MEMORANDUM AND ORDER
Plaintiff Robert Chase brought this action against his former employer, the United States Postal Service (“USPS”), and his direct supervisor, Michael King, alleging violations of his rights arising from the termination of his employment by USPS.
By Memorandum and Order dated November 4, 2013, I granted summary judgment for the defendants on all but one count of the Complaint, which alleges that the defendants unlawfully terminated Mr. Chase in retaliation for taking leave protected under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2611 et seq. See Chase v. United States Postal Service,
. I. FACTS
A. Evidence at Trial
Robert Chase worked for the USPS as a letter carrier from .1997 until his termination on September 30, 2011. At all times during the course of his employment with the USPS,.Chase’s work performance was satisfactory or better. He was punctual, reliable and attentive to his job, and he was never given a negative performance review or subject to any discipline or corrective action.
From February 2005 until the time of his termination,. Chase was supervised by the defendant Michael King, who served as manager of the Brookline, Massachusetts Post Office where Chase worked. Although perturbed by Chase’s .leave- taking,- King did not have any issues with Chase’s performance as a letter carrier, and never had occasion to discipline Chase prior to the events that gave rise to this lawsuit.
1. Chase’sTnjury
On July 21, 2010, Chase was involved in a serious motor vehicle accident while on duty. Chase was parked on the side of the road during -his -lunch break when a car driven by an elderly woman who had fallen asleep at the wheel struck his vehicle. King responded to the scene and observed the severity of the accident. Chase was trans-
Chase was unable to return to work following the accident. Anticipating that Chase would submit a workers’ compensation claim,' King pressured Joseph* D'e-Mambro, the Brookline Post Office’s union steward for the National Association of Letter Carriers, to encourage Chase not to file such a claim so that the injury would not be reflected in the injury statistics for the Brookline Branch’. Such statistics may have had some impact on perception of King’s performance- as a manager.
King felt comfortable making such a request because he believed Chase would be able to make a recovery from the driver who had caused the accident, and therefore would not be left without recourse. Chase’ nevertheless filed a workers’ compensation claim, which was approved. In accordance with USPS policy, Chase was paid his full salary by the USPS for the first 45 days of his injury leave, after which he received workers’ compensation benefits amounting to two-thirds of his salary, tax-free, plus health insurance, paid by the U.S. Department of Labor’s Office of Workers’Compensation programs. ' '
Chase also applied for leave under the FMLA, to run concurrently with his workers’ compensation leave. FMLA leave at the USPS is unpaid unless the employee is otherwise entitled to pay, for example because he or she is using accrued sick leave or receiving workers’ compensation benefits. Chase received a notice approving his request for FMLA leave retroactive to July 21, 2010, the date, of his injury, and informing him that FMLA protection was limited to 12 weeks in each calendar year. Because Chase never returned to work, this meant that Chase’s 2010 FMLA leave was exhausted as of October 12, 2010. -
At the USPS, FMLA leave requests are processed through a central office located in North Carolina. The FMLA" approval notice indicates that it was copied to Chase’s “manager” and “supervisor.” King testified that he did not recall ever seeing the notice and .was unaware Chase had bee on. FMLA leave until the commencement of this. litigation. King testified, that he could not recall whether he had received similar notices in the past in connection with other employees’ FMLA leave requests. According to King, Chase’s leave status was designated as either “IOD” (injured on duty) or “OWCP” (out on worker’s compensation) in the computer program used to track employee time records, which indicated to him that Chase was out on paid workers’ compensation leave. King acknowledged that a related computer program would have indicated Chase’s FMLA leave status, but said that he never checked that program because he had no reason to believe Chase was using unpaid FMLA leave at the same time he was on paid workers’ compensation leave. King could not recall another instance of an employee taking FMLA leave for an on-the-job injury that was otherwise covered by workers’ • compensation, and believed that in practice, employees would use FMLA leave only as a last resort, for example, when they had exhausted all their paid sick leave or had to care for an ill family member.
