Chase v. United States Postal Service ( 2016 )

United States Court of Appeals
For the First Circuit
No. 16-1351
ROBERT CHASE,
Plaintiff, Appellant,
v.
UNITED STATES POSTAL SERVICE; MICHAEL KING; AND UNITED STATES,
AS SOLE DEFENDANT ON COUNTS III, IV, AND V,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Barron, Selya, and Stahl,
Circuit Judges.
Lori A. Jodoin, with whom Rodgers, Powers & Schwartz LLP,
were on brief, for appellant.
Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellees.
David Conforto and Conforto Law Group, on brief for
Massachusetts Employment Lawyers Association as amicus curiae.
John Pagliaro and Martin J. Newhouse on brief for New England
Legal Foundation and Associated Industries of Massachusetts as
amicus curiae.
December 14, 2016
STAHL, Circuit Judge. The Family Medical Leave Act
(FMLA) allows an employee up to twelve weeks of leave, in a twelve-
month period, for a serious medical condition. 29 U.S.C. §
2612(a)(1)(D). Under the FMLA, an employee's absence from work
due to a personal health concern, or that of a spouse, child, or
parent, is protected from interference and retaliation by his
employer. 29 U.S.C. § 2615(a).
Appellant Robert Chase alleged that his employer, the
United States Postal Service (USPS), and supervisor Michael King,
terminated him from the Brookline, Massachusetts Post Office in
retaliation for taking FMLA leave. He brought interference and
retaliation claims under 29 U.S.C. § 2615, arguing that King and
USPS violated the FMLA by firing him while he was out of work on
protected leave.
Following a bench trial, the district court held that
King and the USPS did not violate the FMLA on the ground that King,
as the USPS decisionmaker, did not have the requisite knowledge of
the designation of Chase's medical leave necessary to hold
defendants liable under the FMLA. This appeal followed, and we
AFFIRM.
I. Facts & Background
Chase worked as a letter carrier at the USPS Brookline
Post Office for nearly fourteen years. During this time, Chase
never received a negative performance review nor was he subject to
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any disciplinary action. King, manager of the Brookline Post
Office, supervised Chase from 2005 until his termination on
September 30, 2011.
A. Accident and Leave of Absence
The accident leading to Chase's leave and allegedly
contributing to his termination occurred on July 21, 2010, when an
elderly woman fell asleep at the wheel of her car and struck
Chase's vehicle while he was parked during his lunch break. Chase
was taken to the hospital and diagnosed with a serious shoulder
injury including damage to his rotator cuff. King personally went
to the scene of the accident to observe the severity of the
accident and injury and to prepare a report of the incident.
King's report noted Chase's shoulder injury.
Following his injury, Chase applied for workers'
compensation, despite being discouraged from doing so by King.
This request was approved. Chase also applied for and was granted
FMLA leave. USPS mailed a Designation/FMLA Approval Notice to
Chase and to King which stated that "[Chase's] FMLA leave request
is approved. All leave taken for this reason will be designated
as FMLA leave."1 Pursuant to USPS policy, Chase opted for a
1 King claims that he never received the FMLA notice and that
he thought perhaps an office worker had filed the notice without
first showing it to him. He testified that he believed Chase's
leave status was either "injured on duty" (IOD) or "out on workers'
compensation" (OWCP), and that he assumed that Chase was not on
FMLA leave because that leave is often unpaid and he believed that
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continuation of pay and was fully compensated for the first 45
days of his leave, after which he received workers’ compensation
benefits amounting to two-thirds of his salary, tax-free, plus
health insurance. Chase's concurrent FMLA leave lasted from July
21, 2010 to October 12, 2010, but he remained on medical leave
until September 30, 2011, when he was terminated.
B. Workplace Tensions Between King and Chase
On several occasions, both before and during the course
of these events, King publicly mocked Chase and accused him of
faking injuries. In September of 2006, Chase had injured his knee
while on the job and subsequently missed a week of work. At that
time, in apparent response, King made an announcement over the
Brookline Post Office loudspeaker, "[w]ill Bob Chase, the injury
fraud specialist, please report to the office." In August of 2010,
a month after Chase's motor vehicle accident at issue in this case,
King posted a job opening on the office bulletin board advertising
a position for an "injury compensation specialist." King then
made an announcement mocking Chase: "[T]here’s a job posted on
the bulletin board for an[] injury compensation specialist since
you’re the biggest fraud when it comes to injuries." Brookline
Post Office employee Maria Constantino testified that she heard
King say that Chase was faking the 2010 shoulder injury he had
employees only used FMLA leave once they had exhausted all forms
of paid leave, which to his knowledge Chase had not.
