
If the employer produces such evidence, “the presumption of
discrimination drops from the case, and the plaintiff retains
the ultimate burden of showing that the employer’s stated reason
Although this burden-shifting framework is most often used
to evaluate cases during the pretrial stage, especially at
summary judgment, it still “lurks in the background during
trial.” Palmquist v. Shinseki, 689 F.3d 66, 71 (1st Cir. 2012).
for terminating him was in fact a pretext for retaliating
against him for having taken protected FMLA leave.”
Id. at 161.
Here, neither party disputes that Gourdeau took FMLAprotected leave and that there was an adverse employment action
(the denial of the temporary position).
Defs.’ Statement Facts
¶¶ 14, 41; Pl.’s Statement Facts ¶¶ 11-12, 29.
question, then, is whether there is a causal connection between
Gourdeau’s protected activity and the City’s adverse action.
Neither the Supreme Court nor the First Circuit has
addressed the specific issue concerning the causation standard
applicable to FMLA retaliation cases.7
absence of binding precedent, this Court does not write on a
Three arguments strongly support the conclusion
that “but-for” is the appropriate causation standard for FMLA
The first argument concerns the significance
of Congress’s choices in designing and structuring statutes that
regulate wrongful employer conduct, such as retaliation and
other forms of status-based discrimination.
The second argument
relates to the proper interpretation of the FMLA’s text.
arguments follow from recent Supreme Court and First Circuit
In Chase v. United States Post Service, 843 F.3d 553, 559
n.2 (1st Cir. 2016), the First Circuit noted the existing
tension in the case law as to the appropriate causation standard
to apply in FMLA retaliation cases, but it ultimately declined
to address this issue.
jurisprudence on discrimination and retaliation in the
Third, there are important policy considerations
that favor a “but-for” test.
There is, however, one significant
argument in favor of a negative-factor standard that merits
The argument for a negative-factor test relates to a
Department of Labor regulation and the extent to which the
agency’s rule deserves controlling deference.
sections discuss each of these arguments in turn.
Supreme Court’s Employment Discrimination
In addition to the absence of binding precedent on the
appropriate causation standard applicable in FMLA retaliation
cases, the Supreme Court’s recent workplace discrimination
jurisprudence further muddies the waters.
It may be helpful,
therefore, to revisit that court’s relevant precedents on this
In Price Waterhouse v. Hopkins, the Supreme Court held that
an employee who alleges employment discrimination under Title
VII could prevail if she showed that the motive to discriminate
was one of the elements of the employer’s decision, even if the
employer also had other, lawful motives.
490 U.S. 228, 258
If the plaintiff made that showing, the burden of
persuasion shifted to the employer, who could escape liability
if it proved that it would have taken the same employment action
in the absence of all discriminatory animus.
Id. at 244-45
(concluding that, under 42 U.S.C § 2000e–2(a)(1), an employer
could “avoid a finding of liability . . . by proving that it
would have made the same decision even if it had not allowed
gender to play such a role”).
In other words, employers have to
show that a discriminatory motive was not the but-for cause of
the adverse employment action.
In 1991, partially in response to Price Waterhouse,
Congress altered Title VII to codify in part and abrogate in
part the holding in that case.
See Landgraf v. USI Film Prods.,
511 U.S. 244, 250 (1994) (“The 1991 Act is in large part a
response to a series of decisions of this Court interpreting the
Civil Rights Acts of 1866 and 1964.”).
In the Civil Rights Act
of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (codified as
amended at 42 U.S.C. §§ 2000e–2(m),8 2000e–5(g)(2)(B)) (“1991
Amendment”), Congress authorized discrimination claims where an
improper consideration was only “a motivating factor” in the
Simply put, Congress explicitly established a
lessened causation standard for discrimination claims brought
42 U.S.C. §§ 2000e–2(m) provides that: “Except as
otherwise provided in this subchapter, an unlawful employment
practice is established when the complaining party demonstrates
that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other
factors also motivated the practice.”
under Title VII than the one created in Price Waterhouse.
1991 Amendment also substituted a new burden-shifting framework
for the one endorsed in Price Waterhouse.
