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Cendant Corp. v. Commissioner of Labor10/25/2005
ave. . . . he intent of the employer is immaterial."). To underscore the immateriality of the employer's intent, some courts have described this attachment of liability to the employer absent a showing of intent as "strict liability." Cross v. Southwest Recreational Industries, Inc., 17 F. Sup. 2d 1362, 1368 (N.D. Ga. 1998) ("[Interference] claims . . . do not require that an employee prove that the employer acted with any particular intent--a mere showing that the employee was entitled to the benefit and the employer refused to provide it suffices to establish liability under the FMLA. The FMLA thus imposes strict liability upon employers who deny an FMLA entitlement to a qualified employee."). As we explain more fully later in this part of the opinion, the use of the term "strict liability" signifies only that an employee need not prove the employer's intent when claiming that the employer interfered with her rights under FMLA. Accordingly, with respect to interference claims alleging a denial of reinstatement, this strict liability scheme does not mandate that an employer be held liable for failing to reinstate an employee without consideration of the employer's reason for failing to reinstate the employee. An employer may overcome the attachment of so-called strict liability by demonstrating, by way of affirmative defense, that an employee would have been terminated even if she had not taken leave. Throneberry v. McGehee Desha County Hospital, 403 F.3d 972, 977 (8th Cir. 2005) ("an employer who interferes with an employee's FMLA rights will not be liable if the employer can prove it would have made the same decision had the employee not exercised the employee's FMLA rights"); O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1354 (11th Cir. 2000) (" e hold that when an `eligible employee' who was on FMLA leave alleges her employer denied her FMLA right to reinstatement, the employer has an opportunity to demonstrate that it would have discharged the employee even had she not been on FMLA leave"). Accordingly, the framework used by the majority of federal courts holds an employer strictly liable for interfering with an employee's right to reinstatement, and places on the employer the ultimate burden of proving that the employee would have been terminated even if she had not taken leave.
The Seventh Circuit Court of Appeals, however, has employed the McDonnell Douglas Corp. burden-shifting framework in analyzing interference claims, thus ultimately placing the burden of proving causation on the employee. In McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802, the United States Supreme Court established a now well-known burden-shifting framework governing claims of employment discrimination. In adopting this framework to analyze claims of interference under FMLA, the Seventh Circuit Court of Appeals reasoned in Rice v. Sunrise Express, Inc., supra, 209 F.3d 1018, that, because the FMLA precludes an employee who takes leave from receiving "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave"; 29 U.S.C. ยง 2614 (a) (3) (B); an employee must always bear the ultimate burden of establishing that she is entitled to the benefit with which she claims her employer interfered. Rice v. Sunrise Express, Inc., supra, 1018. Accordingly, under the McDonnell Douglas Corp. framework as adopted by the Seventh Circuit Court of Appeals, " f the employer wishes to claim that the benefit would not have been available even if the employee had not taken leave, the employer must submit evidence to support that assertion. When that burden of going forward has been met . . . the employee must ultimately convince t
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