Second Circuit Adopts Burlington Northern Standard for Materially Adverse Employment Action in FMLA Retaliation Claim

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Millea v. Metro-North Railroad Company, Nos. 10-CV-409/564, 2011 BL 205288 (2d Cir. Aug. 8, 2011) Joining five other circuits, the U.S. Court of Appeals for the Second Circuit held that the definition of "materially adverse employment action" set forth in Burlington Northern & Santa Fe Railroad Co. v. White, 548 U.S. 53, 68 (2006), applied to Christopher Millea's retaliation claim under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., against Metro-North Railroad Company (MNR), and that Millea was entitled to a retrial on that claim. The Court also held that the district court abused its discretion in reducing the $145,000 fee award that Millea's attorney requested to $200 by ignoring the lodestar method and computing the fee as a proportion of the other damages awarded. Finally, the Court affirmed the district court's denial of MNR's motion for judgment as a matter of law on Millea's FMLA interference claim.

Millea is Disciplined for Violating MNR's Policy after Taking FMLA Leave

In 2001, MNR hired Millea, who suffered from severe post-traumatic stress disorder. Because of his condition, Millea sometimes required time off from work on short notice to deal with unpredictable panic attacks and exhaustion. In 2005, MNR granted Millea's application for special FMLA leave, allowing him 60 days of intermittent FMLA leave for 2006. In September 2006, Millea had a contentious phone conversation with his supervisor, Earl Vaughn, that triggered a panic attack. Millea left work immediately to see his doctor. Because his disagreement with Vaughn resulted in his panic attack, he did not notify Vaughn of his unforeseen need for FMLA leave. He did, however, notify Garrett Sullivan, the Lead Clerk, and asked him to inform Vaughn, which Sullivan did. Early the next day, Millea phoned Sullivan to report that he was taking another day of FMLA leave and again requested that Sullivan notify Vaughn. MNR's internal leave policy stated that, "[i]f the need for FMLA leave is not foreseeable, employees must give notice to their supervisor as soon as possible." Although Vaughn received timely but indirect notice of Millea's two absences, Vaughn instructed MNR's payroll department to count the absences as non-FMLA leave because he did not receive notice from Millea directly. MNR also conducted an official investigation of Millea, after which a formal Notice of Discipline was placed in his file. After a year without additional disciplinary incidents, the Notice was expunged from Millea's file. Following the investigation, Millea voluntarily transferred to a job under a different supervisor that paid slightly less.

Millea Prevails at Trial on FMLA Interference Claim, but Not Retaliation Claim

In 2006, Millea sued MNR in the District of Connecticut, alleging that the employer: (1) interfered with his ability to take FMLA leave in violation of 29 U.S.C. § 2615(a)(1); (2) retaliated against him for taking FMLA leave in violation of 29 U.S.C. § 2615(a)(2); and (3) subjected him to intentional infliction of emotional distress by denying his FMLA rights and disciplining him for exercising them. After a May 2009 trial, the jury returned a verdict for Millea on his interference claim, awarding him $612.50 in lost wages and other damages, but ruled for MNR on Millea's other claims. The district court awarded Millea only $204 in attorneys' fees, a drastic reduction from the requested $144,792, and denied MNR's motion for judgment as a matter of law on Millea's interference claim. Millea v. Metro-North Railroad Company, No. 06-CV-1929, 2010 BL 9169 (D. Conn. Jan. 8, 2010). Both parties appealed.


Although MNR admitted that Millea was entitled to take FMLA leave and that it disciplined him for using such leave, it contended that the discipline was warranted as a matter of law because Millea failed to comply with the company's internal leave policy mandating direct notification of a supervisor when FMLA leave is taken. Although it was uncontested that an employer may discipline an employee for violating a lawful internal leave policy, the Court found that MNR's policy was inconsistent with the FMLA. As the Second Circuit stated, the FMLA requires that employees "comply with the employer's usual and customary notice and procedural requirements for requesting leave." 29 C.F.R. § 825.303(c). This requirement is relaxed when the employer's policy conflicts with the FMLA or under "unusual circumstances." When leave is unforeseeable, the FMLA regulations permit an employee's spokesperson to give notice "if the employee is unable to do so personally." The Court held that MNR's policy conflicted with the FMLA because the regulations explicitly allow for indirect notification of unforeseeable leave when the employee cannot achieve direct notification. The Court therefore declined to second-guess the jury's finding that Millea provided proper notice under the FMLA and the legally valid portions of MNR's leave policy.