42 U.S.C. §§ 2000e–
Under that new regime, a plaintiff can prevail in
Title VII discrimination claims by showing that race, color,
religion, sex, or nationality was a motivating factor in the
adverse employment action, unless the employer can show that it
would have taken the same action absent that factor.
University of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,
2526 (2013) (describing effect of 1991 Amendment on causation
Considerable time passed before the Supreme Court returned
to this topic.
In 2009, the Supreme Court splitting 5-4
concluded that a plaintiff bringing a disparate-treatment claim
under the Age Discrimination in Employment Act (“ADEA”), 29
42 U.S.C. §§ 2000e–5(g)(2)(B) provides that:
On a claim in which an individual proves a violation
under section 2000e-2(m) of this title and a
respondent demonstrates that the respondent would have
taken the same action in the absence of the
impermissible motivating factor, the court (i) may
grant declaratory relief, injunctive relief (except as
provided in clause (ii)), and attorney's fees and
costs demonstrated to be directly attributable only to
the pursuit of a claim under section 2000e-2(m) of
this title; and (ii) shall not award damages or issue
an order requiring any admission, reinstatement,
hiring, promotion, or payment, described in
U.S.C. § 623, must prove, by a preponderance of the evidence,
that but for the employer discriminating on the basis of age,
the plaintiff would not have been subject to an adverse
167, 176 (2009).
Gross v. FBL Fin. Servs., Inc., 557 U.S.
In Gross, the Justices paid particular
attention to the contrasting statutory histories of ADEA and
Id. at 174-75.
They placed great importance on the
fact that, while the 1991 amendments to Title VII “explicitly
authoriz[ed] discrimination claims [where] an improper
consideration was [only] ‘a motivating factor’ for an adverse
employment decision,” Congress neglected to amend the ADEA in a
similar fashion, even though the legislature amended both
Id. (“When Congress amends one
statutory provision but not another, it is presumed to have
acted intentionally . . . . As a result, the Court’s
interpretation of the ADEA is not governed by Title VII
decisions such as Desert Palace and Price Waterhouse.” (citing
EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 256 (1991))).
In 2013, the Supreme Court revisited this topic in Nassar,
133 S. Ct. at 2528.
In another 5-4 decision, the court rejected
the argument that the 1991 amendments which established a
“motivating factor” test for Title VII discrimination claims was
also applicable to Title VII retaliation claims.
2533 (citing 42 U.S.C. § 2000e–3(a)).
Id. at 2528,
The Supreme Court noted
that “[w]hen Congress wrote the motivating-factor provision in
1991, it chose to insert it as a subsection within section
2000e–2, which contains Title VII’s ban on status-based
discrimination, § 2000e–2(a) to (d), (l), and says nothing about
Id. at 2529.
In other words, the Justices
concluded “that Congress acted deliberately when it omitted
[Title VII] retaliation claims from” the motivating-factor
standard established for discrimination claims brought under the
Adding to this the premise that but-for is
the default causation standard under tort law, id. at 2525, the
court concluded that the appropriate causation standard for
Title VII retaliation claims is a but-for standard.
To hold otherwise, they argued, would go against Title
VII’s statutory history as well as its “design and structure.”
Id. at 2529.
FMLA’s Structure and Legislative History
The same argument can be made regarding the FMLA, which was
enacted in 1993, just two years after the 1991 amendments to
Title VII and the enactment of ADEA.10
When drafting the FMLA,
While it is true that the majority in Gross warned that
courts “must be careful not to apply rules applicable under one
statute to a different statute without careful and critical
examination,” Gross, 557 U.S. at 174 (internal quotation marks
omitted), the Justices also invited other courts to evaluate
carefully whether Title VII’s mixed motive causation test should
be readily imported into other statues. Id.
Congress neglected to authorize retaliation claims where an
improper consideration, an employee’s protected leave, was a
motivating factor for an adverse employment action.
U.S.C. § 2615(a).
