Parking: June 2010 - 10

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Legal Matters Continued

by prior deficiencies that, whenever they were discovered, would have prompted demotion or discharge whether or not the employee took FMLA leave. Moreover, future individuals who seek FMLA leave would have no reason to fear demotion or discharge upon their return, unless they, too, had been professionally deficient. This distinction between but-for and proximate causation makes good sense in the FMLA context. Holding that butfor causation is somehow sufficient to support an FMLA claim would permit wanton abuse of the FMLA with perverse consequences. For instance, Schaaf’s suggested reading of the statute would effectively protect deficient employees from adverse employment actions, such that those workers could actually attain job security by seeking leave under the FMLA. These employees could take leave and actually hope their employers uncover evidence of their transgressions while they are away. If such evidence were revealed, the statute would prevent their employer from ever taking adverse action against them, as the leave would always be the but-for cause of the discovery of that evidence. Such a laughable result is not supported by policy, by common sense, or, most importantly, by the statute itself. Citing decisions from other courts that addressed the same issue, the Eleventh Circuit dismissed the interference claim.

The Court then turned to the retaliation claim. To succeed under this theory, Schaaf had to show that GSK intentionally “discriminated against [her] because [s] he engaged in activity protected by the Act.” Schaaf presented a prima facie case of retaliation based on the fact that she was demoted after taking FMLA leave. The burden then shifted to GSK to show it had legitimate non-retaliatory reasons for its actions. The Court found that GSK had readily satisfied this burden: “GSK produced testimony regarding Schaaf’s poor management practices, astringent leadership style, and inability to communicate effectively with her subordinates.” GSK then explained that it learned of these deficiencies while Schaaf was on leave, and accordingly addressed the issue when Schaaf returned. “These performance-related factors indicate that Schaaf’s demotion was for legitimate reasons unrelated to her FMLA leave; as a result, GSK has satisfied its burden of providing independent, nondiscriminatory bases for the adverse employment action.” The Court concluded that Schaaf could not show that these reasons were pretextual, so it dismissed her retaliation claim. The Schaff case adds more authority to the proposition that employers may take adverse action against employees on FMLA leave even if they learn of the issues underlying the adverse action during the leave. However, the burden will be on the employer to prove that the adverse actions were not taken because the employee took the leave. 

National Parking Association PArkINg June 2010

Parking: June 2010

Table of Contents for the Digital Edition of Parking: June 2010