Employers and their counsel face the spectre of the Family and Medical Leave Act (FMLA) retaliation on a seemingly daily basis. Managers are often frustrated by an employee’s absence and may find that the department continues to function successfully during the employee’s absence. The employee’s return (or continuation of the leave if intermittent) may not go smoothly and whether his employment continues, an FMLA retaliation claim may ensue. In Egan v. Delaware River Port Authority, No. 16-1471, 2017 U.S. App. LEXIS 4993 (3rd Cir. March 21), the U.S. Court of Appeals for the Third Circuit affirmed the existence of a cause of action for FMLA retaliation and eased the burden on employees by allowing claims to proceed on a “mixed-motive” theory without “direct evidence” of discrimination for employees to prevail in subsequent litigation.
Headaches Increased And Assignment Ends
Joseph Egan worked for the Port Authority as a projects manager for special projects from July 2008 to February 2012. At that time, he was transferred to a “special assignment” in the engineering department. He suffered from migraine headaches, the frequency of which increased “almost instantaneously” with his transfer to the engineering department. Egan began an intermittent FMLA leave in April 2012.
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