Retal­i­a­tion law is one of the most devel­op­ing (and dan­ger­ous) areas of employ­ment law. I recent­ly spoke at the West Vir­ginia Employ­ment Lawyers Association’s annu­al con­fer­ence on retal­i­a­tion law, and I want­ed to go back and dis­cuss an impor­tant Fourth Cir­cuit deci­sion on the Fam­i­ly and Med­ical Leave Act of 1993, 29 U.S.C. § 2601 et seq.

Dotson v. Pfizer: Adoption and the FMLA

The deci­sion is Dot­son v. Pfiz­er Inc., 558 F.3d 284 (2009), and involved alle­ga­tions of retal­i­a­tion stem­ming from leave tak­en for an inter­na­tion­al adop­tion from Russia.

The jury award­ed $1,876 in dam­ages on the FMLA inter­fer­ence claim and $331,429.25 on FMLA retal­i­a­tion claim. The judge then award­ed $333,305.25 in statu­to­ry liq­ui­dat­ed dam­ages, $375,000 in attor­neys’ fees, and $14,264.88 in court costs. Both sides appealed. The Fourth Cir­cuit reject­ed all aspects of the employer’s appeal, but found the tri­al court made a mis­take in refus­ing to award the plain­tiff pre-judg­ment interest.

Employees Don’t Have to Expressly Invoke the FMLA on Leave Requests

Part of the sig­nif­i­cance of the Dot­son case is that the Fourth Cir­cuit held that the employ­ee, to invoke rights under the FMLA, need only tell the employ­er of the need for leave that is cov­ered by the FMLA ‑the employ­ee need not express­ly invoke the FMLA as the basis or jus­ti­fi­ca­tion for the leave. The employ­er then has the duty to exam­ine the sit­u­a­tion and deter­mine whether the request­ed leave impli­cates the employee’s FMLA rights. Here is an illus­tra­tion of the 2 dif­fer­ent pos­si­ble require­ments that were in issue in Dot­son:

• Employee’s posi­tion on notice: Employ­ee says: “Boss, I need some time off for the inter­na­tion­al adop­tion my wife and I are involved in. We have a meet­ing with the adop­tion agency tomor­row after­noon, and I’d like to take the after­noon off.” This is the only notice that the employ­ee con­tend­ed was nec­es­sary in order to invoke FMLA rights, and the Fourth Cir­cuit agreed, based on a review of the case law and the applic­a­ble reg­u­la­tions. After the employ­ee makes this request, the ball is in the employer’s court to fig­ure out whether the leave is cov­ered by the FMLA.
• Employer’s posi­tion on notice: Employ­ee says: “Boss, I am request­ing FMLA leave. I need some time off for the inter­na­tion­al adop­tion my wife and I are involved in. We have a meet­ing with the adop­tion agency tomor­row after­noon, and I’d like use my FMLA leave to take the after­noon off.” This is the notice the employ­er con­tend­ed was nec­es­sary. The employ­er con­tend­ed that, at least in the set­ting of adop­tion leave, the employ­ee must specif­i­cal­ly tell the employ­er that the employ­ee wants to take FMLA leave. The Fourth Cir­cuit reject­ed this argu­ment, and reject­ed the need for the employ­ee to specif­i­cal­ly invoke the FMLA.

Part of the fur­ther sig­nif­i­cance of Dot­son is that the prin­ci­ples of notice dis­cussed above apply to a retal­i­a­tion claim under the FMLA. Dot­son asked for and was giv­en leave for his adop­tion, and he got fired short­ly after return­ing to the Unit­ed State from Rus­sia on his adop­tion. He filed suit and won on the con­tention that Pfiz­er fired him in retal­i­a­tion for him tak­ing FMLA leave. Pfiz­er con­tend­ed: “hey, we can’t be liable for FMLA retal­i­a­tion, because he nev­er told us he was tak­ing FMLA leave–he only said he want­ed time off for the adop­tion.” The log­ic of that argu­ment is, “we can’t be liable for retal­i­a­tion where he didn’t specif­i­cal­ly invoke the FMLA right”. The tri­al court and the Fourth Cir­cuit both dis­agreed with the employ­er, and held that a retal­i­a­tion claim may be viable even where the employ­ee only said he want­ed time off for the adoption–without specif­i­cal­ly invok­ing the FMLA.

Lessons from Dotson v. Pfizer

So the request from the employ­ee for cov­ered time off (such as for an adop­tion), with­out express­ly invok­ing the FMLA, rais­es two issues for employers:

• The employ­er must assess the request for time off and deter­mine whether it invokes the rights under the FMLA.
• The employ­er must be aware of the fact that, once it deter­mines that the request for time off is cov­ered by the FMLA, any adverse action tak­en against the employ­ee could give rise to a retal­i­a­tion claim, even where the employ­ee nev­er men­tioned the FMLA in con­nec­tion with request­ing the time off.

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Drew M. Capuder

Attorney at Capuder Fantasia PLLC

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 30 years of experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261.

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