The FMLA’s anti-interference provision bars conduct that “`tends to chill’ an employee’s willingness to exercise” rights under the statute. See, Brown v. City of Tucson, 336 F.3d 1181 (9th Cir. 2003) (Holding that close temporal proximity between the protected activity and disciplinary investigation of complaining employee did not necessarily imply a retaliatory motive. Recognizing the legitimacy of taking adverse employment action based on absences not protected by the FMLA.) When an employee provided two doctor’s notices regarding her absences placed the employer on notice that the leave might be covered by the FMLA. See, Bachelder v. America West Airlines, 259 F.3d 1112 (9th Cir. 2001) (Holding that § 825.220(c)”is a reasonable interpretation of the statute’s prohibition on ‘interference with’ and ‘restraint of’ employee’s rights under the FMLA” and that “[t]he Labor Department’s conclusion that employer use of ‘the taking of FMLA leave as a negative factor in employment actions’ … violates … the Act is … a reasonable one.”).
An employee who claims termination of employment because of taking FMLA leave, in order to prevail in court, must “prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her.” Bachelder, 259 F.3d at 1125 (holding that the McDonnell Douglas burden-shifting framework is inapplicable to claims under the FMLA’s interference provision). It does not matter whether her employer “had additional reasons for the discharge . . . [because] the regulations [ 29 C.F.R. 825.220(c)] clearly prohibit the use of FMLA-protected leave as a negative factor at all.” Id. at 1131.
