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Breeden v. Novartis Pharmaceuticals

AARP Asks Federal Appeals Court to Uphold Jury Verdict for Worker

AARP filed a brief on behalf of a worker whom a jury found had been retaliated against for using federally-protected family and medical leave.


In 2004, sales associate Mary Kate Breeden informed her employer Novartis that she would need to take maternity leave covered by the federal Family and Medical Leave Act (FMLA), after which (she alleges) she found her authority, responsibility, workload, and status drastically reduced, ostensibly due to a realignment of sales territories. In March 2005, Breeden began her maternity leave taking accrued vacation days and unpaid FMLA leave days. After she returned to work, she says she found that her pre-alignment territory had not been restored and she was told those changes were permanent. In January 2008, further changes consolidated her territory with another, and Breeden was terminated.

Breeden sued, asserting retaliation based on her invocation of the FMLA. She relied on U.S. Department of Labor (DOL) regulations specifically protecting employees from retaliation based on use of FMLA leave. A jury ruled for Breeden and awarded her almost $300,000 in damages; however, the trial court entered a judgment for Novartis notwithstanding the verdict. Breeden appealed, and Novartis cross-appealed the jury verdict.

The parties dispute the strength of Breeden’s evidence; but AARP has weighed in on another question: the extent to which the DOL’s anti-retaliation provisions are legitimate and entitled to deference by the courts. AARP’s “friend of the court” brief, filed by attorneys with AARP Foundation Litigation and the National Employment Lawyers Association, cites the long history of courts’ deference to regulations implementing federal laws like the FMLA, which Congress has entrusted to the oversight of a specific agency.

AARP’s brief challenges Novartis’ claims that a 2009 Supreme Court ruling in an Age Discrimination in Employment (ADEA) case, Gross v. FBL, imposes a standard of proof not reflected in jury instructions in this case. AARP points out that the FMLA and ADEA are two completely different laws. Among other distinctions, the ADEA (like other civil rights laws) is concerned with who plaintiffs are while the FMLA is concerned with what plaintiffs do. “While employees can not change their race or sex, they can decide whether to exercise their FMLA rights,” AARP argues in the brief. “This concept that the exercise of rights can be easily chilled has led the Supreme Court to afford broader protection to anti-retaliation provisions than substantive anti-discrimination statutes.”

What’s at Stake

The FMLA — which allows eligible workers to take time off without pay to care for their own or their families’ significant medical needs — is particularly important for older workers who may need the time to care for spouses or their own medical needs, as well as for younger workers who may need to take unpaid leave in order to care for their parents or other older family members with serious medical conditions. Allowing employers to penalize workers for using FMLA leave would seriously undermine these carefully considered rights.

Status of the Case

Breeden v. Novartis Pharmaceuticals is before the US Court of Appeals for the District of Columbia Circuit.

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