          United States Court of Appeals
                     For the First Circuit

No. 16-1351

                          ROBERT CHASE,

                      Plaintiff, Appellant,

                               v.

 UNITED STATES POSTAL SERVICE; MICHAEL KING; AND UNITED STATES,
           AS SOLE DEFENDANT ON COUNTS III, IV, AND V,

                     Defendants, Appellees.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS
         [Hon. Douglas P. Woodlock, U.S. District Judge]


                             Before

                    Barron, Selya, and Stahl,
                         Circuit Judges.


     Lori A. Jodoin, with whom Rodgers, Powers & Schwartz LLP,
were on brief, for appellant.
     Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellees.
     David Conforto and Conforto Law Group, on brief for
Massachusetts Employment Lawyers Association as amicus curiae.
     John Pagliaro and Martin J. Newhouse on brief for New England
Legal Foundation and Associated Industries of Massachusetts as
amicus curiae.


                        December 14, 2016
            STAHL,    Circuit   Judge.   The    Family   Medical     Leave    Act

(FMLA) allows an employee up to twelve weeks of leave, in a twelve-

month period, for a serious medical condition.                 29 U.S.C. §

2612(a)(1)(D).       Under the FMLA, an employee's absence from work

due to a personal health concern, or that of a spouse, child, or

parent, is protected from interference and retaliation by his

employer.   29 U.S.C. § 2615(a).

            Appellant Robert Chase alleged that his employer, the

United States Postal Service (USPS), and supervisor Michael King,

terminated him from the Brookline, Massachusetts Post Office in

retaliation for taking FMLA leave.             He brought interference and

retaliation claims under 29 U.S.C. § 2615, arguing that King and

USPS violated the FMLA by firing him while he was out of work on

protected leave.

            Following a bench trial, the district court held that

King and the USPS did not violate the FMLA on the ground that King,

as the USPS decisionmaker, did not have the requisite knowledge of

the   designation     of   Chase's   medical    leave    necessary    to     hold

defendants liable under the FMLA.            This appeal followed, and we

AFFIRM.

                           I. Facts & Background

            Chase worked as a letter carrier at the USPS Brookline

Post Office for nearly fourteen years.            During this time, Chase

never received a negative performance review nor was he subject to

                                     - 2 -
any disciplinary action.        King, manager of the Brookline Post

Office,   supervised   Chase   from   2005   until   his    termination   on

September 30, 2011.

           A. Accident and Leave of Absence

           The accident leading to Chase's leave and allegedly

contributing to his termination occurred on July 21, 2010, when an

elderly woman fell asleep at the wheel of her car and struck

Chase's vehicle while he was parked during his lunch break.          Chase

was taken to the hospital and diagnosed with a serious shoulder

injury including damage to his rotator cuff.         King personally went

to the scene of the accident to observe the severity of the

accident and injury and to prepare a report of the incident.

King's report noted Chase's shoulder injury.

           Following    his    injury,    Chase   applied    for   workers'

compensation, despite being discouraged from doing so by King.

This request was approved.      Chase also applied for and was granted

FMLA leave.    USPS mailed a Designation/FMLA Approval Notice to

Chase and to King which stated that "[Chase's] FMLA leave request

is approved.   All leave taken for this reason will be designated

as FMLA leave."1       Pursuant to USPS policy, Chase opted for a


     1 King claims that he never received the FMLA notice and that
he thought perhaps an office worker had filed the notice without
first showing it to him. He testified that he believed Chase's
leave status was either "injured on duty" (IOD) or "out on workers'
compensation" (OWCP), and that he assumed that Chase was not on
FMLA leave because that leave is often unpaid and he believed that


                                  - 3 -
continuation of pay and was fully compensated for the first 45

days of his leave, after which he received workers’ compensation

benefits amounting to two-thirds of his salary, tax-free, plus

health insurance.    Chase's concurrent FMLA leave lasted from July

21, 2010 to October 12, 2010, but he remained on medical leave

until September 30, 2011, when he was terminated.

          B. Workplace Tensions Between King and Chase

          On several occasions, both before and during the course

of these events, King publicly mocked Chase and accused him of

faking injuries.    In September of 2006, Chase had injured his knee

while on the job and subsequently missed a week of work.    At that

time, in apparent response, King made an announcement over the

Brookline Post Office loudspeaker, "[w]ill Bob Chase, the injury

fraud specialist, please report to the office." In August of 2010,

a month after Chase's motor vehicle accident at issue in this case,

King posted a job opening on the office bulletin board advertising

a position for an "injury compensation specialist."       King then

made an announcement mocking Chase:     "[T]here’s a job posted on

the bulletin board for an[] injury compensation specialist since

you’re the biggest fraud when it comes to injuries."       Brookline

Post Office employee Maria Constantino testified that she heard

King say that Chase was faking the 2010 shoulder injury he had


employees only used FMLA leave once they had exhausted all forms
of paid leave, which to his knowledge Chase had not.


