The Family and Medical Leave Act (FMLA) prohibits employers from retaliating against employees who have taken FMLA leave. In Parker v. United Airlines, Inc., which was recently appealed to the United States Court of Appeals for the Tenth Circuit, the plaintiff argued that her termination violated the FMLA on the basis that her immediate supervisor’s recommendation regarding this lawsuit employment matter was based on retaliation. She further claimed that her employer was responsible for this retaliation under the so-called “cat’s paw theory”; that the flawed recommendation of the supervisor was adopted by the employer who made the final decision to terminate his employment. However, on September 26, 2022, the Tenth Circuit ruled that this theory of liability does not apply when the employer conducts an independent review of the evidence when making the final termination decision.
Parker’s job was to take calls from United customers looking to book flights. About five months after approving Parker for FMLA leave, his supervisor suspected Parker of deliberately avoiding such calls by putting customers on hold and forcing them to wait. Parker was suspended and her supervisor recommended that she be fired. However, the supervisor did not have the authority to fire Parker. United policies required a separate manager to hold an investigation meeting that allowed Parker, his supervisor and a union representative to attend. Such a meeting took place and the manager eventually decided to fire Parker based on evidence of Parker’s poor performance.
Parker sued United alleging the company fired her in retaliation for exercising her FMLA rights. The District Court granted summary judgment in favor of United, and Parker appealed to the Tenth Circuit. Parker argued that liability against United could be inferred because the manager who made the dismissal decision “relyed” on information from the allegedly biased supervisor regarding Parker’s job performance.
While assuming that the cat’s paw theory can be applied in the FMLA cases, the Tenth Circuit rejected Parker’s arguments that the evidence supported a finding of liability under that theory. The court found that “United broke the chain of causation by ordering other managers to independently investigate and decide whether or not to adopt the supervisor’s recommendation.” The court found no evidence that the director’s investigation was influenced by the supervisor’s alleged bias or that the director failed to conduct an independent review of the evidence presented. Therefore, Parker failed to prove that the manager’s final decision was based on a retaliatory motive.
This case is instructive for employers engaged in any disciplinary action or termination of an employee. Employers often receive information from front-line supervisors regarding employee performance and conduct-related issues, as well as requests from those supervisors to take certain employment actions. However, a prudent employer should carefully and critically evaluate the matter before approving an adverse employment action. An independent review of relevant evidence, including interviews with the supervisor, the employee under review and any witnesses, is necessary to establish the facts and determine whether disciplinary action or termination is warranted in the circumstances. Such investigation should be undertaken by members of management and/or human resources who are independent of the persons presenting the information or making the recommendations. Careful consideration should also be given to consistently applying company policy and practices to avoid allegations of disparate treatment, discrimination or retaliation. The labor lawyer can also be helpful in assessing potential risk.