Virginia Lawyers Weekly//September 7, 2023
Virginia Lawyers Weekly//September 7, 2023//
Where a former national intelligence official asserted a claim for interference under the FMLA based on her non-selection for a permanent position, but the record reflected several reasons for her non-selection independent of the FMLA interference, the agency prevailed on the claim.
Hannah P., a former employee of the Office of the Director of National Intelligence, or ODNI, asserts that ODNI violated the FMLA by delaying her leave request and not hiring her for a permanent position. The district court determined that appellant failed to meet her burden of proof to demonstrate that she was not selected for the permanent position “by reason of” ODNI’s FMLA interference.
Where, as here, the FMLA interference occurs before the adverse employment action, the employee must first prove that the interference caused the adverse employment action before the burden shifts to the employer to prove it would have taken the same action absent the interference. Thus, the threshold issue the court confronts today is whether appellant met her burden to prove that ODNI’s April FMLA interference caused her not to be hired for the cyber position.
Appellant argues that the FMLA interference worsened her attendance problems, and that as a result of these attendance problems, she was not selected for the cyber position. However, the district court found that Chief Management Officer Mark Ewing’s words and actions provided several reasons for appellant’s non-selection.
Appellant also argues that because “employers cannot use the taking of FMLA leave as a negative factor in employment actions,” she should prevail “merely by proving that ODNI considered her April leave as a ‘negative factor’ in its Cyber hiring decision.” But appellant has not pointed to any evidence suggesting that Ewing took appellant’s actual leave or even her request for leave as a negative factor in his decision not to hire her for the cyber position.
At bottom, appellant simply disagrees with the district court’s finding that Ewing’s mind was made up not to hire her for the cyber position independent of the FMLA interference. But under clear error review, this court must affirm factual findings if they are “plausible in light of the [entire] record,” “even though convinced that had [this court] been sitting as the trier of fact, [it] would have weighed the evidence differently.”
Appellant cannot avoid the reality that causation of harm is part of her burden of proof, and the district court found that Ewing’s decision was based on appellant’s conduct before the FMLA interference occurred and therefore was not caused by that interference. Because this finding is not clearly erroneous, the district court properly denied damages based on appellant’s non-selection for the cyber position.
Even assuming appellant met her initial burden to demonstrate that ODNI’s FMLA interference caused her alleged damages, the issue of whether ODNI successfully demonstrated that it would have made the same decision absent the FMLA interference has already been resolved by this court’s previous decision in this case that affirmed the entry of summary judgment on appellant’s Rehabilitation Act and FMLA retaliation claims.
Gregory, J., dissenting:
Fourth Circuit precedent instructs us to apply the “same-decision test” when a plaintiff alleges that her employer’s FMLA interference caused her to suffer an adverse employment action. Correctly understood, that test follows a two-step, burden-shifting analysis ….
The majority misapplies the test by holding that the burden shifts to the employer only if the plaintiff first proves but-for causation. If we apply the correct causation standard, the record compels us to find that ODNI’s interference with Hannah’s FMLA rights caused her non-selection for the permanent position. For that reason, I respectfully dissent.
Hannah P v. Haines, Case No. 22-1498, Aug. 15, 2023. 4th Cir. (Thacker), from EDVA at Alexandria (Brinkema). Timothy Bosson for Appellant. Caroline D. Lopez for Appellee. VLW 023-2-228. 55 pp.