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sustained in the car accident and heard King announce on multiple
occasions, "Can I have the carrier on Route 92 [Chase] who is
faking an injury come to the office, please?"
C. USPS Disciplinary Action
On September 18, 2010, while on FMLA leave, Chase was
arrested with his brother and charged with possession of cocaine
with intent to distribute and conspiracy to violate drug laws, in
violation of Mass. Gen. Laws ch. 94C, §§ 32A(a) and 40. The
arrests were publicized in a local newspaper, the Brookline Tab.
After seeing the article and arrest reports, King notified his
then-manager, Lori Bullen, about the arrests, saying, "[i]t would
be nice if we can proceed with something." Bullen forwarded King's
email to Labor Relations indicating that Chase was "out OWCP [on
workers' compensation] to boot."
Following the arrest Chase and King remained in fairly
regular communication. During one of these conversations, Chase
notified King that the criminal charges would soon be dismissed.
King then turned the conversation to Chase's medical leave and
began to threaten Chase with a workers' compensation fraud
investigation if he did not return to work. Several Brookline
Postal workers including Joseph DeMambro, the Chief Union Steward,
and another employee, Wanda Jackson, testified that King believed
that Chase was faking his current shoulder injury and that King
was often suspicious of employees who took medical leave.
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On January 18, 2011, King and Chase spoke over the
telephone for a pre-disciplinary interview, during which they
discussed how Chase's arrest and charges might affect his job.
Chase and King ceased communicating after Chase phoned King asking
for help to resolve an issue related to his medical leave and King
responded, "go [expletive] yourself."
On January 27, 2011, King's manager approved the request
that Chase be issued a Notice of Removal. On the following day,
Labor Relations prepared for King a Notice for "Failure to Perform
Duties in a Satisfactory Manner." King signed that Notice on
February 1, 2011, and issued it to Chase. Chase was still on
medical leave when he received the Notice of Removal. The
dismissal notice cited Chase's arrest and refusal to answer
questions during his pre-disciplinary interview. In response to
the notice, Chase filed a grievance through his union, but USPS
denied the grievance and his case proceeded to arbitration pursuant
to the union contract. Before the final arbitration hearing,
Chase's criminal case reached a favorable resolution when, on
August 31, 2011, the conspiracy charge was dismissed outright and
the charge of possession with intent to distribute was reduced to
a charge of simple possession, to be dismissed upon completion of
one year of pre-trial probation and random drug testing. The
grievance process ultimately reached its conclusion on September
30, 2011, when the arbitrator ruled against Chase. The arbitrator
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issued a final written decision, affirming Chase's removal on the
grounds that USPS had shown through clear and convincing evidence
that Chase had possessed a Class B illegal drug, which violated
USPS policy. He was officially terminated that same day.
D. The FMLA
The FMLA provides an employee suffering from a serious
injury or medical condition with up to twelve weeks of protected
leave, in a twelve-month period. 29 U.S.C. § 2612(a)(1)(D). An
employee is eligible for FMLA leave for each of the following
reasons:
(A) Because of the birth of a son or daughter of
the employee and in order to care for such son or
daughter.
(B) Because of the placement of a son or daughter with
the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter,
or parent, of the employee, if such spouse, son,
daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the
employee unable to perform the functions of the
position of such employee.
(E) Because of any qualifying exigency . . . arising out
of the fact that the spouse, or a son, daughter, or
parent of the employee is on covered active duty .
. . has been notified of an impending call or order
to covered active duty) in the Armed Forces.
29 U.S.C. § 2612(a)(1). In keeping with its comprehensive remedial
purpose "to help working men and women balance the conflicting
demands of work and personal life," the FMLA should be broadly
construed. See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 164
(1st Cir. 1998) (quoting Price v. City of Ft. Wayne, 117 F.3d 1022,
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1024 (7th Cir. 1997)); see also Tcherepnin v. Knight, 389 U.S.
