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Second Circuit Analyzes Scope of Material Adverse Employment Actions in a Family Medical Leave Act Retaliation Claim

Written by Michael Arnold

Last week, the Second Circuit Court of Appeals in Millea v. Metro-North R.R. Co., --- F.3d ----, 2011 WL 3437513 (2d Cir. Aug. 8, 2011), found that  a “material adverse employment action” in the context of a Family Medical Leave Act (“FMLA”) retaliation claim need not be all that “material” .

The FMLA entitles eligible employees to take unpaid, job-protected leave for certain family and medical reasons and prohibits employers from retaliating against an employee exercising their FMLA rights.  In Millea, the plaintiff claimed his employer retaliated against him by, among other things, issuing a formal reprimand after he took medical leave to recover from a panic attack.


At trial, the lower court instructed the jury that to find for the plaintiff on his FMLA retaliation claim, he had to show that his employer took an “adverse employment action” against him for exercising his FMLA rights, and that an “adverse employment action” was a “material” change in the plaintiff’s terms and conditions of plaintiffs’ employment (i.e. termination, demotion, pay decrease, loss of benefits, etc.).  After the jury found for the employer on the retaliation claim, the plaintiff appealed arguing the jury instruction was both erroneous and prejudicial.

The Second Circuit agreed finding that the lower court’s definition of “materially adverse” was “impermissibly narrow.”  The Second Circuit found that, like Title VII retaliation claims, where an employee alleges retaliation for making or supporting a charge of discrimination, an adverse employment action was not limited to a material change in the terms and condition of employment; rather, it also encompassed any action “that is likely to dissuade a reasonable worker in the plaintiff’s position from exercising his legal rights.”  The Second Circuit joins the Third, Fourth, Fifth, Seventh and Tenth Circuit Courts of Appeals in reaching this decision.

The Second Circuit went on to conclude that the absence of the proper instruction prejudiced plaintiff because the jury was unable to consider whether a formal reprimand issued by his employer – an action that did not necessarily change the terms and conditions of the plaintiff’s employment – would have still dissuaded a reasonable worker from exercising his FMLA rights.

This decision will certainly give some pause to employers.  They will have to be even more careful to ensure that their supervisors and other members of management do not retaliate against employees exercising their FMLA rights.  Employers should ensure that they have anti-retaliation policies and procedures in place, that they communicate them to their workforce regularly, and that they apply them in a consistent manner.   Employers should also train supervisors to ensure their awareness of FMLA leave entitlements and the contours of potentially retaliatory conduct, including how to recognize protected activity and how to avoid retaliating against an employee engaging in protected activity.

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Martha Zackin