excerpts – In Campbell v. Gambro Healthcare, Inc.C.A.10 (Kan.), 2007, the Tenth Circuit Court of Appeals permitted the use of an FMLA interference claim despite circumstances that would normally limit a plaintiff to pursuing an FMLA retaliation claim. Employer’s reliance on only events occurring before employee’s FMLA leave warranted interference claim.

The appeals court started its analysis with an explanation of the difference between an interference claim and a retaliation claim. To establish an interference claim, Campbell had to demonstrate: (1) that she was entitled to FMLA leave, (2) that some adverse action by the employer interfered with her right to take FMLA leave, and (3) that the employer’s action was related to the exercise or attempted exercise of her FMLA rights.

To make out a prima facie retaliation claim, Campbell must show that: (1) she engaged in a protected activity; (2) Gambro took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the protected activity and the adverse action. To satisfy the third prong under a retaliation theory to be a showing of bad intent or a retaliatory motive on the part of the employer.

FMLA Retaliation claims are evaluated pursuant to the burden shifting approach of McDonnel Douglas. For interference claims, the employer bears the burden of proof on the third element (that the employer’s action was related to the exercise or attempted exercise of her FMLA rights) once the plaintiff has shown her FMLA leave was interfered with.

The appeals court explained further differences between interference and retaliation claims beyond burden of proof differences. Interference and retaliation claims also differ in terms of the timing of the adverse action. In an interference claim, in order to show that some adverse action by the employer interfered with the employee’s right to take FMLA leave, the employee must show that she was prevented from taking the full 12 weeks’ of leave guaranteed by the FMLA, denied reinstatement following leave, or denied initial permission to take leave.

A retaliation claim differs in that it may be brought ” when the employee successfully took FMLA leave, was restored to her prior employment status, and was adversely affected by an employment action based on incidents post-dating her return to work.”

Based on these explanations of the two claims, it would seem that Campbell was limited to bringing a retaliation claim as the district court ruled when dismissing Campbell interference claim; however, the appeals court found otherwise: ” When, as is the situation before us, the employer cites only factors predating the employee’s return to work to justify the adverse action, the plaintiff is not foreclosed from bringing an interference claim. To hold otherwise would create a perverse incentive for employers to make the decision to terminate during an employee’s FMLA leave, but allow the employee to return for a brief period before terminating her so as to insulate the employer from an interference claim.”

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