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Employers subject to the Family and Medical Leave Act (FMLA) are aware that it prohibits them from retaliating against employees for taking FMLA leave. This prohibition ordinarily applies, for instance, when an employer adopts an immediate supervisor's recommendation to fire an employee for taking FMLA leave. But would this prohibition apply when the employee receives consideration by independent decision-makers? 

In Parker v. United Airlines, Inc., No. 21-4093, 2022 WL 4454466 (10^th Cir. Sept. 26, 2022), the 10th Circuit Court of Appeals answered no. The court held that retaliation entails a causal link between an employee's use of FMLA leave and the firing. That causal link is broken when an independent decision-maker conducts their own investigation and decides to fire the employee.

In Parker, a former booking agent for United Airlines sued the airline for FMLA retaliation after she was terminated a few months after United approved her request to take intermittent FMLA leave. Prior to the termination, the employee’s supervisor suspected the employee had been avoiding customer phone calls and was improperly placing customers on hold for long periods of time to talk to her colleagues. Her conduct violated United’s policies. United prohibited the employee’s direct supervisor from terminating her. However, a manager possessed the authority to terminate the employee once an independent review was conducted. Subsequently, a manager conducted an independent investigation, where she met with the employee, her union representative, and supervisor and concluded that the employee should be terminated. On appeal to a senior manager, the union representative admitted that the employee had no excuse for her pattern of behavior and asked to give her another chance. The senior manager declined, and the employee was fired.

In her claim, the former employee argued that her supervisor’s biased motive should have been imputed to the employer as it influenced the manager’s decision-making. This argument is otherwise known as the cat’s paw theory. The 10th Circuit rejected this argument and affirmed the district court’s decision to dismiss the case. The court held that even though the supervisor may have retaliated against the employee for taking FMLA leave, United broke the causal chain of the supervisor’s retaliation when it directed another manager to independently investigate and decide whether to adopt the supervisor’s recommendation to terminate the employee. 

As the court stated, one way an employer can break the causal chain between a subordinate’s behavior and the adverse employment action is for someone higher up in the decision-making process to independently investigate the grounds for dismissal. The Parker opinion emphasizes the importance of employers independently reviewing the grounds for dismissal in termination decisions where a supervisor is suspected of engaging in retaliation or discrimination. In such circumstances, employers should independently review the grounds for dismissal and avoid relying solely on a supervisor’s recommendation for termination.

Please reach out to Employers Council if you have questions.