As a result of Chase’s injury leave, the Brookline branch had to hire- a temporary replacement letter, carrier to cover- his route. • -
2. Chase’s Arrest
On September 18,2010, while Chase was still on injured leave, he and his brother
A few days later, King learned from employees at the Brookline Post Office that Chase and his brother had been arrested on drug charges. Someone also left a copy of a Brookline Tab article reporting the arrest in. King’s office. The original article did not identify the Chase brothers as Brookline letter carriers, but the Brook-line Tab later received an anonymous tip that the brothers were letter carriers, which it’confirmed with USPS Media Relations. The article was then updated online to reflect that the brothers were Brookline letter carriers. King testified that after the updated version of the article was published, he received a call from a customer asking whether her mail was safe.
King contacted Jeffrey Powers of the USPS Office of the Inspector General (“OIQ”) to request that he obtain a copy of the Chase brothers’ arrest report.
At about this time, William Downes replaced Lori Bullen as King’s supervisor. In response to an inquiry from Downes regarding the Chase brothers’ duty status, King stated “Michael is on an off-duty. Bobby [Chase] is out IOD [Injured On-Duty] and the OIG is looking into his status.”
King testified that after réading the arrest report and the Brookline Tab article, he was concerned about the seriousness of the crimes with which the Chase brothers were charged and the resulting negative publicity to the Brookline Post Office. He decided to place Michael Chase on emergency off-duty status, but took no similar action with respect.to Robert Chase because Chase was on injured leave and therefore was already off-duty. King testified that .if Chase had not been on injured leave, he would have placed him on emergency off-duty status as well. Because Chase was never placed on emergency .off-duty status, however, he was permitted to enter the Brookline Post Office while Michael was not. •
3. Post-Arrest, Pre-Termination Period
In the weeks and months following Chase’s arrest, King periodically inquired of Jeff Powers regarding, the status óf the Chase brothers’ criminal cases, which he
Chase testified that in conversations that followed, King expressed concern not with Chase’s arrest or criminal case, but with his extended injury leave. Chase testified that King exerted pressure on him to get medically cleared to return to work, telling Chase he was “four guys down” and was “getting killed by injuries.” Chase alleged that during one such conversation, King threatened to “sic Jeff Powers” of the OIG on him if he did not get himself medically cleared to return to work, suggesting that Chase was exaggerating the extent of his injury and thereby committing fraud. Chase and King stopped communicating after a December 2010 phone call in which King told Chase to “go fuck yourself’ when Chase requested his help with an issue related to his medical leave. The issue was that Chase’s physical therapist had denied him services because he was not being paid by the Postal Service in a timely fashion. Before approaching King with the issue, Chase had sought the assistance of a USPS Human Resources representative to no avail.
4. Termination
By January of 2011, King still had not taken any disciplinary action with respect to either Chase or his brother stemming from their September 18, 2010 arrests. In a January 12, 2011 email to King, Andrew Cullen of USPS Labor Relations expressed incredulity that no action had been taken in the nearly four months since the arrest of the Chase brothers. Although Chase remained on injured leave at that time, Michael was being;kept on emergency off-duty status. Cullen did not recommend that any particular discipline be imposed, but simply indicated to King that he needed to move forward with the Chase brothers’ cases in order that any discipline he might impose would be considered “prompt” under the terms of .the applicable collective bargaining agreement, which provided that “[disciplinary actions should be taken as promptly as. possible after the offense has been committed.”
As, a consequence, by letter dated January 13, 2011, King asked Chase to participate in a Pre-Disciplinary Interview (“PDI”) scheduled for January 18, 2011 “in regard to your arrest concerning drug related activities.” The purpose of a PDI, which is the first step in the formal disciplinary process, is to determine the facts concerning a particular incident. It is sometimes referred to by the USPS as an employée’s “day in court.”
Chase’s PDI occurred over the telephone, with King, .Chase and DeMambro participating. King asked several questions of Mr. Chase regarding the circumstances surrounding his arrest. Chase declined to answer any questions, citing the advice of his criminal defense counsel. King was not pleased, and told Chase something to the effect of “you’re really not helping yourself by responding this way.”
