FMLA Interference v. Retaliation—No Interference Claim Where No Denial of FMLA Benefits

In the case of Downs v. Winchester Medical Center, et al., No. 5:13cv00083, the United States District Court for the Western District of Virginia addressed the question of what constitutes a claim for interference in violation of the FMLA.  The plaintiff in this case asserted claims of both interference and retaliation in violation of the FMLA.  However, the only allegations supporting the interference claims were the allegations of harassment, negative reviews, discipline and termination that also supported her FMLA retaliation claim. The court agreed that while the plaintiff had properly stated a claim for retaliation in violation of the FMLA based upon these allegations, they did not support a claim for FMLA interference.

Downs did not claim that she was denied FMLA leave and, in fact, her counsel admitted at oral argument that she was not ever prevented from taking FMLA leave. Downs also did not contend that she would have taken additional leave had she not been discouraged from doing so by her employer. Instead, Downs’ claim of interference was based on discipline, negative performance reviews, harassment, and her termination by her employer.

The court examined a pertinent regulation under the FMLA, which provides that the FMLA’s “prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. . . . employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions.” 29 C.F.R. § 825.220(c). Although this regulation refers to interference, the court explained that violations of this regulation have been interpreted by a number of courts, including the Third Circuit, as retaliation claims. Downs, p. 4. Further, the court explained, “[w]hile the Fourth Circuit has not expressed itself in terms as explicit as the Third, it is nevertheless clear that it views ‘the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions’ as set forth in § 825.550(c) as FMLA retaliation, not interference.” Id. (quoting Dotson v. Pfizer, Inc., 558 F.3d 284 (4th Cir. 2009)). Additionally, noted the court, many district courts within the Fourth Circuit had interpreted violations of this provision as retaliation claims. Id., p. 5.

Moreover, found the district court, because the plaintiff had not alleged that she was actually denied any FMLA benefits, she had not alleged any prejudice related to the FMLA interference. Id., p. 6. “Instead, Downs alleges harms as a result of the subsequent actions her employer allegedly took in retaliation for her use [sic] FMLA leave.” Id. Under these circumstances, the court found, her allegations only stated a claim of retaliation and not a claim of interference in violation of the FMLA.