Sanders v. City of Newport
Tom Jantunen
April 6, 2011
Sanders v. City of Newport
 Procedural History
 Facts
 Family Medical Leave Act
 Opinion
Facts: Sanders
 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
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)
Facts: Sanders
 Sanders' Jobs After Termination
 Assisted Living Facility
 Supermarket Checker
 District Attorney's Office
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
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
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
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.
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).
Discrimination Claim (Not this Case)
In general, an employer cannot
discriminate against an employee for
instituting or participating in FMLA
proceedings.
Interference Claim


Termination for taking FMLA leave is an
interference claim.
Failure to reinstate is equivalent to
termination.
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
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
Burden of Proof ?
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.
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
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
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.
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).