Purportedly based on Chase’s failure to answer any questions at his PDI, King concluded that his “hands were tied” and that he had no choice but to initiate Chase’s removal from the Postal Service even though his criminal case had not yet been resolved and Chase had previously professed his innocence to King. At trial before me, King testified that it did not
The removal notice, which was dated February 1, 2011 -and signed by King, informed Chase that'he was being removed for “Failure to Perform Your Duties in a Satisfactory Manner,” specifically citing Chase’s arrest and refusal to answer questions during his PDI. The notice stated, “[yjour actions in this matter are considered to be very serious,” and cited two specific policies in the USPS Employee Labor Relations Manual (“ELM”): Section 665.25 (Illegal Drug Sale, Use, or Possession) and Section 665.16 (Behavior and Personal Habits).
Through his union, Chase unsuccessfully grieved his termination. During the grievance process, Chase’s union informed him that it had brokered a deal with USPS Labor Relations whereby Chase could accept a 14-day suspension in lieu of removal if his brother Michael — who was also in the process of grieving a removal — were to resign. Chase declined to pressure his brother to resign in order to save his own job and accordingly rejected the offer. There is no evidence that Mr. King had any involvement in making this offer.
During the pendency of the grievance process but prior to final arbitration, Chase’s criminal case reached a favorable resolution. 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 Chase’s successful completion of one year of pretrial probation, including random drug testing.
Chase presented evidence of this favorable disposition at a final arbitration hear
5. Evidence that Chase Received Dispa- • rate Treatment
Chase offered substantial evidence at trial that tended to show that King and the USPS treated Chase more' severely than other similarly situated employees.
The first such comparator was Brookline letter carrier James Ferretti. In August 2006, Ferretti was arrested for- drug-related charges while on duty. Police found cocaine, syringes, and other drug-related items on Ferretti, along with mail that he was supposed to be delivering at the tirrie. When he was' arrested, he had fresh needle marks on his arms and scarring consistent with drug use. The circumstances of his arrest were publicized in detail' in the Brookline Tab, including the fact that he was a Brookline letter carrier.
Nevertheless, instead of removing him, King determined that Ferretti, who was a known drug abuser with a past disciplinary record, would be a “perfect candidate for a last chance agreement.” King testified that he made this decision because Ferretti “fell on his sword” at his PDI and admitted that he was a drug user who had a problem and needed help.
Two other Brookline letter carriers under King’s supervision, William Maroney and Christine Bailey, were caught by police using drugs in a parked car while Bailey was on duty. Both Maroney and Bailey had past disciplinary records. Nevertheless, because, according to King, they were issued summonses but not arrested,
For his part, William Downes also approved discipline for- a postal employee, Richard Varriale, who, although coneededly not under King’s supervision, was,arrested while on-duty for drug possession in April 2011, ■ after having purchased prescription narcotics from another postal employee. In lieu of removal, the Postal Service offered Varriale the option to retire, thereby preserving his pension rights.
The evidence also showed that King himself had been disciplined short of termination. In 2007, King submitted records to his then-supervisor, Lori- Bullen, indicating that certain employees had attended a safety talk when they had not in fact done so. After inquiring of King regarding the inaccuracies, Bullen deemed King’s account of the matter “not credible” and issued him a “letter of warning in lieu of 14-day time off suspension.” Then, in 2011, King’s new supervisor,. William Downes, issued King another letter of warning in lieu of a 14-day time off suspension for failure to deliver mail in a timely manner. Both infractions were considered serious.
6. Evidence Regarding Labor Relations Influence
The defendants offered evidence at trial suggesting that the impetus behind King’s decision to initiate the removal when 'he did, four months after the arrest but prior to any resolution of the criminal case, was due largely to pressure from Andrew Cullen and Labor Relations to issue any discipline “promptly” as required under the collective bargaining agreement. Other evidence adduced at-trial, however, suggested that this “promptness” requirement is not uniformly adhered to, particularly where the conduct at issue is the subject of an ongoing criminal proceeding. In one instance, for example, a. postal employee within William Downes’ region, Kevin Moore, was not issued a notice of removal until over two and a half years following his arrest for child pornography, :and over five months after his conviction and incarceration on that charge..
