DISTINCTION BETWEEN FMLA INTERFERENCE & FMLA RETALIATION CLAIMS
FMLA claims for interference and retaliation differ in that the elements of proof for each claim is different. The two theories of recovery under FMLA are codified at 29 U.S.C. § 2615(a)(1) – an interference or entitlement claim; and at 29 U.S.C. § 2615(a)(2) – retaliation (or discrimination) theory. The distinction between these two theories is important because the elements and the burden of proof for each type of claim is different.
FMLA INTERFERENCE CLAIM
To state a claim for interference under the FMLA, a plaintiff must allege: “(1) that [s]he was entitled to FMLA leave, (2) that some adverse action by the employer interfered with h[er] right to take FMLA leave, and (3) that the employer’s action was related to the exercise or attempted exercise of h[er] FMLA rights.” Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007)(quoting Jones v. Denver Pub. Sch., 427 F.3d 1315, 1319 (10th Cir. 2005)).
FMLA RETALIATION CLAIM
To state an FMLA retaliation claim, a plaintiff must allege that: “(1) she engaged in a protected activity; (2) [the employer] took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the protected activity and the adverse action.” Campbell v. Gambro Healthcare, supra, 478 F.3d at 1287 (quoting Metzler v. Fed. Home Loan Bank, supra, 464 F.3d at 1171). In addition, retaliation claims are analyzed under the burden-shifting architecture of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), whereas the employer bears the burden of proof on the third element of an interference claim once the plaintiff has shown his or her FMLA leave was interfered with. Campbell v. Gambro Healthcare, supra, 478 F.3d at 1287.
FMLA claims for interference and retaliation differ with respect to the timing of the adverse action alleged. “In order to satisfy the second element of an interference claim, the employee must show that she was prevented from taking the full 12 weeks’ of leave guaranteed by the FMLA, denied reinstatement following leave, or denied initial permission to take leave.” Campbell v. Gambro Healthcare, supra, 478 F.3d at 1287 (citing Metzler v. Fed. Home Loan Bank, supra, 464 F.3d at 1181; 29 C.F.R. § 825.216(a)(1)). “In contrast, a retaliation claim may be brought when the employee successfully took FMLA leave, was restored to her prior employment status, and was adversely affected by an employment action based on incidents post-dating her return to work.” Campbell v. Gambro Healthcare, supra, 478 F.3d at 1287 -88 (citing Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1136-38 (10th Cir. 2003)). A retaliation claim may be brought when the employee “was adversely affected by an employment action based on incidents post-dating her return to work”. Campbell v. Gambro Healthcare, supra, 478 F.3d at 1287-8. So, in contrast to an interference claim, a retaliation claim can be brought after the employee successfully took FMLA leave and was restored to her prior position, and thereafter was subjected to an adverse employment action after returning to work.
Contact Denver Employment Attorney Gregory A. Hall if you were terminated for exercising your FMLA rights or if your employer interfered with your right to take FMLA leave.