Like the ADEA and Title VII’s retaliation
provisions, the FMLA contains no language allowing for a
Compare 29 U.S.C. § 2615(a), with 29
U.S.C. § 623(a)(1), 42 U.S.C. § 2000e–3(a).
majority’s logic in Nassar, this omission indicates Congress’s
intent that FMLA retaliation cases be subject to a but-for
See Lindh v. Murphy, 521 U.S. 320, 330
(1997) (acknowledging “the familiar rule that negative
implications raised by disparate provisions are strongest when
the portions of a statute treated differently had already been
joined together and were being considered simultaneously when
the language raising the implication was inserted”); Palmquist
v. Shinseki, 689 F.3d 66, 76 (1st Cir. 2012) (“That Congress
added ‘motivating factor’ language only to Title VII strongly
suggests that such language should not be engrafted by judicial
fiat onto other laws that Congress amended at the same time.”
Title VII’s discriminatory practices provisions use the
phrase “motivating factor.” 42 U.S.C. §§ 2000e–2(m), 2000e–
5(g)(2)(B). In contrast, the FMLA’s regulations incorporate the
term “negative factor.” 29 C.F.R. § 825.220(c). Courts,
however, appear to use the terms interchangeably, suggesting
that the two are synonymous. As such, this Court adopts that
(citing Gross, 557 U.S. at 174)); Tanca v. Nordberg, 98 F.3d
680, 683-84 (1st Cir. 1996) (“[B]ecause Congress addressed the
retaliation section elsewhere in the 1991 Act, but chose not to
do so in section 107(a) or (b), it would seem that ‘where
Congress intended to address retaliation violations, it knew how
to do so and did so expressly.’” (citations omitted)).
In fact, Congress explicitly modeled the FMLA’s retaliation
provision after Title VII’s:
Section 105(a)(2) makes it unlawful for an employer to
discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this
title. This “opposition” clause is derived from title VII
of the Civil Rights Act of 1964 (42 U.S.C. 2000e–3(a)) and
is intended to be construed in the same manner. Under
title VII and under section 105(a), an employee is
protected against employer retaliation for opposing any
practice that he or she reasonably believes to be a
violation of this title.
H.R. Rep. No. 103-8(I), at 46 (1993).
Accordingly, the First
Circuit has analyzed FMLA and Title VII retaliation claims
See Hodgens, 144 F.3d at 160 (“[FMLA retaliation]
issues are analogous to those raised in cases involving other
types of discrimination, such as Title VII . . . .”).
circuits have done the same.
See, e.g., Adams v. Anne Arundel
Cnty. Pub. Sch., 789 F.3d 422, 429 (4th Cir. 2015) (“Retaliation
claims brought under the FMLA are analogous to those brought
under Title VII.”); McFadden v. Ballard Spahr Andrews &
Ingersoll, LLP, 611 F.3d 1, 6 (D.C. Cir. 2010) (characterizing
the frameworks for FMLA retaliation and Title VII discrimination
as “essentially the same”); Hyde v. K.B. Home, Inc., 355 F.
App’x 266, 272-73 (11th Cir. 2009) (applying the McDonnell
Douglas framework to plaintiff’s Title VII and FMLA retaliation
Therefore, the more appropriate construction of the statute
based on the legislative history and statutory structure
supports the conclusion that retaliation cases brought under the
Act are subject to a but-for causation standard.
FMLA Textual Analysis
Textual interpretation of the Act also supports a but-for
This conclusion is anchored in the Supreme
Court’s reasoning in Gross and Nassar, so it will be helpful to
The ADEA, the relevant statute in Gross, states that “[i]t
shall be unlawful for an employer . . . to fail or refuse to
hire or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
29 U.S.C. § 623(a)(1) (emphasis added).
The majority in Gross concluded that the ordinary meaning of the
ADEA’s requirement that an employer took adverse action “because
of” age is that age was the reason that the employer decided to
557 U.S. at 176 (“[T]he words ‘because of’ mean ‘by reason
of: on account of.’”) (citing 1 Webster’s Third New
International Dictionary 194 (1966); 1 Oxford English Dictionary
746 (1933); The Random House Dictionary of the English Language
The Supreme Court took that to mean that
employment discrimination claims brought under the ADEA require
proof that but for the employee’s age, the employer would not
have taken the challenged employment action.
Title VII’s anti-retaliation provision, the relevant
statute in Nassar, uses the same expression as the pertinent law
Section 2000e–3(a) of Title VII, like section
623(a)(1) under the ADEA, makes it unlawful for an employer to
retaliate against an employee “because of” certain criteria.12
Nassar, 133 S. Ct. at 2528.