7. Evidence of King’s Attitude Toward Injury Leave
Substantial evidence was adduced at -trial regarding King’s attitude toward Chase and other employees who in his view took unnecessary injury leave or otherwise abused the system-.
According to the testimony of Joseph DeMambro, a repeated source of conflict in the Brookline Post Office was King’s predisposition to believe that employees who were injured on the job or required medical leave were faking their conditions and were liars.
In September 2006, Chase injured his knee on the job and missed approximately one week of-work as a result. DeMambro testified that sometime after Chase returned to work, in November 2006, King announced over the public address system in the Brookline Post Office: “Will Bob Chase, the injury fraud specialist, please report to the office.” Then, in August 2010, following Chase’s motor vehicle accident, King posted a job opening on the office bulletin board for an “injury compensation specialist,” and made an announcement over the public address system directed at Chase that “there’s a job posted on the bulletin board for any injury compénsation specialist since you’re the biggest fraud when it comes to injuries.” On a third occasion, King reportedly asked DeMamb-ro if Chase was advising a co-worker who had been injured on the job regarding how
Another employee of the Brookline Post Office, Maria Constantino, testified that she heard King say Chase was faking the injury he had sustained in the car accident. On multiple other occasions, Constantino heard King announce over the public address system “Can I have the carrier on Route 92 [i.e., Chase] who is faking an injury come to the office, please?” According to Constantino, King’s animus was not reserved only for Chase; King had accused other employees of faking their injuries in the past and had at least one such employee surveilled on her route. According to Constantino, King would frequently withhold sick pay from employees, forcing them to re-designate a sick day as a vacation day or file a grievance through the union in order to get paid. Another employee, Wanda Jackson, testified that King held a preconceived notion that employees were faking their injuries, and often withheld pay on this basis.
That King has a less than sympathetic view of medical leave is suggested by his testimony about his own leave history. In his thirty-three years working for the USPS, with much of that time spent as a letter carrier, King has never been injured on the job and has never taken FMLA leave for any reason. He testified that he believes it would set a poor example for someone in a management role like himself to be absent from work. As a general matter he does not take much sick leave, and in fact has not taken a single day of sick leave since 1997. In June of 2001, he received a letter of commendation and a gift certificate from his supervisor in recognition of his non-use of sick leave during calendar year 2000.
King denied possessing any preconceived notions with regard to employees who take injury leave or making any disparaging remarks in that connection. King also presented evidence regarding other employees of the Brookline Post Office who took FMLA leave while under his supervision and did not claim subsequent retaliation.
I do not find King’s testimony in this regard credible and find rather that he was predisposed to view those on leave for injuries as putative malingerers who made his staffing work more challenging.
8. Damages Evidence
Through an expert economist, Chase offered largely uncontroverted evidence of his lost earnings as a result of being terminated by the USPS. At the time of trial, Chase was a forty-year-old male with a high school education who has worked for the postal service for most of his adult life. After being cleared to return to work by his doctor, he reapplied to work at the Postal Service, but was told his application would not be considered because he previously had been terminated for cause. Since being terminated, he remained unemployed until shortly before trial, when he obtained a part-time job at an auto-body shop for low pay and no benefits. Evidence at trial supports back pay losses totalling $270,071.00 as a result of his termination.
B. Findings of Fact
In light of the evidence detailed above, I make the following findings of fact:
Chase was injured on July 31, 2010, and remained unable to work as a letter carrier until sometime after King made the decision in January 2011 to terminate him.
From the date of his injury until the date his termination became final on September 30, 2011, Chase was on injured leave and was receiving workers’ compensation payments. For the first twelve
King knew that Chase had suffered a serious injury that rendered him unable to work, and knew that Chase was on injured leave and was receiving workers’ compensation benefits. He did not know that Chase had applied for and was granted FMLA leave to run concurrently with the first twelve weeks of his workers’ compensation leave. Rather King believed that Chase was at all times out on compensatory — not FMLA — leave.