                                - 4 -
sustained in the car accident and heard King announce on multiple

occasions, "Can I have the carrier on Route 92 [Chase] who is

faking an injury come to the office, please?"

             C. USPS Disciplinary Action

             On September 18, 2010, while on FMLA leave, Chase was

arrested with his brother and charged with possession of cocaine

with intent to distribute and conspiracy to violate drug laws, in

violation of Mass. Gen. Laws ch. 94C, §§ 32A(a) and 40.               The

arrests were publicized in a local newspaper, the Brookline Tab.

After seeing the article and arrest reports, King notified his

then-manager, Lori Bullen, about the arrests, saying, "[i]t would

be nice if we can proceed with something." Bullen forwarded King's

email to Labor Relations indicating that Chase was "out OWCP [on

workers' compensation] to boot."

             Following the arrest Chase and King remained in fairly

regular communication.     During one of these conversations, Chase

notified King that the criminal charges would soon be dismissed.

King then turned the conversation to Chase's medical leave and

began   to   threaten   Chase   with   a   workers'   compensation   fraud

investigation if he did not return to work.            Several Brookline

Postal workers including Joseph DeMambro, the Chief Union Steward,

and another employee, Wanda Jackson, testified that King believed

that Chase was faking his current shoulder injury and that King

was often suspicious of employees who took medical leave.


                                  - 5 -
            On January 18, 2011, King and Chase spoke over the

telephone for a pre-disciplinary interview, during which they

discussed how Chase's arrest and charges might affect his job.

Chase and King ceased communicating after Chase phoned King asking

for help to resolve an issue related to his medical leave and King

responded, "go [expletive] yourself."

            On January 27, 2011, King's manager approved the request

that Chase be issued a Notice of Removal.          On the following day,

Labor Relations prepared for King a Notice for "Failure to Perform

Duties in a Satisfactory Manner."           King signed that Notice on

February 1, 2011, and issued it to Chase.               Chase was still on

medical   leave   when   he   received   the   Notice   of   Removal.      The

dismissal   notice   cited    Chase's    arrest   and   refusal   to    answer

questions during his pre-disciplinary interview.             In response to

the notice, Chase filed a grievance through his union, but USPS

denied the grievance and his case proceeded to arbitration pursuant

to the union contract.         Before the final arbitration hearing,

Chase's criminal case reached a favorable resolution when, on

August 31, 2011, the conspiracy charge was dismissed outright and

the charge of possession with intent to distribute was reduced to

a charge of simple possession, to be dismissed upon completion of

one year of pre-trial probation and random drug testing.                  The

grievance process ultimately reached its conclusion on September

30, 2011, when the arbitrator ruled against Chase.           The arbitrator


                                   - 6 -
issued a final written decision, affirming Chase's removal on the

grounds that USPS had shown through clear and convincing evidence

that Chase had possessed a Class B illegal drug, which violated

USPS policy.    He was officially terminated that same day.

             D. The FMLA

             The FMLA provides an employee suffering from a serious

injury or medical condition with up to twelve weeks of protected

leave, in a twelve-month period.     29 U.S.C. § 2612(a)(1)(D).   An

employee is eligible for FMLA leave for each of the following

reasons:

     (A) Because of the birth of a son or daughter of
         the employee and in order to care for such son or
         daughter.
     (B) Because of the placement of a son or daughter with
         the employee for adoption or foster care.
     (C) In order to care for the spouse, or a son, daughter,
         or parent, of the employee, if such spouse, son,
         daughter, or parent has a serious health condition.
     (D) Because of a serious health condition that makes the
         employee unable to perform the functions of the
         position of such employee.
     (E) Because of any qualifying exigency . . . arising out
         of the fact that the spouse, or a son, daughter, or
         parent of the employee is on covered active duty .
         . . has been notified of an impending call or order
         to covered active duty) in the Armed Forces.

29 U.S.C. § 2612(a)(1). In keeping with its comprehensive remedial

purpose "to help working men and women balance the conflicting

demands of work and personal life," the FMLA should be broadly

construed.    See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 164

(1st Cir. 1998) (quoting Price v. City of Ft. Wayne, 117 F.3d 1022,



                                - 7 -
1024 (7th Cir. 1997)); see also Tcherepnin v. Knight, 389 U.S.