The Nassar court held that “[g]iven
the lack of any meaningful textual difference between [section
29 U.S.C. § 2000e–3(a) provides that:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
or applicants for employment, for an employment
agency, or joint labor-management committee
controlling apprenticeship or other training or
retraining, including on-the-job training programs, to
discriminate against any individual, or for a labor
organization to discriminate against any member
thereof or applicant for membership, because he has
opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing
under this subchapter.
2000e–3(a) and section 623(a)(1)], the proper conclusion . . .
is that Title VII retaliation claims require proof that the
desire to retaliate was the but-for cause of the challenged
Applying this reasoning to the FMLA is slightly less
straightforward, as the relevant provision of the statute uses
the word “for” in lieu of the phrase “because of.”
U.S.C. § 2615(a), with 29 U.S.C. § 623(a)(1), and 42 U.S.C. §
This difference, however, is immaterial.
ordinary meaning of the word “for” is synonymous with “because
See For, Merriam-Webster, https://www.merriam-
webster.com/dictionary/for (last visited Feb. 14, 2017) (listing
“because of” among definitions); For, Oxford English Dictionary,
(last visited Feb. 14, 2017) (defining “for” as “[o]f the cause
or reason” and “[b]ecause of, on account of”).
Importantly, Supreme Court jurisprudence has never
restricted but-for causation tests only to statutes using the
term “because of.”
Closely related terms such as “results
from,” Burrage v. United States, 134 S. Ct. 881, 889 (2014),
“based on,” Safeco Insurance Company of America v. Burr, 551
U.S. 47, 63 (2007), and “by reason of,” Bridge v. Phoenix Bond &
Indemnity Co., 553 U.S. 639, 653–54 (2008); Holmes v. Securities
Investor Protection Corp., 503 U.S. 258, 265–68 (1992), have
also been read to require but-for causation.
Consistent with this reading of the FMLA’s text, courts in
other circuits have conflated the language in section 2615(a)
with that of Title VII.
See, e.g., Olson v. Penske Logistics,
LLC, 835 F.3d 1189, 1195 (10th Cir. 2016) (“[Defendants] affirm
that [plaintiff] was not terminated because of his leave . . .”
in FMLA interference claim (emphasis added)); Jones v. Allstate
Ins. Co., No. 2:14-CV-1640-WMA, 2016 WL 4259753, at *4 (N.D.
Ala. Aug. 12, 2016) (“While the FMLA does not use the precise
phrase ‘because of,’ its use of the word ‘for’ is within the
range of phrases whose ordinary meaning indicates a ‘but-for’
causal relationship.”); Kauffman v. Federal Express Corp., 426
F.3d 880, 885 (7th Cir. 2005) (observing that retaliation
applies where a company seeks to punish an employee because he
asserted his FMLA rights) (same); Joyce v. Office of Architect
of Capitol, 966 F. Supp. 2d 15, 23 (D.D.C. 2013) (“As in Title
VII, to prove FMLA retaliation, a plaintiff must show that . . .
the employer took the action because of his protected activity.”
(emphasis added)); Sparks v. Sunshine Mills, Inc., No. 3:12-CV025440-IPJ, 2013 WL 4760964, at *17 n.4 (N.D. Ala. Sept. 4,
2013) (“Thus, the Supreme Court’s determination that the ‘but
for’ causation standard applies where an employee alleges
discrimination because he engaged in some protected activity
also applies in the FMLA context.” (emphasis added)).
The First Circuit has interpreted this language
On various occasions, the First Circuit has
interpreted section 2615(a) as requiring a plaintiff bringing a
FMLA retaliation claim to show that “the employer took the
adverse action because of a prohibited reason or for a
legitimate nondiscriminatory reason.”
Hodgens, 144 F.3d 160
(emphasis added); see also Carrero-Ojeda, 755 F.3d at 722 (“[A]n
employer cannot discharge an employee because she requests or
takes FMLA leave . . . . [T]he FMLA does not protect an employee
from discharge for any reason while she is on leave -- rather, .