King believed that Chase was exaggerating the severity of his injury and had been out of work and collecting workers’ compensation benefits for far longer than was necessary. King believed this was not the first time that Chase had abused the system. King repeatedly pressured Chase to return to work, and threatened to have him investigated for workers’ compensation fraud if he did not return promptly. King continued to pressure Chase to return to work even after his September 18, 2010 arrest.
In early January 2011, USPS Labor Relations urged King to take some action with respect to the Chase brothers’ disciplinary cases. At that point, almost four months had passed since their arrest. Although King made the decision to remove Chase, the timing of that decision was accelerated by Labor Relations.
Having become increasingly fed tip with Chase' and having recently cut off communication with him when it became evident that Chase had no intention of returning to work anytime soon, King decided to exercise his discretion to seek Chase’s termination. In' doing so, he treated Chase far less leniently than he had treated other employees arrested for drug offenses, who, unlike Chase, had been arrested while on duty and who had records of prior discipline. King’s decision to terminate Chase was motivated by animus over what he perceived to be Chase’s abuse of workers’ compensation leave, which was further aggravated by Chase’s arrest on drug charges while he was out of work. King was not, however, motivated by Chase’s FMLA leave taking, of which he was unaware.
II. CONCLUSIONS OF LAW
The twin purposes of the FMLA are to “balance the demands of the workplace with the needs of families” and “to entitle employees to take reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(1) & (2); Hodgens v. General Dynamics Corp.,
The FMLA contains two, distinct types of provisions aimed at accomplishing these purposes. .First, it creates.a series of substantive — or “prescriptive” — rights. Id. at 159-60. Eligible employees “shall be entitled” to up to twelve weeks of unpaid leave per year for any one of the following purposes: when the employee has “a serious health condition that makes [him or her]
Where, as here, an employee alleges a violation of his proscriptive rights under the FMLA, the critical issue is the employer’s motive, and specifically “whether the employer took the adverse action because of a prohibited reason’ or for a legitimate non-discriminatory reason.” Hodgens,
Under, the McDonnell Douglas framework, an aggrieved employee bears the initial burden of adducing sufficient qyidence to establish a prima facie case of discrimination or retaliation. McDonnell Douglas,
If the employee makes out a pri-ma facie case, the burden then shifts to' the employer “ ‘to articulate some legitimate, nondiscriminatory reason for the employee’s [termination],’ sufficient to raise a genuine issue of fact as to whether it discriminated against the employee.” Hodgens,
Here, it is undisputed that Chase availed himself of a protected right _ under the FMLA when he took leave for “a serious health condition that [made Him] -unable to perform the functions of [his] position,” 29 U.S.C. § 2612(a)(1)(D), and that he was adversely affected by an employment decision when he was terminated. It is equally clear ‘that the defendants have provided a non-retaliatory justification for .Chase’s termination in the form of Chase’s arrest on drug charges, and that his termination was upheld by an arbitrator as being supported by just cause.
As I observed in my November 4, 2013 Memorandum and Order denying the defendants’ motion for summary judgment on Chase’s retaliation claim, the Supreme Court’s decision in University of Tex. Sw. Med. Ctr. v. Nassar, — U.S. —,
There has been no material development in the case law since the issuance of my November 4, 2013 Memorandum and Order. The question whether Nassar applies to FMLA retaliation cases remains an open one. Those Courts of Appeals that have acknowledged the potential effect of Nassar in the FMLA context have expressly declined to consider the issue, concluding it made no difference on summary judgment or had been waived. See Lichtenstein v. Univ. of Pittsburgh Med. Ctr.,
Most district courts to have confronted the issue have declined to apply Nassar’s but-for causation standard in the FMLA retaliation context either because it had not explicitly been adopted by a higher court, see Kendall v. Walgreen Co.,
Others, including my colleague Judge Stearns, have assumed Nassar would apply in the FMLA context. DiBlasi v. Liberty Mut. Group. Inc.,
For its part, the First Circuit has not directly addressed the applicability of Nas-
Compelled as I am to decide, in the absence of controlling authority, which standard the First Circuit would apply if it confronted the issue, I conclude that Chevron deference is owed to the Department of Labor’s regulations. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
Nassar establishes a “default rule[ ]” under which Congress is “presumed to have incorporated, absent an indication to the contrary -in the statute itself,”, but-for causation as the causal standard when drafting statutes. Nassar,
The Department of Labor has interpreted the FMLA to require only that it is unlawful to “use the taking of FMLA leave as a negative factor in employment actions.” 29 C.F.R. § 825.220(c). Under this regulation, any meaningful causal connection between the taking of FMLA leave and an adverse employment action constitutes retaliation, even if the taking of leave was not ■ sufficient to cause the adverse action on its own. If deference is owed to this regulation, but-for causation is not required under the FMLA.
