This is likely the most ridiculous defense argument to surface in a published opinion in 2008: that the anti-retaliation section of the Family and Medical Leave Act does not, in fact, â€œprohibit retaliation against an employee who takes FMLA leave.â€ The Sixth Circuit inters it, without honors.
Bryant v. Dollar General Corp., No. 07-5006 (6th Cir. Aug. 15, 2008): Hereâ€™s a summary of the facts presented at trial, which plaintiff won â€”
â€œIn 2001, Bryant began working for Dollar General as a senior programmer analyst in its financial marketing department. In 2002, Bryant was diagnosed with Type II diabetes, high blood pressure, and a heart condition, and Bryantâ€™s supervisors were aware of her conditions. . . .
â€œIn early May 2004, Bryant completed paperwork for FMLA leave; shortly afterward, Dollar General began a disciplinary process against her, allegedly for her involvement in an office argument in late April 2004. Bryant took FMLA leave from May 12 to 14 and from May 19 to May 23, 2004, and Dollar General fired her on May 27, 2004. Bryant testified in a deposition and at trial that, at the time Dollar General fired her, a supervisor commented on her health problems, stating that â€˜[b]ecause of your health, I donâ€™t think you can do the jobâ€™ . . . .â€
The jury returned a verdict of $73,942.68, plus liquidated (double) damages for wilfulness and interest.
On appeal, as it did below, Dollar Generalâ€™s counsel argued that â€œthe statutory text of the FMLA does not prohibit retaliation of the type that Bryant alleged and that the jury found occurred. That is, Dollar General asserts that the FMLA does not bar an employer from firing an employee because that employee took FMLA leave. Dollar General instead contends that the relevant statutory text pertains only to situations in which an employee has â€˜oppos[ed] any practice made unlawfulâ€™ by the FMLA. 29 U.S.C. Â§ 2615(a)(2).â€
In full, Â§ 2615 provides:
â€œ(a) Interference with rights
â€œ(1) Exercise of rights
â€œIt 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.
â€œIt shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.
â€œ(b) Interference with proceedings or inquiries
â€œIt shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual-
â€œ(1) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this subchapter;
â€œ(2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this subchapter; or
â€œ(3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this subchapter.â€
Citing a Department of Labor interperative regulation (29 C.F.R. Â§ 825.220(c)), case authority from inside and beyond the Sixth Circuit, and the â€œnature of the statutory scheme and the FMLAâ€™s legislative history,â€ the panel conclusively rejects Dollar Generalâ€™s argument:
â€œAlthough Dollar General asserts that no other defendant has advanced its statutory interpretation argument and that its attack on the existence of a retaliation claim for taking FMLA leave under Â§ 2615 presents a case of first impression, the asserted failure of other defendants to raise this argument may not be an accident. Dollar Generalâ€™s reading of the statute would essentially render the FMLA a nullity. Their interpretation would require us to believe that â€” despite including statutory provisions granting eligible employees the â€˜rightsâ€™ to take up to twelve weeks of unpaid leave in a twelve-month period and to be restored to their prior positions or equivalent positions upon their return â€” Congress wished to erect no obstacle to prevent employers from terminating employees who exercise their newly granted â€˜rights.â€™ Established principles of statutory interpretation caution against interpretations that â€˜lead to internal inconsistencies, an absurd result, or an interpretation inconsistent with the intent of Congress.'â€
I can only wonder whether â€” in the courage of its convictions â€” the defendant will seek review in the U.S. Supreme Court, especially after a term where the Court twice implied an anti-retaliation remedy into two statutes (Â§ 1981 and the federal sector provisions of the ADEA) with no express language in sight?