. . it protects her only from discharge because she requests or
takes FMLA leave.” (emphasis added)).
On other occasions --
indeed, in the same opinion -- the First Circuit’s language has
suggested a lessened causation standard for FMLA retaliation
See Hodgens, 144 F.3d at 160 (“Nor may employers ‘use
the taking of FMLA leave as a negative factor in employment
actions, such as hiring, promotions or disciplinary actions.’”
(quoting 29 C.F.R. § 825.220(c)) (emphasis added)); CarreroOjeda, 755 F.3d at 722 (“To protect these rights, the FMLA and
its accompanying regulations make it unlawful for any employer
to, among other things: . . . ‘use the taking of FMLA leave as a
negative factor in employment actions’ . . . .” (quoting 29
C.F.R. § 825.220(c)) (emphasis added)).
This inconsistency can
perhaps be partially explained by the fact that, as noted supra,
the First Circuit has not yet addressed this narrow issue.
Two public policy considerations support a but-for
First, there is the “floodgate” argument.
See, e.g., Ellie Margolis, Closing the Floodgates: Making
Persuasive Policy Arguments in Appellate Briefs, 62 Mont. L.
Rev. 59, 73 (2001) (defining “‘floodgates of litigation’
argument” as one that “asserts that a proposed rule, if adopted,
will inundate the court with lawsuits”).
The Nassar majority
expressed concern about the fact that “claims of retaliation are
being made with ever-increasing frequency.”
Nassar, 133 S. Ct.
For the Supreme Court, this increasing number of
claims “siphon[s] resources from efforts by employers,
administrative agencies, and courts to combat workplace
The reasoning behind this concern is clear
Faced with a lessened causation standard, a rational
potential plaintiff would expect her chances of success in a
lawsuit to increase, since, for instance, courts might find it
more difficult to dismiss her claims at the pre-trial stage.
Id. at 2532.
This, in turn, would cause more plaintiffs to file
lawsuits than would normally be the case under a more rigorous
Whether the evidence supports this logic, however, demands
On the one hand, the Supreme Court’s
concern with the increasing number of retaliation claims seems
prima facie warranted.
From 1997 to 2016, the total number of
retaliation charges filed with the Equal Employment Opportunity
Commission (the “Commission”) grew steadily from 18,198 to
42,018, an increase of over 130% during the twenty-year period.
Charge Statistics FY 1997 Through FY 2016, U.S. Equal Emp’t
(last visited Feb. 16, 2017).
The increase is noticeable not
only in absolute terms, but also as a percentage of the total
number of discrimination-type charges filed with the Commission.
Today, retaliation charges constitute 45.9% of all charges filed
with the Commission compared to only 22.6% in 1997.13
On the other hand, there seems to be no clear association
between changes in the causation standard applicable in
employment disputes and the number of charges filed.
The significance of retaliation charges is also reflected
at the state level. Retaliation charges under Title VII, FMLA,
and other statutes, constituted 39.2% of all charges at the
Commission’s Massachusetts office in 2016. FY 2009 – 2016 EEOC
Charge Receipts for Massachusetts, Equal Emp’t Opportunity
te.cfm#centercol (last visited Feb. 14, 2017).
Nassar was decided in 2013, the total number of Title VII
retaliation claims filed with the Commission or in federal
courts remained fairly stable -- declining slightly from 31,208
in 2012 to 30,771 in 2014.
As these numbers suggest, it is
far from clear that “floodgate” concerns are justified.14
A “floodgate” worry further recedes when viewed in light of
the recent number of FMLA cases commenced in federal courts.
While the number of FMLA claims has increased steadily, there
was no marked explosion of filings post-Nassar.
and 2016, federal courts witnessed a threefold increase in the
number of federal FMLA cases commenced, from 404 to 1,198 cases.
Admin. Office of the U.S. Courts, Statistical Tables for the
The numbers also fail to paint a clear picture when
examining Title VII disputes in federal courts. In 2011, 15,255
civil rights employment lawsuits were commenced, while in 2015
that number dropped to 11,876. Admin. Office of the U.S.