As to Millea's retaliation claim, plaintiff's counsel had sought a jury instruction using the definition of "materially adverse employment action" that the Supreme Court set forth in Burlington Northern, a retaliation case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Pursuant to Burlington Northern, a materially adverse action is one "that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." 548 U.S. at 68. The district court denied Millea's request, instead instructing the jury that a material adverse action was limited to alterations in an employee's terms and conditions of employment. The Second Circuit concluded that Burlington Northern's rationale of precluding employers from deterring employees from exercising their legal rights applied equally to the FMLA's anti-retaliation provision, 29 U.S.C. § 2615(a)(2), which is practically identical to Title VII's. See 42 U.S.C. § 2000e-3(a). The Court then joined five other circuits and held that the Burlington Northern definition of "materially adverse" applied to FMLA retaliation claims. See Breneisen v. Motorola, Inc., 512 F.3d 972, 979 (7th Cir. 2008); Metzler v. Federal Home Loan Bank of Topeka, 464 F.3d 1164, 1171 n.2 (10th Cir. 2006); McArdle v. Dell Products, L.P., 293 Fed. App'x 331, 337 (5th Cir. 2008) (unpubl.), discussed in Bloomberg Law Reports, Labor & Employment, Vol. 2, No. 40 (Oct. 6, 2008); DiCampli v. Korman Communties, 257 Fed. App'x 497, 500-01 (3d Cir. 2007) (unpubl.); Csicsmann v. Sallada, 211 Fed App'x 163, 167-68 (4th Cir. 2006) (unpubl.). The Court thus held that the district court's instruction was erroneous and agreed with Millea that such error was reversible as to his claim that MNR's placement of the formal letter of reprimand in his file was retaliatory. The Court concluded that Millea was entitled to a new trial on that claim because the jury could have found that the letter of reprimand was retaliatory under the correct instruction.


The Court next noted that the FMLA provides a district court "shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee." 29 U.S.C. § 2617(a)(3). The trial court substantially reduced Millea's attorney's fee award from the requested $144,792 to $204, which represented one-third of Millea's recovery of $612.50 in lost wages and other damages on his interference claim. The Court agreed with Millea that the district court erred and should have applied the lodestar calculation method — the product of a reasonable hourly rate and the reasonable number of hours spent — as a starting point for determining a "presumptively reasonable fee." See Arbor Hill Concerned Citizens Neighborhood Assoc. v. County of Albany, 522 F.3d 182, 183 (2d Cir. 2008). The Court rejected the four reasons the district court used to justify reducing Millea's requested fee award: (1) Millea's case was not especially complex; (2) the interference claim had no public policy significance; (3) Millea did not prevail on his retaliation and emotional distress claims; and (4) Millea's recovery was de minimis. The Court concluded that the district court should not have disregarded the lodestar method and computed the fee as a proportion of damages, opining that the proportionate calculation was antithetical to the purpose of fee-shifting statutes: to enable civil rights plaintiffs with claims of relatively low cash value to attract competent counsel. As the Court explained, "[t]he whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery."

Practical Considerations

Employers should take note that retaliation claims are being filed with increased frequency and statutes such as the FMLA and the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., contain retaliation provisions similar to Title VII and other nondiscrimination statutes. See Bloomberg Law Reports, Labor & Employment, The Expanding Scope and Number of Retaliation Claims — How to Avoid Lawsuits and Minimize Risk, Vol. 5, No. 8 (Feb. 22, 2011). As always, employers should be vigilant about training supervisors not to take adverse actions against employees for exercising legal rights and to document the reasons when such actions are warranted. Disclaimer This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy. ©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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