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Federal Appeals Court Leaves Family and Medical Leave Question for Another Day

Workers dodged a bullet when a federal appeals court rejected family leave employment discrimination claims without deciding important issues raised by the plaintiff's employer that could have greatly limited leave rights for older workers.


In 2004, Mary Kate Breeden informed her employer (Novartis) she would need to take maternity leave protected by the Family and Medical Leave Act (FMLA), after which (she alleges) she found her authority, responsibility, workload and status drastically reduced. 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 2008, Novartis made further changes that consolidated Breeden's territory with another. The company then terminated her.

Breeden asserted her firing constituted retaliation based on her use 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 awarded her almost $300,000 in damages; however, the trial court vacated that verdict and entered a judgment for Novartis. Both Breeden and Novartis appealed. Breeden's lost verdict is troubling; but Novartis' appeal posed an even greater threat to family and medical leave rights of older workers.

The parties disputed the strength of Breeden's evidence as grounds for her jury verdict, but AARP weighed in on another question: the extent to which the DOL's anti-retaliation regulations, filling in gaps in FMLA protections, are valid 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 that Congress has entrusted to the oversight of a specific agency.

AARP's brief challenged 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. 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," argued the brief.

The appeals court found that it did not need to address the "mixed motive" issue because the complaint failed on other grounds, leaving the larger question for another day.

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 their parents or other older family members. Allowing employers to penalize workers for using FMLA leave would seriously undermine these carefully considered rights.

Case Status

Breeden v. Novartis was decided by the U.S. Court of Appeals for the District of Columbia. Breeden has filed for a rehearing by that court.