The Fifth Circuit in Elsensohn v. St. Tammany Parish Sheriff's Office, No. 07-30693, 2008 U.S. App. LEXIS 12209 (5th Cir. June 6, 2008) recently addressed whether an employee may sue his employer for retaliation in violation of the FMLA because of his association with his wife, who filed a lawsuit against the same employer alleging violations of the FMLA.
Lawrence and Wendelle Elsensohn, husband and wife, were both employed by the defendant Sheriff's Office. Wendelle sued the Sheriff's Office alleging violations of the FMLA. Lawrence testified that at all times he attempted not to involve himself in his wife's claim except to provide moral support. If the matter went to trial, however, Lawrence would testify as a witness, a fact known by his superiors in the Sheriff's Office.
Mrs. Elsensohn settled her lawsuit in October 2004, and subsequently left the Sheriff's Office. Lawrence remained, where he received excellent job reviews. Beginning in January 2006, Lawrence applied for several promotions. He was denied every promotion for which he applied. He was subsequently told by his supervisor that he would not receive a promotion of any kind. Lawrence sued after being transferred to a less desirable night shift. He alleged FMLA interference and retaliation for association with his wife who had opposed Defendant's unlawful practices related to the FMLA.
The Fifth Circuit affirmed the determination of the district court that the FMLA does not permit a spouse to bring a derivative FMLA claim based solely on the protected activity of the other spouse. In so finding, the Fifth Circuit noted a split in the courts on this issue involving Title VII, the ADEA, and the ADA. The Court elected to follow precedent in an ADEA case, where it declined to broaden the anti-retaliation provisions of that statute to permit an employee who has not engaged in protected activity to maintain a retaliation claim based solely on their association with an employee who has engaged in protected activity. In so finding, the Fifth Circuit noted that the anti-retaliation protections of the ADEA are greater than the protections afforded under the FMLA. The Court also noted that the plain language of the FMLA does not recognize derivative retaliation claims.
Comment: To maintian an FMLA retaliation claim in the Fifth Circuit an employee must actually engage in protected activity. Protected activity covers any individual who was about to give or has given any information or testimony in any inquiry or proceeding relating to FMLA rights. Absent engagement in protected activity, a familial or other relationship with another employee who has engaged in protected activity is not enough.
Given the split in the circuits on this issue, whether an employee will be able to maintain a derivative FMLA retaliation claim may depend on the precedent in that circuit regarding the anti-retaliation provisions of other anti-discrimination statutes.
Note that the Fifth Circuit also rejected the Elsensohn's claim that he engaged in protected activity because (1) he "was about to give information" in connection with an inquiry on his wife's FMLA case; and (2) but for the fact that his wife's claim settled, he was about to testify hin support of her claim. The Court found that Mr. Elsensohn did not engage in protected activity, noting that he was never questioned by his employer regarding his wife's claim, he testified that at all times he kept his distance from his wife's claim, and that the alleged retaliatory conduct (the denial of promotions) occurred well after his wife's case had settled.
The Fifth Circuit covers Texas, Lousiana, and Mississippi.
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