Wagner Law Group is a nationally recognized practice in the areas of
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human resources and investment management.
in 1996, The Wagner Law Group is dedicated to the highest standards
of integrity, excellence and thought leadership and is considered to
be amongst the nation's premier ERISA and employee benefits law
firms. The firm has six offices across the country, providing
unparalleled legal advice to its clients, including large, small and
nonprofit corporations as well as individuals and government entities
worldwide. The Wagner Law Group's 28 attorneys, senior benefits
consultant and three paralegals combine many years of experience in
their fields of practice with a variety of backgrounds. Seven of
the attorneys are AV-rated by Martindale-Hubbell and six are
Fellows of the American College of Employee Benefits Counsel, an
invitation-only organization of nationally recognized employee
benefits lawyers. Seven of the firm's attorneys have
been named to the prestigious Super Lawyers list for 2016, which
highlights outstanding lawyers based on a rigorous selection process.
Wagner Law Group
Connecticut Ave., N.W.
Fax: (561) 293-3591
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Francisco, CA 94104
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St. Louis, MO 63119
July 27, 2017
Health and Welfare Law
Liability Theory Applies to FMLA Retaliation Claims
Sixth Circuit Court of Appeals, in Marshall v. The Rawlings
Company LLC, has issued a ruling that confirms the "cat's
paw" is a valid theory of liability for FMLA retaliation or
Background. Under the cat's paw theory of liability, an
employer may be liable when a supervisor who lacks bias is influenced
by a biased subordinate to take a negative employment action against
an employee. In this context, the cat's paw is the unbiased
supervisor who is misled by the biased individual into taking adverse
employment action against an employee who took FMLA leave. When an
employer takes an adverse employment action that is in accord with
the biased supervisor's recommendation, the employer can only escape
liability if it shows that it conducted an independent investigation
and determined that the adverse action was warranted.
retaliation claim involves an employee who claims that as a result of
taking protected FMLA leave, he or she has been subjected to a
materially adverse employment action by the employer, such as a
termination, demotion or decrease in salary.
interference claim must have the following two elements: (1) the
employer interfered, restrained, or denied the exercise of an
employee's FMLA rights, and (2) the interference directly resulted in
monetary loss to the employee.
Facts. An employee suffering with several mental health
issues was forced to take FMLA leave to seek treatment for these
conditions. When she returned to work, she was required to attend to
a backlog of projects that had accrued during her leave. As she
struggled to complete this backlog, she was demoted from "supervisor"
to "analyst," a position she held when she began working
for the company.
decision to demote the employee was made by the division supervisor,
who was influenced by the employee's direct supervisor. The direct
supervisor had previously ridiculed the employee about her use of
FMLA leave in front of her peers at a departmental meeting. In
response, the employee reported the harassment to her division
supervisor, who in turn reported the matter to the company's owner.
The owner decided to terminate the employee under the belief that her
allegation of FMLA harassment was false.
employee sued her employer in federal court claiming, among other
things, retaliation and interference under the FMLA. The district
court granted the company's motion to dismiss the claim without a
trial, and the employee appealed to the Sixth Circuit.
Circuit. In reversing the
district court, the Sixth Circuit relied on the cat's paw theory of
liability to determine that there was a genuine dispute about the
employer's liability for the FMLA claims. According to the Sixth
Circuit, the employee had submitted sufficient evidence to suggest
that her division supervisor was a conduit for her direct supervisor
which influenced the decision to demote her. This, in turn,
influenced the company's owner to terminate the employee.
Sixth Circuit next concluded that there was no evidence to suggest
that the employer conducted a thorough, independent investigation
before terminating the employee. Therefore, the court determined that
the company could not escape liability and proceeded to remand the
matter back to the lower court for further consideration.