332, 336 (1967) (noting that "remedial legislation should be
construed broadly to effectuate its purposes.")
FMLA leave may take many forms, including an unpaid leave
of absence, a paid vacation, personal leave, family leave, medical
leave, or sick leave. See 29 U.S.C. § 2612(c)-(d). FMLA leave
may also run concurrently with other types of paid leave such as
workers' compensation. 29 C.F.R. § 825.207(d)-(e). When making
a request for leave, "the employee need not expressly assert rights
under the FMLA or even mention the FMLA" for FMLA protection to
attach. 29 C.F.R. § 825.302(c).
An employer may not interfere with, restrain, or deny
the exercise of or the attempt to exercise any right provided under
the FMLA, nor may an employer discharge or discriminate against an
individual who takes FMLA leave. 29 U.S.C. § 2615(a); see also 29
C.F.R. § 825.220(c); Hodgens, 144 F.3d at 160 n.4. Additionally,
an employer may not include FMLA leave "as a negative factor in
employment actions ... ." 29 C.F.R. § 825.220(c). While the FMLA
itself does not explicitly contain a prohibition on retaliation
for taking leave, courts have interpreted the Act to have such an
implied prohibition. See Pagán-Colón v. Walgreens of San Patricio,
Inc., 697 F.3d 1, 8 (1st Cir. 2012).
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E. Procedural History
On June 29, 2012, Chase filed his Complaint in the United
States District Court for the District of Massachusetts. He
alleged FMLA interference (Count I) and FMLA retaliation (Count
II) in violation of 29 U.S.C. § 2615. In addition, Chase sued
King for intentional interference with advantageous business
relations (Count III), intentional infliction of emotional
distress (Count IV), and defamation (Count V). The United States
substituted itself for King for Counts III-V under the Westfall
Act, 28 U.S.C. § 2679, which allows the United States to step in
as defendant for one of its employees where the employee is sued
for damages as a result of an alleged tort committed within the
scope of his or her employment.
On August 30, 2012, USPS and King moved to dismiss all
claims. Chase opposed these motions and the court took them under
advisement. At the close of discovery the defendants moved for
summary judgment in their favor on all claims. Chase again opposed
defendants' motions. The district court heard oral arguments on
October 16, 2013. On November 4, 2013, the court granted summary
judgement on all claims with the exception of the FMLA retaliation
claim (Count II).
Count II proceeded to a bench trial on April 7-10, 2014.
On March 1, 2016, the district court entered judgement for USPS
and King, reasoning that the defendants could not have acted with
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retaliatory animus because King lacked the requisite knowledge
that Chase's leave was protected under the FMLA. Chase filed this
appeal on March 31, 2016.
II. Discussion
We review a district court's factual findings for clear
error and its legal holdings de novo. Industria y Distribuction
de Alimentos v. Trailer Bridge, 797 F.3d 141, 144 (1st Cir. 2015).
We find no clear error in the district court's finding that King
reasonably believed Chase was not out on FMLA leave, and we agree
with the district court that King's knowledge was insufficient to
support an FMLA retaliation claim.
To make out a claim for retaliation under the FMLA, a
plaintiff must show that the employer "took the adverse action
because of a prohibited reason [and not for] a legitimate non-
discriminatory reason." Hodgens, 144 F.3d at 160. In order to
make out a prima facie case of retaliation, the employee "must
show that (1) he availed himself of a protected right under the
FMLA; (2) he was adversely affected by an employment decision; (3)
there is a causal connection between the employee's protected
activity and the employer's adverse employment action." Id. at
161 (citing Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir.
1997)). Because the employer's intent in FMLA retaliation claims
is highly relevant, an employer cannot be found to have retaliated
against an employee for invoking his rights under the FMLA or
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taking FMLA leave unless the decisionmaker knew or should have
known that the employee had invoked those rights. See Ameen v.
Amphenol Printed Circuits, Inc., 777 F.3d 63, 70 (1st Cir. 2015).
This case turns on whether there was a causal connection
between the employee's protected activity (taking FMLA leave) and
the employer's adverse employment action (termination). On
appeal, Chase argues that the district court erred in determining
that King did not believe that Chase was out on FMLA leave, and,
therefore, cannot be held liable for retaliation under the FMLA.
