A former employee alleges that he was terminated because he exercised his right to take intermittent leave under the Family and Medical Leave Act. His former employer asserts that his FMLA leave had nothing to do with his termination. Rather, the employer claims, he was let go simply because his position was eliminated. At trial, the employee fails to present any direct evidence that his use of FMLA leave was a motivating factor for his termination. Is the employer in the clear?

According to the U.S. Court of Appeals for the Third Circuit, in Philadelphia, the answer is “no.” In Egan v. Delaware River Port Authority, a former employee alleged that he was terminated in retaliation for exercising his right to take intermittent FMLA leave for migraine headaches. The employer countered that he was terminated (along with another employee) because his position was eliminated, and that his use of leave had nothing to do with that decision.

At trial, plaintiff did not present any direct evidence that his use of leave motivated the employer’s termination decision. Nonetheless, at the close of trial, the plaintiff requested that a “mixed-motive instruction” be given to the jury. This instruction would allow the jury to find for the plaintiff if it determined the employer relied at all on an unlawful reason (i.e., plaintiff’s use of leave) when making the termination decision — even if there was another, lawful reason for the decision. The district court refused to issue such an instruction because there was no direct evidence the employer’s decision was motivated, even in part, by the plaintiff’s use of leave. After the jury returned a verdict for the defense, the plaintiff appealed.

The Third Circuit reversed. It held that a plaintiff “does not need to prove that invoking FMLA rights was the sole or most important factor” motivating the adverse action. The employee needs to show only “that his or her use of FMLA leave was a ‘negative factor’ in the employer’s adverse employment action.”

The Court went on to hold that, to be entitled to the mixed-motive instruction, the plaintiff “was not required to produce direct evidence” that his use of leave was a negative factor. Instead, such an instruction was warranted if there was any evidence “from which a reasonable jury could conclude that … [the plaintiff’s] use of FMLA leave was a negative factor in the employment decision” — even if that evidence was circumstantial.

This rule is not applied uniformly throughout the country. Some jurisdictions recognize “mixed-motive” claims, while others continue to require plaintiffs to prove “but for” causation to prevail in FMLA retaliation cases. Egan highlights the need for employers (and their counsel) to be mindful of the applicable law in any jurisdiction(s) in which they are located and to plan accordingly, including when proposing jury instructions at trial.