A Chevron inquiry' is appropriate where, as here, an agency has promulgated regulations with the force of law pursuant to an explicit statutory grant of rule-making authority. The authorization and use of rulemaking authority is “a very good indicator of delegation meriting Chevron treatment.” United States v. Mead Corp.,
The First Circuit has held that Chevron deference is appropriate for Department of Labor interpretations of the FMLA. Hodgens v. Gen. Dynamics Corp.,
Those'courts that have directly examined the deference owed'to this particular regulation have found, albeit pre-Nassar; not only that Chevron governs, but' also that deference is appropriate: that the" agency provided a reasonable interpretation of an ambiguous statute.' See Bachelder v. Am. W. Airlines, Inc.,
I agree with these courts that the FMLA leaves ambiguous what causal standard governs in retaliation actions and that the Department of Labor has supplied one reasonable answer. The statute does not speak directly to standards for causation and- provides ho unambiguous indication that but-for causation is required. The relaxed causation standard provided by the Department-of Labor is precisely the sort of “legitimate policy choice[]” that Chevron empowers a properly delegated agency to make. Chevron,
Nassar does not reduce the deference owed to the Department of Labor in its interpretations of the FMLA. The Court’s interpretation of Title VII does not render unambiguous the language of the FMLA. “Only a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.” Nat'l Cable & Telecommunications Ass’n v. Brand X Internet Servs.,
Before I can address that question, however, I must clarify what constitutes retaliation under the FMLA. Obviously, an employer cannot retaliate against an employee for taking FMLA leave that the employer could not have known about. Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 70 (1st Cir.2015). Either knowledge of the employee’s FMLA leave, or notice sufficient for a reasonable employer to learn that the leave was FMLA-protected, is required. In this respect, the courts have not rested on formalisms. For example, employers are liable not only for punishing an employee who has specifically invoked the FMLA but also for punishing an employee who took leave protected by the FMLA even if neither employee nor employer actually' knew that the FMLA was involved. See, e.g., Dotson v. Pfizer, Inc.,
However, the converse must also, be true. On the one hand, it is a violation of the FMLA for an employer to retaliate against an employee who takes sick leave, without invoking the FMLA, when the employer' reasonably should have known that the FMLA could be involved to protect the worker. On the other hand, it should not violate the FMLA for an employer to retaliate against an eíñployee who has invoked the FMLA, when the employer would reasonably have believed that the FMLA was not meaningfully invoked. In the latter scenario, there is no actual intent to discriminate against the employee for exercising his rights, because the employer neither knew nor should have known ■ that the rights- were being exercised to any effect. This follows directly from the many cases describing forms of notice that are insufficient to apprise an employer of an employee’s need for leave. See, e.g., Brenneman v. MedCentral
This case is similar to that second scenario. King was aware that Chase had suffered a serious injury; on its own, that would otherwise be enough to put him on notice of FMLA-eligible leave and support a finding of retaliation. But King was also aware that Chase had taken paid leave, under terms more favorable than the FMLA provides. Therefore, he reasonably believed that even though seriously injured, it would not make sense to Chase to take FMLA leave until — at the earliest— his paid leave expired. If Kang reasonably believed that the FMLA’s protections had been declined, he could not be held to have retaliated against Chase for taking FMLA leave. See McNamara v. Trinity Coll., No. 3:12CV363 JBA,
I find that King actually believed that Chase was not covered by the FMLA during the relevant period and that he was reasonable in so believing. Even the USPS’s internal computer system used to track employee time records marked Chase as either “injured on duty” or “out on worker’s compensation.” This case presents the unusual scenario in which formal, proper but bureaucratically reflexive invocation of the FMLA fails to provide a supervisor with the requisite notice or knowledge of FMLA leave to ground a claim of retaliation. Due to the unusual combination and chronology of leave that Chase took, King reasonably believed that Chase had not invoked FMLA coverage. Operating under such a belief, King — as the relevant decision maker — could not have retaliated against Chase for taking FMLA leave. That the USPS Human Resources apparatus did not warn Chase away from redundantly and uselessly taking FMLA leave — when he already had meaningful leave coverage — does not, without more, robotically introduce his FMLA leave taking as a negative factor in the defendants’ termination decision. Consequently, Chase’s FMLA retaliation claim must fail.