332, 336 (1967) (noting that "remedial legislation should be

construed broadly to effectuate its purposes.")

           FMLA leave may take many forms, including an unpaid leave

of absence, a paid vacation, personal leave, family leave, medical

leave, or sick leave.    See 29 U.S.C. § 2612(c)-(d).    FMLA leave

may also run concurrently with other types of paid leave such as

workers' compensation.   29 C.F.R. § 825.207(d)-(e).    When making

a request for leave, "the employee need not expressly assert rights

under the FMLA or even mention the FMLA" for FMLA protection to

attach.   29 C.F.R. § 825.302(c).

           An employer may not interfere with, restrain, or deny

the exercise of or the attempt to exercise any right provided under

the FMLA, nor may an employer discharge or discriminate against an

individual who takes FMLA leave.    29 U.S.C. § 2615(a); see also 29

C.F.R. § 825.220(c); Hodgens, 144 F.3d at 160 n.4.     Additionally,

an employer may not include FMLA leave "as a negative factor in

employment actions ... ."   29 C.F.R. § 825.220(c).   While the FMLA

itself does not explicitly contain a prohibition on retaliation

for taking leave, courts have interpreted the Act to have such an

implied prohibition. See Pagán-Colón v. Walgreens of San Patricio,

Inc., 697 F.3d 1, 8 (1st Cir. 2012).




                               - 8 -
             E. Procedural History

             On June 29, 2012, Chase filed his Complaint in the United

States District Court for the District of Massachusetts.               He

alleged FMLA interference (Count I) and FMLA retaliation (Count

II) in violation of 29 U.S.C. § 2615.         In addition, Chase sued

King   for   intentional    interference   with   advantageous   business

relations     (Count   III),   intentional   infliction   of     emotional

distress (Count IV), and defamation (Count V).        The United States

substituted itself for King for Counts III-V under the Westfall

Act, 28 U.S.C. § 2679, which allows the United States to step in

as defendant for one of its employees where the employee is sued

for damages as a result of an alleged tort committed within the

scope of his or her employment.

             On August 30, 2012, USPS and King moved to dismiss all

claims.   Chase opposed these motions and the court took them under

advisement.     At the close of discovery the defendants moved for

summary judgment in their favor on all claims. Chase again opposed

defendants' motions.       The district court heard oral arguments on

October 16, 2013.      On November 4, 2013, the court granted summary

judgement on all claims with the exception of the FMLA retaliation

claim (Count II).

             Count II proceeded to a bench trial on April 7-10, 2014.

On March 1, 2016, the district court entered judgement for USPS

and King, reasoning that the defendants could not have acted with


                                  - 9 -
retaliatory animus because King lacked the requisite knowledge

that Chase's leave was protected under the FMLA.      Chase filed this

appeal on March 31, 2016.

                            II. Discussion

           We review a district court's factual findings for clear

error and its legal holdings de novo.        Industria y Distribuction

de Alimentos v. Trailer Bridge, 797 F.3d 141, 144 (1st Cir. 2015).

We find no clear error in the district court's finding that King

reasonably believed Chase was not out on FMLA leave, and we agree

with the district court that King's knowledge was insufficient to

support an FMLA retaliation claim.

           To make out a claim for retaliation under the FMLA, a

plaintiff must show that the employer "took the adverse action

because of a prohibited reason [and not for] a legitimate non-

discriminatory reason."     Hodgens, 144 F.3d at 160.     In order to

make out a prima facie case of retaliation, the employee "must

show that (1) he availed himself of a protected right under the

FMLA; (2) he was adversely affected by an employment decision; (3)

there is a causal connection between the employee's protected

activity and the employer's adverse employment action."        Id. at

161 (citing Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir.

1997)).   Because the employer's intent in FMLA retaliation claims

is highly relevant, an employer cannot be found to have retaliated

against an employee for invoking his rights under the FMLA or


                                - 10 -
taking FMLA leave unless the decisionmaker knew or should have

known that the employee had invoked those rights.         See Ameen v.

Amphenol Printed Circuits, Inc., 777 F.3d 63, 70 (1st Cir. 2015).

           This case turns on whether there was a causal connection

between the employee's protected activity (taking FMLA leave) and

the   employer's   adverse   employment   action   (termination).      On

appeal, Chase argues that the district court erred in determining

that King did not believe that Chase was out on FMLA leave, and,

therefore, cannot be held liable for retaliation under the FMLA.

