Is FMLA Retaliation Legal If You Don’t Know You Are Retaliating?

Is retaliation illegal if the employer is unaware that the target employee is protected?  Often, the answer is yes due to failure to inquire further but in this unusual case, the supervisor’s ignorance resulted in a free pass for the employer.

Robert Chase, a U.S. Postal Service (USPS) mail carrier, filed for workers compensation benefits and a Family and Medical Leave Act (FMLA) leave after a work-related shoulder injury. Chase’s supervisor, Michael King, claimed he never received notice of Chase’s FMLA leave and believed only that he was “out on workers’ comp.”

Supervisor Delivers Insults and Termination

For whatever reason, King had a long history of tormenting Chase (and apparently others) for allegedly faking injuries. He would announce over the facility’s loudspeaker that he wanted “Bob Chase, the injury fraud specialist” to report to his office or would broadcast for “the carrier on Route 92 [Chase] who is faking an injury” to come see him.  At one point, King posted a notice of a job opening for an Injury Compensation Specialist and remarked that Chase would be perfect for the job since he was the “biggest fraud when it comes to injuries.”

Two months after the injury, Chase and his brother were arrested on drug charges. King brought this to his manager’s attention and suggested that “[i]t would be nice if we can proceed with something.”  King’s manager eventually approved Chase’s termination, at which time King sent him a Notice of Removal for “Failure to Perform Duties in a Satisfactory Manner.”

Chase grieved the discharge through his labor union, who took the case to arbitration. While the arbitration was pending, Chase’s criminal charges were dropped except for a single charge of simple drug possession that could be dismissed in one year if Chase satisfied the terms of his probation and passed a series of random drug tests.  Even so, this was enough for the arbitrator to sustain the termination on the grounds that Chase had possessed a Class B illegal drug, which violated USPS policy.

Letter of the Law Favors Employer

Chase sued in federal court claiming, among other things, that his termination interfered with his FMLA rights and was retaliatory for his exercise of those rights.  The judge quickly marked “Return to Sender” on all of Chase’s claims except for FMLA retaliation, which he allowed to proceed to trial.  Eventually, Chase was left holding the bag on this claim as well when the judge ruled that King and the USPS could not have retaliated against Chase for taking FMLA leave since King never knew that Chase had actually invoked FMLA rights.

Chase appealed the ruling to the First Circuit Court of Appeals, arguing that King knew that Chase was injured and that he was off work for medical reasons so he should have known that his absence from work was covered by FMLA.  The Appeals Court had some sympathy for Chase’s position, noting that under Department of Labor (DOL) Regulations, “the employee need not expressly assert rights under the FMLA or even mention the FMLA” in order to place the employer on notice that FMLA’s protections are being sought.  Instead,  the employer should inquire further, and obtain additional details if need be, to determine whether FMLA leave is being sought.

However, the court explained that this was not a situation where the employer failed to make the necessary inquiry, was “oblivious” to the employee’s rights or simply did not know the law.  Instead, they found that King had a “reasonable and well-founded belief” that Chase affirmatively had elected not to invoke FMLA.  Therefore he simply could not have formed the required intent to retaliate based on the exercise of protected rights.  They based this conclusion on the following evidence:

–  King’s knowledge of Chase’s employment status came only from looking at a USPS computer program that listed Chase as either “injured on duty” or “out on workers’ compensation.” There was no reference to FMLA at all.

–  King testified the he never received the FMLA notice that was allegedly mailed to both Chase and King.

–  Most importantly, King credibly testified that he thought employees could delay using unpaid FMLA leave until after their paid workers compensation had expired.  Since Chase was listed as being on workers compensation leave only, King concluded that he must have declined FMLA coverage as of the time of the termination.

In short, the issue was not that King was unaware that Chase was on FMLA; he actively and palpably concluded that he was not. As such, he could not have decided to retaliate against Chase on that basis.

Even King’s fondness for broadcasting insulting remarks about Chase supported the determination that he was not biased against Chase because of the FMLA leave.  King’s insults were directed at Chase’s status as a worker on limited duty, which relates to Chase’s workers compensation claims, not to his desire for time off from work under FMLA.

As a result, the Court of Appeals concluded that King could not have retaliated against Chase for taking FMLA because he affirmatively believed that Chase had not invoked those rights.

Final Argument is Just Junk Mail

Chase took one more shot, claiming that even if King did not know of his FMLA status, the USPS as an entity knew he was on FMLA leave and this “corporate knowledge” was sufficient to meet the standard for proving intent to retaliate.  The court stopped delivery on this argument, however, by observing that the vast majority of courts around the country require that the actual decision-maker must have knowledge of the protected rights tin order to be held liable for intentional retaliation.

Bottom Line

This is a very curious case.  For one thing, a claim of retaliation for seeking workers compensation benefits would ordinarily be brought under these circumstances.  However, since Chase worked for the USPS, he was not covered under the workers compensation laws of Massachusetts (where the case arose) but rather, under the Federal Employees’ Compensation Act, which does not appear to permit a private lawsuit for retaliation.

In Minnesota, this would be the first cause of action we would anticipate in this fact setting.  Minnesota Statutes Section 176.82 specifically states:

Any person discharging or threatening to discharge an employee for seeking workers’ compensation benefits or in any manner intentionally obstructing an employee seeking workers’ compensation benefits is liable in a civil action for damages incurred by the employee…” 

It is also curious that a supervisor could behave so badly toward his employees and get away with it.  Admittedly, it is difficult to terminate a federal employee but seriously, how could King be allowed to keep haranguing his employees as he did?

The most curious aspect of the case is the notion that the supervisor’s extreme misunderstanding of the employee’s status could insulate the employer from a retaliation claim.  As noted above, employers ordinarily cannot escape liability merely by asserting that the employee never specifically mentioned FMLA or that they were not sure that FMLA applied.  A duty of further inquiry arises when the employer has sufficient information to believe that FMLA might be in the picture.

However, where the employer can demonstrate a compelling case for believing that the employee had affirmatively declined FMLA protections, they might be able to convince a judge or jury that they could not have formed the legally mandated intent to retaliate on that basis.  This will be the rare case, and the decision should not be viewed as a turning point in FMLA retaliation litigation but rather, a curiosity to keep our eye on.