Courts, Statistical Tables for the Federal Judiciary, Table C-2
(2011), available at http://www.uscourts.gov/statistics/table/c2/statistical-tables-federal-judiciary/2011/06/30;
Office of the U.S. Courts, Statistical Tables for the Federal
Judiciary, Table C-2 (2015), available at
http://www.uscourts.gov/statistics/table/c-2/statistical-tablesfederal-judiciary/2015/12/31. Although these figures are
consistent with the hypothesis that Nassar caused a decline in
the number of Title VII retaliation cases, there are not enough
data to confirm it. In particular, those statistics do not
differentiate between discrimination and retaliation claims.
See generally Kevin M. Clermont & Stewart J. Schwab, How
Employment Discrimination Plaintiffs Fare in Federal Court, 1 J.
Empirical Legal Stud. 429 (2004) (supplying an impressive
richness of data to support the argument that at both pretrial
and trial stages plaintiffs in federal employment discrimination
litigation lose disproportionately).
Federal Judiciary, Table C-2 (2012), available at
http://www.uscourts.gov/statistics/table/c-2/statistical-tablesfederal-judiciary/2012/12/31; Admin. Office of the U.S. Courts,
Statistical Tables for the Federal Judiciary, Table C-2 (2016),
available at http://www.uscourts.gov/statistics/table/c2/statistical-tables-federal-judiciary/2016/06/30 [hereinafter
District Court Cases Filed June 2015 and 2016].15
also make up a higher proportion of the total number of labor
law cases in federal cases.
In 2012, FMLA cases made up 0.15%
of all federal cases and 2.17% of all labor law federal cases.
Admin. Office of the U.S. Courts, Statistical Tables for the
Federal Judiciary, Table C-2 (2013), available at
and 6.23%, respectively.
In 2016, these figures were 0.41%
District Court Cases Filed June 2015
The problem is that this substantial increase
occurred mostly in 2013, during which the FMLA celebrated its
twentieth anniversary and raised awareness about the Act.16
The caseload statistics data tables for the 12-month
periods ending December 31, 2015 and 2016 are not yet available.
Of course, 2013 was also the year the Supreme Court
decided Nassar. Given that Nassar addressed Title VII claims
and the confusion and uncertainty about whether its holding
could be extended to FMLA cases suggests a mere coincidence.
Moreover, this increase in filed claims would be the exact
opposite of the expected result of Nassar.
Ben James, FLSA, FMLA Lawsuits Soaring, New Statistics Show,
Law360 (Mar. 11, 2015, 9:24 PM),
https://www.law360.com/articles/630168/flsa-fmla-lawsuitssoaring-new-statistics-show (attributing volume of FMLA claims
to awareness stemming from the Act’s anniversary, as well as a
2013 final rule from the Department of Labor, which expanded
protections under the statute).
From 2012 to 2013, the number
of federal FMLA cases commenced grew from 404 to 987, an
increase of over 144%.
Admin. Office of the U.S. Courts,
Statistical Tables for the Federal Judiciary, Table C-2 (2013),
available at http://www.uscourts.gov/statistics/table/c2/statistical-tables-federal-judiciary/2013/12/31.
From 2013 to
2014, the increase was only 12%, from 987 to 1,114 filings.
Admin. Office of the U.S. Courts, Statistical Tables for the
Federal Judiciary, Table C-2 (2014), available at
Since then, the number of FMLA
cases in federal courts has remained stable.
These figures suggest that courts should take floodgate
arguments, at least with respect to retaliation claims, with a
grain of salt.
See, e.g., Marin K. Levy, Judging the Flood of
Litigation, 80 U. Chi. L. Rev. 1007 (2013); Toby J. Stern,
Federal Judges and Fearing the “Floodgates of Litigation”, 6 U.
Pa. J. Const. L. 377 (2003).17
The second public policy consideration that supports a butfor causation standard for FMLA retaliation claims pertains to
consistency in how courts and Congress have addressed the topic
in other antidiscrimination statutes.
Title VII, for instance,
protects workers from “having opposed, complained of, or sought
remedies for, unlawful workplace discrimination,” such as those
motivated by “race, color, religion, sex, or national origin.”