Chase argues King knew he was injured and knew the FMLA covered

the first twelve weeks of his medical leave.            Further, Chase

asserts that even if King did not have direct knowledge of his

FMLA leave, USPS's institutional knowledge binds the organization.

We address these arguments in turn.

           A. Retaliatory Animus

           Chase contends that King knew he was on FMLA leave as a

result of his on-the-job motor vehicle accident and argues the

district court committed clear error in holding otherwise.          It is

undisputed that King was aware of Chase's injury, that he visited

the scene of the accident and made a report, and that he was aware

that Chase was out of work on medical leave; however, there is no

evidence that King knew or should have known that Chase was out on

protected FMLA-designated leave.    Consequently, we find that Chase

does not have a valid claim for FMLA retaliation because he failed


                                - 11 -
to prove that King acted with retaliatory animus towards his FMLA

leave.   See Ameen, 777 F.3d at 70 (holding that to succeed on an

FMLA retaliation claim, a plaintiff "must show that the retaliator

knew about [his] protected activity——after all, one cannot have

been motivated to retaliate by something he was unaware of."

(quoting Medina–Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st Cir.

2013) (alteration in original))).

          It is true beyond a doubt that King knew that Chase had

suffered a serious injury, one that was both covered by workers'

compensation and FMLA-eligible.     Indeed, the injury ultimately

resulted in FMLA leave being granted.   However, the case presents

an unusual situation in which King also reasonably believed that

Chase was out on paid workers' compensation medical leave, rather

than FMLA-designated leave.    For this belief, King relied on a

computer program that listed Chase as either "injured on duty" or

"out on workers' compensation."   In addition to the USPS internal

computer system, which made no mention of Chase having been granted

FMLA leave, King also testified that he neither received nor saw

the FMLA notice that was allegedly mailed to both Chase and King.

          King also reasonably concluded, as the district court

found, that "even though seriously injured, it would not make sense

[for] Chase to take FMLA leave until——at the earliest——his paid

leave expired," Chase v. U.S. Postal Serv., 149 F. Supp. 3d 195,

212 (D. Mass. 2016), because using FMLA leave concurrently with


                              - 12 -
the    more     advantageous       coverage        available       under       workers'

compensation would be redundant.               In other words, given that King

"reasonably      believed       that    the     FMLA's     protections      had       been

declined," id., he cannot be held liable in this case for a failure

to inquire further into Chase's leave status,                    see, e.g., Dotson

v.    Pfizer,    Inc.,    558    F.3d    284,    295     (4th    Cir.    2009)    (FMLA

retaliation can be found where the employer "was on notice that

[the employee] was inquiring about his FMLA options" and "did not

fulfill its duty to inquire about whether his leave should be

classified as FMLA-protected"); 29 C.F.R. § 825.302(c) ("In all

cases, the employer should inquire further of the employee if it

is necessary to have more information about whether FMLA leave is

being sought by the employee.") (emphasis added).

              Moreover,    even    King's       workplace       comments       over    the

loudspeaker and to various employees, inappropriate as they may

have been in polite company, or for that matter in employee

relations,      support   the     district      court's    conclusion      that       King

actually believed that Chase was receiving workers' compensation

and had not taken FMLA leave.             As the district court sustainably

found, "it was the workers' compensation leave——not the concurrent

FMLA    leave——which      angered       King     and     contributed      to    Chase's

termination."       Chase, 149 F. Supp. 3d at 213.                      Liability for

retaliation under the FMLA is restricted to actions taken out of

animus towards FMLA-protected leave.               See 29 C.F.R. § 825.220(c)


                                        - 13 -
(an employer may not consider an employee's use of FMLA leave "as

a negative factor in employment actions").2   Chase's arguments, to

the extent that they establish King's animus towards Chase for

taking workers' compensation leave, are insufficient to show that

King acted with any retaliatory animus in violation of the FMLA

given that King had no actual or constructive knowledge that the

FMLA had been invoked.

