Brian Sutherland, Buckley Beal (Photo: Handout)

The U.S. Supreme Court declined to hear a case that could have resolved a split-circuit dispute over the standard of evidence needed for an employee’s retaliation claim to survive summary judgment under the Family and Medical Leave Act.

Many courts, including those at the circuit level, have required that such claims meet the “but for” standard the high court set for Title VII civil rights claims in 2013. That standard requires an employee to show that, but for his exercise of the protected action, he would not have faced retaliation and that the reason for the retaliation was simply a pretext.

Others, however, have adopted the less stringent “motivating factor” or “mixed motive” standard, under which an employee can survive summary judgment by proving a protected activity was but one factor in an employment action. Last year, in a ruling issued while the case was on appeal, the U.S. Court of Appeals for the Eleventh Circuit became the ninth circuit court to adopt the looser standard for other types of claims, according to court filings.

The Oct. 16 denial of certiorari in a case where dismissal in Georgia’s Southern District was upheld by the Eleventh Circuit spells the demise for a man’s claim that he was fired in retaliation for requesting time off under Family Medical Leave Act (FMLA) after his unborn baby was diagnosed with birth defects.

Buckley Beal partner Brian Sutherland said that, in addition to allowing the nation’s top court to clarify the evidentiary standard in such disputes, the case could have corrected the Eleventh Circuit’s pushing aside of its own recent ruling relaxing the standards for “motivating factor” claims.

“I understand that the Supreme Court is a busy court, but the circuit courts of appeal are the end of the road in many cases,” said Sutherland. “The Eleventh Circuit’s decision in our case did not decide which standard applies in FLMA cases. That’s why we asked the Supreme Court to decide.”

The case began when Duane Bartels, a general manager at Southern Motors Acura in Savannah, learned his unborn daughter had a developmental problem that left her bones underdeveloped and severely curved.

According to court filings, Bartels told his superiors about the situation and attended several doctor’s appointments over the next few days. Five days after learning of the child’s condition, one of his superiors who had commiserated with Bartels called him and said “life goes on, we have a business to run, you need to get back to work.”

That evening, Bartels attended a managers’ meeting and was presented the “Top Manager” award for the month. Six days later, he was fired during a meeting where he was told the termination was “purely a business decision” and that he would be getting three months’ severance pay.

After Bartels was fired, the dealership contested his bid for unemployment insurance with the Georgia Department of Labor by offering several reasons why he was fired, including allegations that he failed to work well with others, failed to meet minimum sales standards and created a hostile workplace.

During discovery, the dealership’s owners reportedly abandoned those claims but said Bartels was fired for using profanity in front of a woman two days after finding out about his child’s condition. Bartels called the woman and apologized.

In 2014, Bartels sued for interference and retaliation in violation of the FLMA.

Bartels provided several examples of co-workers who engaged in misconduct on the job including fighting and drug use but were nonetheless retained. He also provided instances of others who were terminated after seeking FMLA time off.

District Judge Randall Hall agreed Bartels engaged in protected activity under the FMLA but ruled the employers’ reassurances Bartels did nothing wrong were the result of “sympathy.”

The court “is left only with the close temporal proximity” between Bartels’ FMLA notice and his firing, Hall wrote in dismissing the case. “Without more, the court cannot conclude that a genuine dispute exists as to whether [Bartels’] termination was pretextual.”

Just before Hall’s decision, the Eleventh Circuit released its 2016 opinion in Quigg v. Thomas County School District, 814 F.3d. 1227. That opinion relaxed the standard for an employment action to survive summary judgment, stipulating it need only demonstrate that a protected action may have been among the motivations for an adverse action.

In March 2017, Eleventh Circuit Judges Frank Hull, Stanley Marcus and Peter Fay issued an unpublished opinion upholding Hall.

In appealing to the Supreme Court, Bartels’ brief said the panel “ignored the fact that Quigg was an intervening decision that changed the standard for motivating for cases like this one.”

The appellate panel’s opinion also opined that the case would have been dismissed under the Quigg standard, as well, because of the profanity incident.

“Such a holding is so absurd in light of the record evidence that it amounts to a refusal to apply the motivating factor standard,” Bartels’ brief said.

“Our point of view is that it is a miscarriage of justice because it wasn’t analyzed under the new standard,” said Sutherland. “They said they couldn’t because the issue wasn’t raised on appeal, but we couldn’t raise it because it was an intervening decision.”