Gross Isn't Too Gross

In Eunice v. Valley View Local Schools, the Sixth Circuit Court of Appeals (Gibbons, J.) held that Gross's preclusion of mixed-motive claims does not apply to FMLA retaliation claims. Specifically, because the FMLA does not contain the ADA's "because of," but instead, in regulation 29 CFR s. 825.220(c) (promulgated by the Department of Labor), uses less stringent words like "negative factor," the Court held that "the FMLA, like Title VII, authorizes claims in which an employer bases an employment decision on both permissible and impermissible factors." (It may be problematic that the Court relied upon regulations, and not the text of the statute. This may explain why the Court went out of its way to note that it had already found the regulation in question to be "reasonable" and "entitled to deferential judicial review.") As such, "if Hunter has presented evidence to establish that Valley View discriminated against her because of her FMLA leave, then the burden shifts to Valley View to prove by a preponderance of the evidence that it would have made the same decision absent the impermissible motive." The Court ultimately reversed the trial court's grant of summary judgment for Defendant. An extension of Gross to FMLA retaliation claims would have favored employers because it would have required employees to demonstrate that the impermissible motive was the "but for" cause of the employment action.

Click here for a copy of the Court's decision.
Click here for a copy of the FMLA.
Click here for a copy of the regulation.

Stray Remarks and Circumstantial Evidence

On January 21, 2010, the Michigan Court of Appeals, in Wolfgang v. Dixie Cut Stone, in addition to providing a succinct overview of prima facie cases, provided yet another valuable precedent for employers trying to discredit plaintiffs' direct evidence claims.

To establish a direct evidence claim, plaintiffs must offer direct evidence of discrimination. If he/she does so, the discrimination case proceeds like any other civil case. In Wolfgang, the Court held that "that was something stupid only a woman would say," "[h]ere we go, Angel, thinking that because I'm a woman I can sell this and . . . it ain't going to sell," and that was "too much money for a woman to make," in addition to calling Plaintiff a "bitch" were mere stray remarks and did not constitute direct evidence of discrimination. The Court also explained away the five examples of differential treatment as not "sufficient circumstantial evidence of gender discrimination."

This case also contains a pro-employer conclusion regarding FMLA retaliation. Specifically, the Court upheld the dismissal of Plaintiff's FMLA-retaliation claim despite evidence that "the human resources department sent threatening letters to plaintiff while she was on leave" because that "evidence does not establish that plaintiff's medical leave was the reason for her termination...."

Click here for a copy of the Court's opinion.