Another, deeper, problem with a “floodgate” argument, as
discussed in Nassar, is the reasoning that a lessened causation
standard would increase the number of “frivolous” lawsuits. 133
S. Ct. at 2531. For the Supreme Court, more “frivolous”
lawsuits would raise the financial and reputational costs of “an
employer whose [lawful] actions were not in fact the result of
any discriminatory or retaliatory intent.” Id. at 2532. There
is, however, one way to interpret this argument in which it
turns out misguided. The worry that a lessened causation
standard would result in more “frivolous” lawsuits seems to rely
partially on an understanding of causation standards merely as
evidentiary thresholds, similar to standards of proof. That is
inaccurate. A causation standard is not “merely” an evidentiary
threshold. It is also a “substantive” provision that defines
which conduct is lawful or unlawful. See, e.g., Malone,
Ruminations on Cause-in-Fact, 9 Stan. L. REV. 60 (1956)
(defending the view that causation issues are permeated by
policy considerations). When courts or Congress reduce the
causation standard from but-for to negative or motivatingfactor, they are also increasing the number of conducts for
which an employer might be held liable, not simply increasing
the number of false positives. To see this point, consider the
fact that a court can require the party carrying the burden of
persuasion to prove different causation standards according to
different standards of proof. See W. Prosser, Handbook of the
Law of Torts, § 41, at 241-44 (4th ed. 1971). These are
independent mechanisms that serve different purposes.
Nassar, 133 S. Ct. at 2522; 42 U.S.C. §2000e-2(a).
against retaliation based on race, color, religion, sex, or
national origin is at the very core of our constitutional
These values stand on equal -- if not higher --
footing than the values the anti-discrimination provisions of
the FMLA protects.18
See Nevada Dep’t of Human Res. v. Hibbs,
538 U.S. 721, 728 (2003) (“The FMLA aims to protect the right to
be free from gender-based discrimination in the workplace.”).
It would, therefore, be misguided to treat the values protected
by the FMLA as more important, and, in turn, as worthy of
greater protection, than those values protected by Title VII.
That is exactly what would be the case were this Court, given
Nassar, to adopt a negative or motivating-factor causation
Other Courts’ Chevron Deference Approach to the
Notwithstanding the strong arguments in support of applying
a but-for causation standard, a small number of courts have
Commentators also read the FMLA as setting minimum labor
standards, besides combating employment discrimination. See,
e.g., Sandra F. Sperino, Under Construction: Questioning Whether
Statutory Construction Principles Justify Individual Liability
Under the Family and Medical Leave Act, 71 Mo. L. Rev. 71, 73
(2006) (“Congress ascribed two different purposes to the [FMLA].
First, Congress indicated that the FMLA established a new
minimum employment standard . . . . Second, the FMLA was
designed as an anti-discrimination statute to alleviate gender
discrimination in the workplace . . . .” (internal citations
reached the opposite conclusion, namely that FMLA retaliation
cases should be proven by a negative-factor standard.
the analysis adopted in Chase v. U.S. Postal Serv., 149 F. Supp.
3d 195, 209 (D. Mass. 2016) (Woodlock, J.) aff’d on other
grounds, Chase v. U.S. Postal Serv., 843 F.3d 553 (1st Cir.
Other courts have also adopted this approach.
Hunter v. Valley View Local Sch., 579 F.3d 688, 692-93 (6th Cir.
2009); Gonzalez v. Carestream Health, Inc., No. 12-CV-6151-CJS,
2016 WL 2609808, at *12 (W.D.N.Y. May 6, 2016) (“apply[ing] the
less rigorous standard of ‘motivating factor’ to the FMLA
retaliation claim”); Walters v. Mayo Clinic Health Sys.--Eau
Claire Hosp., Inc., 91 F. Supp. 3d 1071, 1080 (W.D. Wis. 2015)
(discussing the defendant’s motion for a new trial on the basis
that the lower court used the “negative factor” standard).
These courts assign controlling deference under Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), to a Department of Labor regulation, which
prohibits employers from “us[ing] the taking of FMLA leave as a
negative factor in employment actions . . . .”
