Based on Bachelder and the plain language of 29 C.F.R. § 825.220(c), it is
apparent that a plaintiff claiming retaliation for the exercise of FMLA/WFLA rights need
only prove: (1) he or she was absent from work for reasons covered by the
FMLA/WFLA, (2) he or she suffered an adverse employment decision, and (3) the
covered leave was a negative factor in the employer’s adverse employment decision. 4
Because establishing a regulatory retaliation claim does not require specific proof
of discriminatory intent, there is no need to require the employer to proffer a
4
Because Bachelder found 29 C.F.R. § 825.220(c) was adopted pursuant to
29 U.S.C. § 2615(a)(1) (that prohibits interference with the exercise of FMLA rights),
it labeled a regulatory claim an “interference” claim. 259 F.3d at 1124-25. However,
because the regulation itself employs the words “discriminating” and “retaliating,” a
regulatory claim is more appropriately labeled a discrimination or retaliation claim.
Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 n.9 (3d Cir. 2004).
13
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No. 35262-5-III
Espindola v. Apple King
nondiscriminatory basis for its employment decision or for the employee to rebut
the employer’s proffer.
Application of the applicable standard to Ms. Espindola’s claim
Here, it is undisputed Ms. Espindola was fired from Apple King because of
absences from work. Thus, the viability of Ms. Espindola’s retaliation claim rests on the
first factor of the retaliation test—i.e., whether at least some of Ms. Espindola’s absences
were protected by the FMLA/WFLA. Proof of this factor depends on whether Ms.
Espindola can establish that she provided Apple King with adequate notice of a request