In a recent decision from the United States Court of Appeals for the Seventh Circuit, the court ruled that the burden shifting analysis utilized by the federal courts since 1973 in most employment discrimination cases does not apply to substantive claims under the Family and Medical Leave Act ("FMLA"), In Diaz v. Fort Wayne Foundry Corp., the court affirmed the district court's grant of summary judgment to the employer, which had been sued by its former employee, Alfredo Diaz. Diaz sued the Foundry after he was discharged for failing to return to work following a one month protected medical leave of absence. Because his initial leave was protected, Diaz claimed the employer violated the terms of the FMLA by firing him. While the court noted that the FMLA has an anti-discrimination clause which prohibits employers from discriminating against workers who assert FMLA rights, in this particular case
Diaz had not alleged discrimination. Accordingly, while the court affirmed the lower court's grant of summary judgment to the Foundry, the court held that in reaching its decision, the lower court had improperly relied upon the United States Supreme Court's decision in McDonnell Douglas Corp. v. Green -- the decision which establishes the basic legal framework for allocating burdens of proof in most employment discrimination cases.
In this case, Diaz had been granted a one month medical leave from his job in Indiana after being diagnosed with bronchitis. Diaz, however, did not report to work on his scheduled return date. Instead, Diaz called the Foundry the following day to inform them that he was undergoing treatment in Mexico and that a new, different doctor would be contacting the Foundry in a few days with additional information. Approximately one week later, the employer received a note from another doctor who said that Diaz was suffering from a variety of medical conditions, none of which were related to the original diagnosis of bronchitis from Diaz's first doctor. Based on this information, the employer postponed Diaz's return to work for another two weeks. Diaz, however, again failed to report to work on the appointed date. Because of the disparity of opinions presented by Diaz's two doctors, the Foundry, relying upon the provisions of the FMLA, thereafter directed Diaz to appear for a physical examination by a company physician on June 8. Diaz, true to form failed to report for this exam: and was fired on June 15.
Writing for the court, Judge Easterbrook stated that the question in a discrimination case is whether the employer treated one employee worse than another on account of their race, religion, sex, age, etc. Easterbrook noted, however, that unlike employment discrimination statutes, the FMLA creates substantive rights which employers must comply with, irrespective of how they have treated other workers in the past. In this regard, the court likened the FMLA to the National Labor Relations Act, the Fair Labor Standards Act, and the Employee Retirement Income Security Act ("ERISA"). In the court's opinion, in cases involving a claimed violation of the FMLA, the issue is not whether the employer treated the employee fairly, but rather: 1) whether the employee is entitled to the FMLA right they are asserting; and 2) whether the employer respected this claimed right. In resolving the case, the court held that because Diaz did not report for his physical, he was absent without leave and, therefore, could not rely on the protections of the FMLA to avoid his discharge.