29 C.F.R. §
825.220(c) (emphasis added).19
In Nassar, the Supreme Court held that the Equal
Employment Opportunity Commission’s view that Title VII
retaliation claims were subject to a motivating-factor causation
standard was unpersuasive under Skidmore v. Swift & Co., 323
U.S. 134 (1944). 133 S. Ct. at 2533. Here, unlike in Nassar,
Congress explicitly delegated rulemaking authority to the
Chevron deference “is rooted in a background presumption of
congressional intent: namely, ‘that Congress, when it left
ambiguity in a statute’ administered by an agency, ‘understood
that the ambiguity would be resolved, first and foremost, by the
agency, and desired the agency (rather than the courts) to
possess whatever degree of discretion the ambiguity allows.’”
City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1868 (2013)
(citing Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740–41
Deference is unjustified, however, when the reviewing
court applying the ordinary tools of statutory construction
determines that “Congress has directly spoken to the precise
question at issue.
If the intent of Congress is clear, that is
the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of
Chevron, 467 U.S. at 842–43.
See Note, The Rise of
agency. 29 U.S.C. § 2654. While this authority is “a very good
indicator of delegation meriting Chevron treatment,” United
States v. Mead Corp., 533 U.S. 218, 229 (2001), congressional
delegation is merely a necessary condition for Chevron
deference, not a sufficient one. See Arabian Am. Oil Co., 499
U.S. at 257 (declining Chevron deference because Congress did
not give the agency the power to “promulgate rules or
regulations” (quoting General Elec. Co. v. Gilbert, 429 U.S.
125, 141 (1976))); see also Christensen v. Harris Cnty., 529
U.S. 576, 596–97 (2000) (ruling that Chevron is “inapplicable .
. . where [there i]s doubt that Congress actually intended to
delegate interpretive authority to the agency”) (Breyer, J.,
Purposivism and Fall of Chevron: Major Statutory Cases in the
Supreme Court, 130 Harv. L. Rev. 1227 (2017).
Another court within this District concluded that “the FMLA
leaves ambiguous what causal standard governs in retaliation
actions and that the Department of Labor has supplied one
Chase, 149 F. Supp. 3d at 210.
Despite the First Circuit’s seemingly
inconsistent language when referring to the FMLA’s retaliation
provision, the Act is unambiguous.
As discussed supra, the
ordinary meaning of the word “for” in section 2615(a)(2) leaves
no room for the Department of Labor to interpret the FMLA as
requiring a lessened causation standard.
Even if this Court
concluded that the FMLA was “silent or ambiguous” with respect
to the causation standard in retaliation claims, Chevron still
requires this Court to inquire “whether the agency’s answer is
based on a permissible construction of the statute.”
As the discussion above makes clear, the Department of
Labor’s regulation is an impermissible construction of the FMLA,
based on the Act’s structure and text, as well as its
Moreover, the Department of Labor’s
official comment on the FMLA fundamentally contradicts its
“negative factor” regulation.
See Jones, 2016 WL 4259753, at
In its comment, the agency explicitly acknowledges that
since the FMLA followed Title VII, both should be “construed in
the same manner.”
The Family and Medical Leave Act of 1993, 60
Fed. Reg. 2180, 2218 (Jan. 6, 1995) (codified at 29 C.F.R. §
825.220) (“This . . . clause is derived from Title VII . . . and
is intended, according to the legislative history, to be
construed in the same manner.
Thus, FMLA provides the same
sorts of protections to workers who oppose . . . violations of
the FMLA as are provided to workers under Title VII.” (emphasis
As discussed supra, the Supreme Court held in Nassar
that the causation standard for Title VII retaliation claims is
If the FMLA is meant to provide workers with the same
protections as Title VII, but no more, then the causation
standard for retaliation claims under both statutes ought be the
Otherwise, workers would enjoy greater protections under
one statute than under the other.
This would contradict
Congress’s intent when it enacted the FMLA, as recognized by the
Department of Labor’s own words.
Therefore, the Department of
Labor’s regulation is not entitled to Chevron deference.
For the preceding reasons, this Court held that a general
verdict was inappropriate in this case and instead charged the
jury to return a special verdict under Federal Rule of Civil
This Court now concludes that retaliation
claims brought under the FMLA must be proved according to a butfor causation standard.
/s/ William G. Young
WILLIAM G. YOUNG
U.S. DISTRICT JUDGE
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