I am of the view that this holding does not conflict with, or call into question, those decisions that find retaliation liability even when a defendant can in some sense be said to be unaware that the FMLA has been invoked (or even when the FMLA has not been invoked by name). See e.g. Dotson,
In almost all cases, any distinctions between these signals may not be material. The courts ascribe knowledge of FMLA eligibility to employers based on inquiry notice alone. In most cases, therefore, an employer can be liable fqr retaliating against an employee for “having availed himself of a right protected by the FMLA, namely, the right to take medically necessary leave time.” Hodgens v. Gen. Dynamics Corp.,
This case, in contrast, poses an unusual situation, due to the concurrent leaves provided by the FMLA and by workers’ compensation. Chase’s absence was protected by the FMLA for twelve'weeks, even while he received workers’ compensation benefits, And that absence was a negative factor in Chase’s, ultimate termination: King was angry with Chase over his absence throughout the twelve covered weeks and this colored all the ensuing events. But as a factual matter, it was the workers’ compensation leave — not the concurrent FMLA leave — which angered King and contributed to Chase’s termination. King not only did not know that Chase had invoked the FMLA (in which case, he would have been treated as aware for causation purposes), he believed to the contrary that Chase had not invoked the FMLA. King effectively, if incorrectly, believed that Chase had declined FMLA coverage and instead opted for workers’ compensation alone.
.1 hold that the FMLA does not impose liability on employers who take adverse employment actions against employees, but who demonstrate their belief, however mistaken, that the FMLA was not invoked. This seems .to me inherent in the concept of intentional retaliation. I must nevertheless observe how rarely this issue will affect litigants. Where the employer is simply unaware of the FMLA’s protections, it could still remain liable under theories of inquiry notice. Employers with mixed motives, in which both FMLA leave-taking and concurrent leave-taking are negative factors in the adverse employment decision, can also be liable for retaliation under the FMLA. Retaliation liability is avoided based on an employer’s subjective knowledge only where a finder of fact has determined that an employer did not intend to retaliate on the basis of leave taken under the FMLA. Formal, written notice of FMLA leave-taking,. even to some other branch of an organization, will usually be sufficient to create knowledge of FMLA leave. But the particular facts of this case are idiosyncratic in supporting my finding that the relevant decision maker for the employer demonstrably believed that the FMLA was not invoked, although it had been invoked formally. For this reason, I conclude that FMLA leave taking was not a negative factor in the .defendants’ termination decision. The findings supporting that conclusion are reinforced by the passage of time after the FMLA leave was formally taken and concluded and before the adverse employment action occurred. The fact that no remaining FMLA leave would have been available after the worker’s compensation leave was concluded means that prospective FMLA leave taking is' not a factor in" the decision making.
III. ORDER FOR JUDGMENT
For the foregoing reasons, it is hereby ORDERED that judgment enter for the defendants on the basis of these findings of fact and conclusions of law and my November 4, 2013 Memorandum and Or
Notes
. Powers was King’s contact in the OIG. At trial, Powers described his relationship with King as that of "professional friends” who knew each other from time spent together as supervisors in the Postal Service.
