1. Sanders v. City of Newport Tom Jantunen April 6, 2011

2. Sanders v. City of Newport  Procedural History  Facts  Family Medical Leave Act  Opinion

3.  Ten Year City Employee  Utility Billing Clerk  Printed & folded 4100 water bills per month  2.5 hours per week in copy room  One Month FMLA for Multiple Chemical Sensitivity Facts: Sanders

4. Multiple Chemical Sensitivity  Exposure to a chemical event  Many different symptoms  Rejected as an organic disease by American Medical Association (condition not caused by infection)

5. Facts: Sanders  Sanders' Jobs After Termination  Assisted Living Facility  Supermarket Checker  District Attorney's Office

6. Facts: City of Newport  10,000 people  Oregon Coast  Took steps to reduce chemical exposure  Moved printer  Copy room door open  Print Thursday, fold Friday to allow off gassing

7. Facts: City of Newport  Would not reinstate Sanders because it could not provide a safe workplace.  Unknown cause of M.C.S.  Contact with low quality paper unavoidable.  No reinstatement = termination

8. Facts: Dr. Morgan  Did not examine Sanders  Diagnosed M.C.S. based on Sanders' statements  Blamed low quality paper & poor ventilation  Cure: avoid low grade paper

9. FMLA Rights  Right to use a certain amount of leave for protected reasons.  Birth, adoption, sickness, other  29 U.S.C. § 2612  Right to return to job, or an equivalent job, after the using the protected leave.  29 U.S.C. § 2614.

10. FMLA Rights Two ways to protect Rights: 1)Discrimination or Retaliation Claim 29 U.S.C. § 2615(a)(1). 2)Interference or Entitlement Claim 29 U.S.C. § 2615(a)(2).

11. Discrimination Claim (Not this Case) In general, an employer cannot discriminate against an employee for instituting or participating in FMLA proceedings.

12. Interference Claim  Termination for taking FMLA leave is an interference claim.  Failure to reinstate is equivalent to termination.

13. Interference Claim Employee prima facie case: 1.Eligible for FMLA Protection 2.Employer covered by FMLA 3.Entitled to take FMLA leave 4.Gave Notice of FMLA leave 5.Employee denied FMLA benefits

14. Interference Claim  Employer intent does not matter  But, if employee would have been terminated anyway, no interference claim.  29 C.F.R. § 825.216 (2009) (Limits on right to reinstatement).  No greater rights after FMLA than before

15. Burden of Proof ?

16. Jury Instruction Plaintiff also claims that she was not reinstated to her job after she took family medical leave. In order to prove that claim, plaintiff must prove both the following: (1) that she requested family medical leave; and (2) that she was denied reinstatement or discharged from employment without reasonable cause after she took family medical leave.

17. Jury Instruction  City's brief acknowledged that the jury instruction was erroneous  City argued that Sanders did not properly object to the jury instruction  Ninth Circuit dismissed this argument in a footnote

18. Ninth Circuit  Burden on employer to show legitimate reason not to reinstate  City did not establish that Sanders did not have a right reinstatement  29 C.F.R. § 825.214 (2009) (Employee right to reinstatement).  Reasonable cause is not part of the analysis

19. Reasonableness is not part of a prima facie right-to-reinstatement claim. A prima facie claim only requires an employee to prove benefits were denied.

20. End Sanders v. City of Newport, __F.3d __, 2011 WL 905998 (9th Cir. 2011). Trial decision: Sanders v. City of Newport, 602 F. Supp. 2d 1195 (D. Or. 2009).