238 F. Supp. 3d 179
D. Mass.2017Background
- Plaintiff Jo Anne Gourdeau, a Newton police officer, was not selected for a temporary Traffic Officer specialist position after taking FMLA-protected leave; she alleged FMLA retaliation.
- Her union filed a grievance over non-selection; a settlement paid Gourdeau $4,992 which she disputed; summary judgment dismissed her state-law discrimination and retaliation claims, leaving the FMLA retaliation claim.
- After a three-day jury trial on the FMLA claim, the court submitted a special verdict under Fed. R. Civ. P. 49(a); the jury found no adverse consideration of FMLA leave and ruled for defendants.
- At the charge conference, parties disputed the proper causation standard for FMLA retaliation ("but-for" vs. "negative/motivating-factor"); the court deferred resolving it until after trial and used a special verdict to preserve issues.
- The court analyzed statutory text, legislative history, Supreme Court decisions (Gross, Nassar), First Circuit precedent analogies (Hodgens, Colburn), and Chevron deference to conclude the FMLA requires a but-for causation standard for retaliation claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate jury verdict form | General verdict sufficed | Special verdict unnecessary | Court ordered a special verdict to preserve and resolve a dispositive legal causation question before final judgment |
| Causation standard for FMLA retaliation | Liability shown if FMLA leave was a negative factor or motivating factor | Liability requires but-for causation (employer would not have acted but for leave) | Court holds FMLA retaliation requires but-for causation |
| Weight of DOL regulation (29 C.F.R. §825.220(c)) | DOL regulation supports negative-factor rule and deserves deference | Regulation conflicts with statutory text and Supreme Court precedent; not controlling | Court rejects Chevron deference to DOL rule here and deems the regulation an impermissible construction |
| Use of Title VII/ADEA analogies and McDonnell Douglas | FMLA should be treated like Title VII retaliation (but dispute whether Title VII's motivating-factor applies) | Congressional choices align FMLA more with ADEA/Nassar but-for approach | Court applies Supreme Court reasoning (Gross/Nassar) and legislative-structure arguments to treat FMLA retaliation as requiring but-for causation |
Key Cases Cited
- Price Waterhouse v. Hopkins, 490 U.S. 228 (recognizes motivating-factor liability and shifted burden analysis)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (establishes burden-shifting framework for discrimination/retaliation claims)
- Gross v. FBL Financial Services, Inc., 557 U.S. 167 (ADEA claims require but-for causation)
- Univ. of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (Title VII retaliation requires but-for causation; distinguishes motivating-factor rule)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (framework for deference to agency statutory interpretations)
- Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998) (applies McDonnell Douglas framework to FMLA retaliation analogously)
- Colburn v. Parker Hannifin, 429 F.3d 325 (1st Cir. 2005) (discusses FMLA substantive and protective provisions)