. As reproduced in the notice of removal, those sections provided as follows:
665.25 Illegal' Drug Sale, Use, or Possession: The Postal Service will not tolerate the sale, possession or use' of illegal drugs, or the abuse of legal drugs while on duty or on postal premises. Employees found to be engaged in these activities are subject to discipline, including removal and/or criminal prosecution where appropriate.
665.16 Behavior and Personal Habits: Employees are expected to conduct themselves during and outside of working hours in a manner that reflects favorably upon the Postal Service. Although it is not the policy ' of the Postal Service to interfere with the private lives of employees, it does require that postal employees be honest, reliable, trustworthy, courteous, and of good character and reputation. The Federal Standards of Ethical Conduct referenced in 662.1 also contain regulations governing the off-duty behavior of postal employees. Employees must not engage in criminal, dishonest, notoriously disgraceful, immoral, or other conduct prejudicial to the Postal Service.
Notably omitted from the notice of removal was the remainder of Section 665.16, which states:
Conviction for a violation of any criminal statute may be grounds for disciplinary action against an employee, including removal of the employee, in addition to any other penalty imposed pursuant to statute. Employees are expected to maintain harmonious working relationships and not to do anything that would contribute to an unpleasant working environment.
ELM Section 665.16 (emphasis added).
. The possession charge was ultimately dismissed following Chase’s successful completion of the pre-trial probation.
.Jeff Powers testified that, although he could not recall, it was "possible” that King asked him to investigate Chase for injury fraud, and if he had, Powers likely would have forwarded the complaint to Kevin O’Leai~y or another agent in OIG’s workers’ compensation unit. King denies ever asking OIG to investigate Chase for injury fraud and there is no evidence of such an investigation.
. Joseph DeMambro contradicted this testimony to a degree, testifying that King informed him of his decision to give Ferretti a last a chance agreement prior to conducting the PDÍ.
. Ferretti was eventually terminated two years later, when his continued drug use caused significant job performance issues.
, The redundancy in the leave bases appears to be the result of a failure by the USPS to counsel Chase from taking FMLA leave at a time when paid leave was available. Whether the result of bureaucratic indolence or fear of legal exposure for meaningful and helpful counsel, the USPS practice in this regard caused Chase to use FMLA leave at a time when it provided him with no benefit he was not then receiving from workers’ compensation benefits.
. Chase did not move , to vacate the arbitrator's decision and the propriety of that decision is not before me. However, Chase has suggested throughout this litigation that the application of ELM Section 665.25 to his case was clearly erroneous because it applies only to on-duty drug use. As reproduced in note 2, supra, that section reads as follows: "Illegal Drug Sale, Use, or Possession: The Postal Service will not tolerate the sale, possession or use o'f illegal drugs;1 or the abuse of legal drugs while on duty or on postal premises.” Although the issue is not directly before me, I am satisfied that while not a model of clarity, the clause “while on duty or on postal premises” can reasonably be read only to modify the immediately preceding clause, i.e., "the abuse of legal drugs.” Under such a reading, the “sale, possession or use of illegal drugs” would be grounds for termination regardless of whether such conduct occurred while off-duty.
. In this respect, a minor textual difference : between Title VII and the FMLA takes on new significance. Nassar relied in part on the phrase "because of” in Title VII’s anti-retaliation provisions, which it.held implies but-for causation. The FMLA, in contrast, does not use the phrase "because of.” Rather; it makes it unlawful for employers to “interfere with, restrain or deny the exercise' of ... any right provided” by the statute or to "discriminate against any individual for opposing any practice made unlawful” by the statute. 29 U.S.C. § 2615 (emphasis added). The distinction between "because of” and "for” only, adds to the ambiguity inherent in the statute. Textually, "for” may mean something different than "because of,” Certainly, as a basic preposition, the word "for’/ allows a wide variety of meanings and usés; consequently, it is ambiguous. The distinction also complicates comparisons between Title VII and the FMLA, .because Congress appears to have intended the different phrasings to have different effect. In this context, I must defer to the agency, I am not called on to offer my own interpretation of the FMLA provisions; I note only that while, similar to Title VII in many respects, the differences between the two statutes heighten the ambiguities in the FMLA.