Chase argues King knew he was injured and knew the FMLA covered
the first twelve weeks of his medical leave. Further, Chase
asserts that even if King did not have direct knowledge of his
FMLA leave, USPS's institutional knowledge binds the organization.
We address these arguments in turn.
A. Retaliatory Animus
Chase contends that King knew he was on FMLA leave as a
result of his on-the-job motor vehicle accident and argues the
district court committed clear error in holding otherwise. It is
undisputed that King was aware of Chase's injury, that he visited
the scene of the accident and made a report, and that he was aware
that Chase was out of work on medical leave; however, there is no
evidence that King knew or should have known that Chase was out on
protected FMLA-designated leave. Consequently, we find that Chase
does not have a valid claim for FMLA retaliation because he failed
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to prove that King acted with retaliatory animus towards his FMLA
leave. See Ameen, 777 F.3d at 70 (holding that to succeed on an
FMLA retaliation claim, a plaintiff "must show that the retaliator
knew about [his] protected activity——after all, one cannot have
been motivated to retaliate by something he was unaware of."
(quoting Medina–Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st Cir.
2013) (alteration in original))).
It is true beyond a doubt that King knew that Chase had
suffered a serious injury, one that was both covered by workers'
compensation and FMLA-eligible. Indeed, the injury ultimately
resulted in FMLA leave being granted. However, the case presents
an unusual situation in which King also reasonably believed that
Chase was out on paid workers' compensation medical leave, rather
than FMLA-designated leave. For this belief, King relied on a
computer program that listed Chase as either "injured on duty" or
"out on workers' compensation." In addition to the USPS internal
computer system, which made no mention of Chase having been granted
FMLA leave, King also testified that he neither received nor saw
the FMLA notice that was allegedly mailed to both Chase and King.
King also reasonably concluded, as the district court
found, that "even though seriously injured, it would not make sense
[for] Chase to take FMLA leave until——at the earliest——his paid
leave expired," Chase v. U.S. Postal Serv., 149 F. Supp. 3d 195,
212 (D. Mass. 2016), because using FMLA leave concurrently with
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the more advantageous coverage available under workers'
compensation would be redundant. In other words, given that King
"reasonably believed that the FMLA's protections had been
declined," id., he cannot be held liable in this case for a failure
to inquire further into Chase's leave status, see, e.g., Dotson
v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir. 2009) (FMLA
retaliation can be found where the employer "was on notice that
[the employee] was inquiring about his FMLA options" and "did not
fulfill its duty to inquire about whether his leave should be
classified as FMLA-protected"); 29 C.F.R. § 825.302(c) ("In all
cases, the employer should inquire further of the employee if it
is necessary to have more information about whether FMLA leave is
being sought by the employee.") (emphasis added).
Moreover, even King's workplace comments over the
loudspeaker and to various employees, inappropriate as they may
have been in polite company, or for that matter in employee
relations, support the district court's conclusion that King
actually believed that Chase was receiving workers' compensation
and had not taken FMLA leave. As the district court sustainably
found, "it was the workers' compensation leave——not the concurrent
FMLA leave——which angered King and contributed to Chase's
termination." Chase, 149 F. Supp. 3d at 213. Liability for
retaliation under the FMLA is restricted to actions taken out of
animus towards FMLA-protected leave. See 29 C.F.R. § 825.220(c)
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(an employer may not consider an employee's use of FMLA leave "as
a negative factor in employment actions").2 Chase's arguments, to
the extent that they establish King's animus towards Chase for
taking workers' compensation leave, are insufficient to show that
King acted with any retaliatory animus in violation of the FMLA
given that King had no actual or constructive knowledge that the
FMLA had been invoked.
To be clear, actual knowledge on the part of an employer
that a particular employee has specifically invoked the FMLA's
statutory protections, as opposed to having taken leave for an
injury or other condition which happens to be FMLA-protected, is
2 We note that there is some tension in the case law as to
the appropriate causation standard to apply in FMLA retaliation
cases. The currently operative Department of Labor Regulations
(DOL), as indicated above, prohibit an employer from using an
employee's decision to take FMLA leave as a "negative factor" in
employment actions. 29 C.F.R. § 825.220(c). We have previously
held that DOL regulations interpreting the FMLA are entitled to
deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837 (1984). See, e.g., Hodgens, 144 F.3d at 160
n.4; Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d
325, 331 (1st Cir. 2005). However, the Supreme Court has held
that Title VII retaliation claims "must be proved according to
traditional principles of but-for causation . . . [which] requires
proof that the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of the employer."
