Chapter 6 - § 6.16 • FMLA PROHIBITS INTERFERENCE, RETALIATION, OR DISCRIMINATION

• Jurisdiction: Colorado

§ 6.16 • FMLA PROHIBITS INTERFERENCE, RETALIATION, OR DISCRIMINATION

The FMLA prohibits any employer from interfering with any employee's attempt to use leave pursuant to the FMLA. 29 U.S.C. §§ 2615(a)(1), 2617(a); 29 C.F.R. § 825.220. The FMLA also prohibits any employer from retaliating or discriminating against any employee for the employee's use of the FMLA. 29 U.S.C. §§ 2615; 29 C.F.R. § 825.220. Claims alleging violations of the anti-interference or anti-discrimination provisions of the FMLA may be brought by the Secretary of Labor on behalf of an employee, or directly by the employee. 29 C.F.R. § 825.400. Claims for either interference or discrimination are conditioned upon a finding that an employee was lawfully entitled to leave pursuant to the FMLA. Wilkins v. Packerware Corp., 260 F. App'x 98, 104 (10th Cir. 2008); see also Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007).

An employee who qualifies for FMLA leave and who gives an employer notice of intent to take that leave has engaged in protected activity for purposes of an FMLA retaliation claim, given that a provision of foreseeable FMLA leave is to provide the employer "not less than 30 days' notice." 29 U.S.C. § 2612(e)(2); Wehrley v. Am. Family Mut. Ins. Co., 513 F. App'x 733, 742-43 (10th Cir. 2013) (citing Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1276 n. 8 (11th Cir. 2012); Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009); Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001)).

§ 6.16.1—Claims Of Interference

A claim for relief arising from alleged violations of the prohibition against interference is referred to as the entitlement or interference theory of recovery. 29 U.S.C. § 2615(a)(1) provides, in relevant part: "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" by the FMLA. 29 C.F.R. § 825.220 explains "interfering" with an employee's FMLA rights to include "not only refusing to authorize FMLA leave, but discouraging an employee from using such leave"; however, [t]he Tenth Circuit has not issued a ruling on "what constitutes 'discouraging an employee from using' FMLA leave." Robinson v. Univ. of Denver, 2021 U.S. Dist. LEXIS 31031, at *12 (D. Colo. Feb. 19, 2021).

To establish a prima facie case of an FMLA interference claim, a plaintiff must show that: (1) he or she was entitled to FMLA leave; (2) some...