          To be clear, actual knowledge on the part of an employer

that a particular employee has specifically invoked the FMLA's

statutory protections, as opposed to having taken leave for an

injury or other condition which happens to be FMLA-protected, is


     2 We note that there is some tension in the case law as to
the appropriate causation standard to apply in FMLA retaliation
cases. The currently operative Department of Labor Regulations
(DOL), as indicated above, prohibit an employer from using an
employee's decision to take FMLA leave as a "negative factor" in
employment actions. 29 C.F.R. § 825.220(c). We have previously
held that DOL regulations interpreting the FMLA are entitled to
deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837 (1984). See, e.g., Hodgens, 144 F.3d at 160
n.4; Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d
325, 331 (1st Cir. 2005).    However, the Supreme Court has held
that Title VII retaliation claims "must be proved according to
traditional principles of but-for causation . . . [which] requires
proof that the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of the employer."
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533
(2013). The district court concluded that Nassar had not changed
the landscape for FMLA claims, and that the "negative factor" test
promulgated by DOL continued to apply. Given that Chase is unable
to prevail under even the more lenient "negative factor" test, we
save for another day the question of Nassar's impact on FMLA
jurisprudence with respect to the required causation standard, and
take no position on the district court's decision to grant the DOL
regulations continued Chevron deference.


                              - 14 -
not the sine qua non of FMLA retaliation liability.   After all, as

the Department of Labor Regulations instruct, "the employee need

not expressly assert rights under the FMLA or even mention the

FMLA" to provide his employer with notice, 29 C.F.R. § 825.302(c),

and as we noted in our first encounter with FMLA retaliation, the

relevant inquiry in such cases is "whether there [was] sufficient

evidence . . . for a jury to conclude that [the plaintiff's]

discharge was motivated by retaliation for his having availed

himself of a right protected by the FMLA, namely, the right to

take medically necessary leave time."   Hodgens, 144 F.3d at 169.

          However, in the case before us, not only was King

oblivious to the statutory character of the leave in question, but

he had a reasonable and well-founded belief that Chase had not

availed himself of FMLA protection, because it would not have made

sense for him to do so while he was already receiving a more

beneficial package under the workers' compensation regime.     The

information and records to which King was privy appeared to

indicate only that Chase was receiving "paid leave [in the form of

workers' compensation], under terms more favorable than the FMLA

provides," Chase, 149 F. Supp. 3d at 212.   Although this case is

unusual in that the injury in question qualified Chase for FMLA

leave, we do not believe that the district court clearly erred in

concluding that the particular chronology and facts of this case




                             - 15 -
rendered King's belief that Chase had declined to invoke FMLA

protection a reasonable one.

             B. General Corporate Knowledge

             Finally,     Chase     argues    that     even    if    King   reasonably

believed that Chase was not out on FMLA leave, USPS had "general

corporate knowledge" of the FMLA designation, which binds its

conduct as a matter of law.           Alston v. N.Y.C. Transit Auth., 14 F.

Supp. 2d 308, 311 (S.D.N.Y. 1998).             Chase's argument is inherently

flawed because precedent does not support his basic proposition

that   corporate        or    managerial        knowledge          can     override   a

decisionmaker's lack of knowledge in FMLA retaliation cases, for

reasons we explain below.

             In   Ameen,     this    court    declined        to    find    retaliatory

conduct because the plaintiff could not show that the decisionmaker

knew that the plaintiff was engaging in protected activity, even

though others in the company hierarchy did. 777 F.3d at 70 (citing

Medina–Rivera, 713 F.3d at 139); see also Pomales v. Celulares

Telefónica, Inc., 447 F.3d 79, 85 (1st Cir. 2006) ("[T]here must

be proof that the decisionmaker knew of the plaintiff's protected

conduct when he or she decided to take the adverse employment

action.").        Other    circuits    echo     this    decisionmaker        knowledge

requirement.      See Henderson v. Chrysler Grp., LLC, 610 F. App'x

488, 496 (6th Cir. 2015); Brungart v. Bellsouth Telecomms., Inc.,

231 F.3d 791, 800 (11th Cir. 2000); Cohen v. Fred Meyer, Inc., 686


                                       - 16 -
F.2d 793, 797 n.5 (9th Cir. 1982).3           Based on these cases, there

is no precedent to support Chase's proposition that USPS's general

knowledge can substitute for King's lack of knowledge for purposes

of this FMLA retaliation analysis.

                              III. Conclusion

           While King clearly demonstrated animus towards Chase for

his absence, that animus was directed exclusively towards Chase's

workers' compensation leave, not his FMLA leave.               Because King

reasonably believed that Chase was not out on FMLA leave, we AFFIRM

the   district   court's     finding   that   King   lacked   the   requisite

knowledge necessary to hold him liable for retaliation in violation

of the FMLA.     Affirmed.




      3To the extent that these cases involve retaliatory actions
based on statutes other than the FMLA, they are still informative
because the discrimination analysis under each is highly
analogous, if not identical, to that under the FMLA.


                                   - 17 -