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533
(2013). The district court concluded that Nassar had not changed
the landscape for FMLA claims, and that the "negative factor" test
promulgated by DOL continued to apply. Given that Chase is unable
to prevail under even the more lenient "negative factor" test, we
save for another day the question of Nassar's impact on FMLA
jurisprudence with respect to the required causation standard, and
take no position on the district court's decision to grant the DOL
regulations continued Chevron deference.
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not the sine qua non of FMLA retaliation liability. After all, as
the Department of Labor Regulations instruct, "the employee need
not expressly assert rights under the FMLA or even mention the
FMLA" to provide his employer with notice, 29 C.F.R. § 825.302(c),
and as we noted in our first encounter with FMLA retaliation, the
relevant inquiry in such cases is "whether there [was] sufficient
evidence . . . for a jury to conclude that [the plaintiff's]
discharge was motivated by retaliation for his having availed
himself of a right protected by the FMLA, namely, the right to
take medically necessary leave time." Hodgens, 144 F.3d at 169.
However, in the case before us, not only was King
oblivious to the statutory character of the leave in question, but
he had a reasonable and well-founded belief that Chase had not
availed himself of FMLA protection, because it would not have made
sense for him to do so while he was already receiving a more
beneficial package under the workers' compensation regime. The
information and records to which King was privy appeared to
indicate only that Chase was receiving "paid leave [in the form of
workers' compensation], under terms more favorable than the FMLA
provides," Chase, 149 F. Supp. 3d at 212. Although this case is
unusual in that the injury in question qualified Chase for FMLA
leave, we do not believe that the district court clearly erred in
concluding that the particular chronology and facts of this case
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rendered King's belief that Chase had declined to invoke FMLA
protection a reasonable one.
B. General Corporate Knowledge
Finally, Chase argues that even if King reasonably
believed that Chase was not out on FMLA leave, USPS had "general
corporate knowledge" of the FMLA designation, which binds its
conduct as a matter of law. Alston v. N.Y.C. Transit Auth., 14 F.
Supp. 2d 308, 311 (S.D.N.Y. 1998). Chase's argument is inherently
flawed because precedent does not support his basic proposition
that corporate or managerial knowledge can override a
decisionmaker's lack of knowledge in FMLA retaliation cases, for
reasons we explain below.
In Ameen, this court declined to find retaliatory
conduct because the plaintiff could not show that the decisionmaker
knew that the plaintiff was engaging in protected activity, even
though others in the company hierarchy did. 777 F.3d at 70 (citing
Medina–Rivera, 713 F.3d at 139); see also Pomales v. Celulares
Telefónica, Inc., 447 F.3d 79, 85 (1st Cir. 2006) ("[T]here must
be proof that the decisionmaker knew of the plaintiff's protected
conduct when he or she decided to take the adverse employment
action."). Other circuits echo this decisionmaker knowledge
requirement. See Henderson v. Chrysler Grp., LLC, 610 F. App'x
488, 496 (6th Cir. 2015); Brungart v. Bellsouth Telecomms., Inc.,
231 F.3d 791, 800 (11th Cir. 2000); Cohen v. Fred Meyer, Inc., 686
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F.2d 793, 797 n.5 (9th Cir. 1982).3 Based on these cases, there
is no precedent to support Chase's proposition that USPS's general
knowledge can substitute for King's lack of knowledge for purposes
of this FMLA retaliation analysis.
III. Conclusion
While King clearly demonstrated animus towards Chase for
his absence, that animus was directed exclusively towards Chase's
workers' compensation leave, not his FMLA leave. Because King
reasonably believed that Chase was not out on FMLA leave, we AFFIRM
the district court's finding that King lacked the requisite
knowledge necessary to hold him liable for retaliation in violation
of the FMLA. Affirmed.
3To the extent that these cases involve retaliatory actions
based on statutes other than the FMLA, they are still informative
because the discrimination analysis under each is highly
analogous, if not identical, to that under the FMLA.
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