Family and Medical Leave Act Claim in a Mixed-Motive Case.

April 12, 2017

Joseph Egan worked for the Delaware River Port Authority from July 2008 until October 2012. His primary responsibility was to manage fleet assets such as police vehicles, heavy equipment, and other vehicles. In March 2012, Egan was transferred to the Engineering Department and began reporting to Michael Venuto. Egan testified that the frequency of his migraine headaches increased when he transferred to the Engineering Department. When he applied for time of under the Family and Medical Leave Act [FMLA] in April 2012. The Port Authority approved Egan’s request for intermittent FMLA leave.

In July 2012 problems began to arise because Egan was recording the “approximate” number of hours he worked, rather than the actual number of hours he worked and took FMLA leave. The discrepancy in Egan’s actual working hours and his recorded hours seemed to cause problems in his department.”

In August 2012, Venuto determined that he would not retain Egan. Mr. Egan, while on FMLA leave, was informed that his position was being eliminated, and he was terminated.

Egan filed a civil action in United States District Court for the Eastern District of Pennsylvania against the Delaware River Port Authority, (No. 16-1471 U.S. Court of Appeals Third Circuit.) The Egan alleged that the Port Authority discriminated against him by violating several sections of Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Family and Medical Leave Act.

A jury found that the Delaware River Port Authority had not violated his rights. Mr. Egan appealed the adverse decision to the United States Court of Appeal for the Third Circuit. On appeal Mr. Egan alleged, that the District Court erred by: (a) refusing to give a mixed-motive jury instruction in connection with his FMLA claim; and (b) excluding the testimony of one of Egan’s co- workers.


Whether the plaintiff had to prove direct evidence of retaliation to pursue a mixed- motive theory of liability under a FMLA. (a ‘mixed-motive’ case is a claim that an employment decision was based on both legitimate and illegitimate reasons).


The Department of Labor had authority to promulgate regulations addressing the situation. The language of the regulation permits a plaintiff to rely on a mixed-motive theory so long as the evidence, direct or circumstantial, would permits a reasonable juror to conclude that the use of FMLA leave was a negative factor in the employer’s adverse employment decision.


When a party questions a jury instruction the appellate court looks to determine whether the instruction misstated the applicable law.

The appellate court had to determine whether the Department Of Labor properly exercised its authority to promulgate the regulation, if it did, then whether the regulation was a reasonable construction of the FMLA.

The language of the FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this subchapter,” including the right to seek or use FMLA leave. 29 U.S.C. § 2615(a)(1).

The statute however does not provide for a retaliation claim, because the term “interfere with” is susceptible to multiple interpretations. Thus, the statutory language does not directly address whether retaliation is among the actions an employer is prohibited from taking under the FMLA.

Because congress had not addressed the question directly, the court looked to determine if the Department of Labor’s interpretation of §2615 to include prohibiting retaliation “is based on a permissible construction of the statute.”

The DOL identified § 2615(a)(1) as the source of the prohibition against retaliation and promulgated a regulation that made retaliation for exercising FMLA rights unlawful. The regulation, 29 C.F.R. § 825.220(c), states

“the Act prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights,” and further states that “employers cannot use the taking of FMLA leave as a negative factor in employment actions.” 29 C.F.R. § 825.220(c).

The court concluded that §825.220(c) is a reasonable interpretation of § 2615(a)(1). The Department Of Labor’s interpretation was consistent with the purposes of the FMLA, which include “entitling employees to take reasonable leave for medical reasons” without interference. 29 U.S.C. §§ 2601(b)(2), 2615(a)(1);

The regulation precludes an employer from placing negative weight on the use of FMLA leave when making an employment decision. Under the regulation, “employers are barred from considering an employee’s FMLA leave ‘as a negative factor’ in employment decisions.” “An employee does not need to prove that invoking FMLA rights was the sole or most important factor upon which the employer acted.”

Thus, under the regulation, an employee who claims retaliation and seeks to proceed under a mixed-motive approach must only show that his or her use of FMLA leave was “a negative factor” in the employer’s adverse employment action.

The court further found that the court did not abuse its discretion when it stopped plaintiff’s co-worker from testifying.

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