Third-Party Retaliation (Part 3)

Earlier today, we released a series of posts on third-party retaliation under Title VII, as interpreted by the Supreme Court in Thompson v. North American Stainless, LP, __ U.S. __, 131 S. Ct. 863 (2011).

The next question is whether Thompson applies to anti-retaliation provisions in employment laws other than Title VII.

ADEA. In Dembin v. LVI Services, Inc., 822 F. Supp. 2d 436, 438-39 (S.D.N.Y. 2011) and Hovsepyan v. Blaya, 770 F. Supp. 2d 259, 269 (D.D.C. 2011), the district courts held that Thompson applies to retaliation claims brought under the Age Discrimination in Employment Act. This is not surprising, because the ADEA’s anti-retaliation provision is related to the anti-retaliation provision of Title VII, and cases interpreting the latter provision are frequently relied upon in interpreting the former. See Passer v. American Chemical Society, 935 F.2d 322, 330 (D.C. Cir. 1991) (citations omitted); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1441 (9th Cir. 1990) (“Those circuits that have considered ADEA retaliation claims have generally adopted the analysis used in Title VII cases without comment.”) (citing Powell v. Rockwell Int’l Corp., 788 F.2d 279, 284-85 (5th Cir. 1986)) (other citations omitted).

FMLA. District courts have differed on whether Thompson applies to cases arising under the FMLA. On June 19, 2012, the court in Lopez v. Four Dee, Inc., No. 11–CV–1099, 2012 WL 2339289, at *2 (E.D.N.Y. June 19, 2012), extended Thompson to permit a claim of third-party retaliation under the FMLA. In contrast, the very next day, in Gilbert v. St. Rita’s Professional Services, LLC, 2012 WL 2344583, at *6 (N.D. Ohio June 20, 2012), the court refused to extend Thompson to the FMLA, concluding, “[g]iven the difference in statutory text between the FMLA and Title VII, as well as Thompson‘s specific focus on language excluded from the FMLA, this Court finds the FMLA does not allow for causes of action under a third-party theory.” The court did not address the contrary holding in Lopez, presumably because it was understandably unaware of the day-old decision. On December 11, 2012, in Augustus v. AHRC Nassau, NO. 11 CV 15 MKB, 2012 WL 6138484, *9 (E.D.N.Y. Dec. 11, 2012), the court cited Lopez with approval, and permitted a third-party FMLA retaliation claim to proceed, over the employer’s motion for summary judgment.

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