The FMLA Meets Professor Prosser

As I have previously posted (click here), there is an open question as to whether the “but for” causation standard in ADEA cases, as set forth in the Supreme Court’s opinion in Gross v. FBL Financial Services, Inc., also applies in the context of FMLA litigation.  (See also my other previous posts on Gross here, here, here, here, and here, and my paper on Gross here.)  Those post-Gross FMLA decisions that we have been able to identify reflect a Circuit split, with the 6^th Circuit adhering to its position that mixed-motive analysis remains viable in FMLA retaliation cases (See Hunter v. Valley View Local Schools, 579 F.3d 688 (6th Cir. 2009)); whereas the 7^th Circuit arrived at a contrary result, finding that Gross but-for analysis applies (See Serafinn v. Local 722, Int’l Bhd. Of Teamsters, 2010 U.S. App. LEXIS 5279 (7th Cir. 2010); Rasic v. City of Northlake, 2009 U.S. Dist. LEXIS 88651 (N.D. Ill. 2009)).

In a recent opinion from the United States District Court for the District of Columbia, Breeden v. Novartis Pharmaceuticals Corp. (copy available here), Judge Robertson was confronted with not an issue of liability, the issue presented in Gross and its progeny, but rather he was presented with an issue of damages under the FMLA and the sufficiency of plaintiff’s evidence in light of the statutory language of the FMLA, which states: “[t]he employer is liable only for compensation and benefits lost ‘by reason of the violation,’ [or] for other monetary losses sustained ‘as a direct result of the violation’.” 29 U.S.C. § 2617(a)(1)(A)(i)(I).  Interestingly, in the briefing to the court on this issue, the defense relied entirely on post-Gross cases construing the phrase “for opposing any practice made unlawful” by the FMLA contained in § 2615(a)(2) (emphasis added).  None of the briefs focused on the phraseology “by reason of the violation” contained in § 2617(a)(1)(A)(i)(I).

Nonetheless, Judge Robertson instead focused on the remedial / damages language of the FMLA, and its particular phrase “by reason of”.  Focusing on that phrase, Judge Robertson was led to a series of cases under various other federal statutes with identical phraseology that have been construed to require not only so-called factual causation (but-for causation), but also legal causation (proximate causation).  See Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 265-68 (1992) (RICO civil suits); Associated Gen. Contractors v. Cal. State Council of Carpenters, 459 U.S. 519, 531-36 (1983) (Clayton Act § 4); Loeb v. Eastman Kodak Co., 183 F. 704, 709-10 (3rd Cir. 1910) (Sherman Act § 7); Rothstein v. UBS AG, 647 F. Supp. 2d 292, 295 (S.D.N.Y. 2009) (Anti-Terrorism Act); but see Boim v. Holy Land Found. for Relief & Development, 549 F.3d 689, 695-98 (7th Cir. 2008) (en banc) (adopting “relaxed” causation standard, based on policy considerations, for Anti-Terrorism Act).

Plaintiff (Breeden) was a sales rep for Novartis.  At the time in 2005 when Plaintiff went on an FMLA leave on account of a pregnancy, Novartis realigned her sales force and assigned a smaller territory to her.  She complained about the realignment, and a supervisor assured her that she would be “made whole” upon her return to work.  But, when she returned, there was no change in her diminished sales territory.  Despite that fact, her merit-based income was greater than it had been before the realignment, and her “sales rank” among her peers improved.  In 2008, there was yet another realignment, and Plaintiff’s territory was merged with that of another sales rep.  Plaintiff, whose territory was the smaller of the two, was declared redundant and terminated.

Plaintiff claimed that the unlawful acts were the 2005 realignment and the company’s failure to restore her pre-FMLA leave customer base.  She claimed that her termination, which occurred three years thereafter in 2008, was as a result of these violations.  Focusing on the statutory language “by reason of”, Judge Robertson found that Plaintiff’s evidence was not legally sufficient to satisfy that standard.  In his opinion of May 26^th, Judge Robertson briefly discussed two approaches to “proximate cause”, the ex-ante perspective, and the ex-post perspective, citing Prosser.  As the newer lawyers will vividly recall and the older lawyers will only vaguely recall, the ex-ante perspective asks whether the harm was reasonably foreseeable by the wrongdoer at the time of the wrongful act, and the ex-post perspective asks whether the harm was a direct result of the wrongful act.  Judge Robertson ruled as follows: “Regardless of which approach is taken, the record of this case does not contain legally sufficient evidentiary basis for a reasonable jury to find that Novartis’ 2005 realignment was the proximate cause of Breeden’s termination in 2008.”  Indeed, Judge Robertson goes on to state as follows: “If the record establishes anything, indeed, it is that the 2005 and 2008 realignments were completely disconnected from one another… there is no evidence that the 2008 realignment was foreseeable from 2005 (ex ante), and because the 2008 realignment was a substantial intervening cause, Breeden’s termination cannot be said to have been the direct result (ex post) of the 2005 realignment…” (footnote omitted).

A reading of the cases cited by Judge Robertson finds one catapulted back to the first year of law school.  For example, Holmes v. Sec. Investor Prot. Corp., a RICO opinion, authored by Justice Souter, has extended discussion of “proximate cause” with citation to Prosser.  Justice Stevens’ opinion in Associated Gen. Contractors also has extensive discussion of proximate cause even with citation to every law student’s nightmare – Palsgraf!  And, Judge Posner’s opinion in Boim discusses necessary causation, sufficient causation, the two fires hypothetical that every law student suffered through, and every law student’s favorite torts case, Summers v. Tice, 33 Cal. 2d 80, 199 P. 2d 1 (Cal. 1948).  In light of the extended discussion of proximate cause, it may be wise for counsel to call the trial courts’ attention to Justice Ginsburg’s recent admonition in her concurring opinion in Norfolk Southern Ry. V. Sorrell, 549 U.S. 158, 179 (Ginsburg, J. concurring):

If the term "proximate cause" is confounding to jurists, it is even more bewildering to jurors.  Nothing in today's opinion should encourage courts to use "proximate cause," or any term like it, in jury instructions. " [L]egal concepts such as 'proximate cause' and 'foreseeability' are best left to arguments between attorneys for consideration by judges or justices; they are not terms which are properly submitted to a lay jury, and when submitted can only serve to confuse jurors and distract them from deciding cases based on their merits." Busta v. Columbus Hospital Corp., 276 Mont. 342, 371, 916 P.2d 122, 139 (1996). Accord Mitchell v. Gonzales, 54 Cal.3d 1041, 1050, 1 Cal. Rptr. 2d 913, 819 P.2d 872, 877 (1991) ("It is reasonably likely that when jurors hear the term 'proximate cause' they may misunderstand its meaning.").²

[FN2] See also Stapleton, Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences, 54 Vand. L. Rev. 941, 987 (2001) ("[T]he inadequacy and vagueness of jury instructions on 'proximate cause' is notorious."); Cork, A Better Orientation for Jury Instructions, 54 Mercer L. Rev. 1, 53-54 (2002) (criticizing Georgia's jury instruction on proximate cause as incomprehensible); Steele & Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N. C. L. Rev. 77 (1988) (demonstrating juror confusion about proximate-cause instructions).

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