The federal Family Medical Leave Act, 29 U.S.C. §2612(a)(1)(C), [FMLA] entitles eligible employees to twelve workweeks of unpaid leave per year “to care for [a] spouse, or a son, daughter, or parent . . . , if such spouse, son, daughter, or parent has a serious health condition.”
The FMLA prohibits an employer from interfering with an employee’s exercise of this entitlement or retaliating against an employee for exercising this entitlement.*
In this action the U.S. Circuit Court of Appeals, Second Circuit, distinguished between prosecuting claims of “interference” and claims of “retaliation” under the FMLA as follows:
a. An employee typically brings an “interference” claim when the employer allegedly has prevented or otherwise impeded the employee’s ability to exercise rights under the FMLA, characterized as ex ante FMLA protection; and
b. “Retaliation” claims, in contrast, typically involve an employee, having actually exercised his FMLA rights or opposed perceived unlawful conduct within the meaning of the FMLA, subsequently alleges that he was subjected to some adverse employment action by the employer. This is characterized as ex post FMLA protection.
To establish a prima facie case of interference with FMLA rights, a plaintiff must demonstrate that:
(1) Plaintiff is an eligible employee for FMLA leave within the meaning of the FMLA;
(2) The defendant is an employer as defined by the FMLA;
(3) Plaintiff was entitled to take leave under the FMLA
(4) Plaintiff gave notice to the defendant of her intention to take leave; and
(5) Plaintiff was denied benefits to which she was entitled under the FMLA.
In contrast, to establish a prima faciecase of retaliation within the meaning of the FMLA, the plaintiff must demonstrate that:
(1) Plaintiff “exercised rights protected under the FMLA”;
(2) Plaintiff“was qualified for [the] position”;
(3) Plaintiff “suffered an adverse employment action”; and
(4) “the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.”
Courts test FMLA retaliation claims under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, whereby upon the plaintiff's making a prima facie case of retaliation the burden shifts to the employer to demonstrate action was not in the nature of retaliation but made for legitimate business reasons.
Then, as the court held in Weinstock v. Columbia Univ., 224 F.3d 33, if the employer demonstrates that the action taken was for "a legitimate business reason," the burden of going forward then shifts back to the plaintiff, who "must then show that [the employer's] proffered explanation is pretextual.” A plaintiff may satisfy this burden “by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered” reason, or by providing evidence such that "a reasonable fact finder could conclude that the prohibited reason was a motivating factor in the adverse employment action."
* See Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158