of discrimination; then a production burden shifts to the employer to provide a legitimate,
nondiscriminatory reason for its adverse employment action and, if this burden is met, the
employee bears the ultimate burden of demonstrating that the employer’s articulated
reason for its action was a mere pretext for discrimination or retaliation. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Apple King contends that the McDonnell Douglas analysis is inapplicable. According to
Apple King, we should follow the lead of the Ninth Circuit Court of Appeals and find the
McDonnell Douglas burden-shifting scheme inapplicable to Ms. Espindola’s claim. On
this legal point, we agree with Apple King. However, as shall be discussed, the Ninth
Circuit’s test actually favors Ms. Espindola.
In Bachelder v. America West Airlines, the Ninth Circuit held that the McDonnell
Douglas burden-shifting analysis does not apply to retaliation claims under 29 C.F.R.
§ 825.220(c). Bachelder v. Am. W. Airlines, 259 F.3d 1112, 1125 (9th Cir. 2001).
12
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No. 35262-5-III
Espindola v. Apple King
Because the United States Department of Labor’s regulation prohibits the use of FMLA-
protected leave as a “negative factor” in an employment decision, the Ninth Circuit
recognized that an employee “need only prove by a preponderance of the evidence that
her taking of FMLA-protected leave constituted a negative factor in the decision to
terminate her. She can prove this claim, as one might any ordinary statutory claim, by
using either direct or circumstantial evidence, or both. . . . No scheme shifting the burden
of production back and forth is required.” Id. at 1125.