The Supreme Court has refused to take up the appeal of a former United Airlines employee who claims that she was unlawfully dismissed for taking time off under the Family and Medical Leave Act (FMLA).
The court denied the petition for review in Parker v. United Airlines, court file 22-817, in an unsigned order on April 3. No justices dissented from the order and no reasons were provided for dismissing the petition.
The ruling leaves in place a September 2022 decision by the U.S. Court of Appeals for the 10th Circuit, which upheld a federal district court decision in favor of the airline.
Later that year when Parker returned to work, she was assigned a new supervisor. The overseer suspected that she had been putting customers on hold for inordinate amounts of time while talking to co-workers about personal matters. She listened in on Parker’s calls.
Six months later, the supervisor recommended that Parker be fired. A manager was brought in to carry out her own investigation.
“Parker, her union representative, her supervisor, and the manager met so all parties could present arguments and evidence. Afterwards, the manager decided to fire Parker,” a Bloomberg Law summary reads.
Parker appealed, and a senior manager arranged another conference call. The union representative admitted that there was call avoidance, and the senior manager decided United hadn’t done anything wrong in terminating Parker’s employment.
Parker argued that the supervisor had a bias against the FMLA. The supervisor oversaw 35 agents, some of whom had worse performance records “including documented cases of abhorrent customer service/call mishandling or call avoidance,” but out of all those agents, Parker was the only one targeted for immediate termination, according to the petition.
But in June 2021, the district court in Utah ruled for the airline, finding that Parker’s claim of FMLA-related discrimination or retaliation couldn’t succeed because “there is no evidence to show that United’s legitimate, non-discriminatory, and non-retaliatory reasons for the termination are pretextual.”
The court rejected Parker’s argument that the cat’s paw theory of liability applied. The cat’s paw theory comes from an old fable in which a monkey talks a cat into pulling chestnuts out of a fire, so the cat gets burned while the monkey gets to eat the chestnuts. In the context of employment law, the employer is legally at fault if the bias of another official finds its way into the final firing decision, even if the official doing the firing isn’t biased.
The court found that Parker couldn’t show cat’s paw liability because there was no evidence that the senior manager “acted as a mere cat’s paw” for the supervisor, and the senior manager “did in fact hear and consider presentations from both parties.” Parker couldn’t move forward with the cat’s paw claim because the court found that the senior manager didn’t simply rubber-stamp the supervisor’s recommendation and independently verified some of the facts alleged by the supervisor.
The 10th Circuit held that the airline’s win in district court was justified because the decision to terminate Parker’s employment was made by “an independent decision maker.”
The causal connection between leave discrimination and retaliation under the FMLA is broken when “an independent decision maker conducts her own investigation and decides to fire the employee,” according to 10th Circuit Judge Robert Bacharach, an Obama appointee.
The attorney for United Airlines, Jessica Whelan of Holland and Hart in Las Vegas, refused to comment.
The Epoch Times reached out to Parker’s attorney, Peter Michael Katsaros of Hahn Loeser and Parks in Chicago, but didn’t receive a reply as of press time.
