Second Circuit Clarifies FMLA Discouragement, Notice, and Retaliation Standards in Haran v. Orange Business Services, Inc.

Second Circuit Clarifies FMLA Discouragement, Notice, and Retaliation Standards in Haran v. Orange Business Services, Inc.

I. Introduction

The United States Court of Appeals for the Second Circuit’s decision in Haran v. Orange Business Services, Inc., No. 24‑2312 (2d Cir. Nov. 25, 2025), is a significant precedential opinion refining how Family and Medical Leave Act (FMLA) interference and retaliation claims are evaluated at the summary judgment stage.

The decision addresses three core questions:

  • When does increased scrutiny or criticism of an employee’s work amount to “discouragement” sufficient to support an FMLA interference claim?
  • What must an employee show to recover for an employer’s failure to give the FMLA notices required by regulation?
  • How does a court evaluate pretext in an FMLA retaliation claim where the employer asserts performance-based reasons for termination?

Additionally, the court affirms the district court’s decision to decline supplemental jurisdiction over a related claim under the New York City Human Rights Law (NYCHRL), leaving that claim to be pursued, if at all, in state court.

The Acting Secretary of Labor appeared as amicus curiae in support of the plaintiff, highlighting the broader policy stakes of the case. Nevertheless, the Second Circuit’s opinion is notably cautious in expanding FMLA protections and emphasizes objective evidence, actual prejudice, and robust deference to documented performance-based employment decisions.

II. Background of the Case

A. Parties and Positions

  • Plaintiff–Appellant: Patricia Haran, a Senior Account Manager employed by Orange Business Services, Inc. (OBS) from 2017 until her termination in February 2021.
  • Defendant–Appellee: Orange Business Services, Inc., an international telecommunications company servicing large multinational clients.

Haran’s role was to manage customer accounts. She initially handled “B‑end” accounts (accounts headquartered outside the United States) and later took on “A‑end” accounts (accounts headquartered in the United States), which included major clients such as Pfizer.

B. Factual Timeline

  1. 2017–2019 – Initial success: Haran joined OBS in 2017 and performed successfully for several years managing B‑end accounts.
  2. January 2020 – Expanded responsibilities: Haran was assigned additional A‑end accounts. Managing these accounts proved more challenging. In her first‑half‑2020 review, her supervisor, Adam Kimmick, noted:
    • Difficulties with the new territory and A‑end accounts.
    • Issues with projected revenue and miscommunications with colleagues and a client.
    • Concerns that she might not fully understand feedback or non‑verbal cues.
    Despite these concerns, he rated her “fully successful,” expressing optimism that her second‑half performance would meet objectives.
  3. October–December 2020 – Daughter’s illness and intermittent leave:
    • In October 2020, Haran’s daughter was diagnosed with a possible femoral tumor requiring surgery.
    • Haran informed Kimmick and requested time off. He told her to take the time she needed to “take care of [her] daughter.”
    • Over the next three months, she intermittently took a total of 7.5 days of paid time off to care for her daughter.
    • Neither Haran nor OBS invoked the FMLA terminology, and the time off was treated as ordinary paid time off (PTO), not designated FMLA leave.
  4. Late 2020 – Heightened scrutiny, Pfizer account issues, and account losses:
    • Haran began experiencing more frequent check‑ins and scrutiny from Kimmick concerning her sales pipeline and account management, especially regarding the Pfizer account, a major A‑end client.
    • OBS sought a new master agreement with Pfizer, but negotiations stalled over contractual terms; ultimately, OBS would not accept Pfizer’s requested terms.
    • A coworker told Haran that if she could not attend upcoming Pfizer calls, the account might be reassigned.
    • By year‑end, Haran met objectives for B‑end accounts and her overall annual revenue quota, but three of her largest A‑end accounts—including Pfizer—decided to stop using OBS’s services.
    • The decision by those accounts to leave OBS was in motion before Haran took them over, and Pfizer’s decision was expressly tied to OBS’s stance on contract terms, not Haran’s leave.
  5. Second‑half‑2020 performance review:
    • Haran received an overall rating of “improvement needed.”
    • Kimmick again highlighted ongoing challenges in her A‑end territory, including:
      • Her strategy not increasing proposed services.
      • Insufficient pipeline “velocity” to meet 2021 growth objectives.
    • According to Haran, he told her she had a “lack of focus.” She interpreted this as referring to her absences. When she challenged him, he responded that he meant a lack of focus on relationship‑building with Pfizer to surmount the legal impasse.
  6. February 2021 – Mother’s health and termination:
    • Haran’s mother developed macular degeneration. On February 12, 2021, Haran took one day of PTO to take her mother to a medical appointment. Again, the FMLA was not mentioned, and the day off was approved and paid.
    • On February 24, 2021, OBS terminated Haran. An HR representative initially stated she was being terminated for failing to meet her 2020 quota, but Kimmick clarified that the true reason was an expectation she would not meet her 2021 quota.
    • In a contemporaneous message to a coworker, Haran wrote that she “should have taken family medical leave off but [she] didn’t want to let the company down.”

C. Litigation History

  • Haran filed suit in the Southern District of New York alleging:
    • FMLA interference; and
    • FMLA retaliation; and
    • Familial status discrimination under the NYCHRL.
  • OBS moved for summary judgment. The district court (Judge Dale E. Ho) granted summary judgment on both FMLA claims and declined supplemental jurisdiction over the NYCHRL claim, dismissing it without prejudice.
  • On appeal, the Second Circuit (Judges Raggi, Lynch, and Park; opinion by Judge Park) affirmed in full.

III. Summary of the Second Circuit’s Opinion

The Second Circuit’s decision resolves three key issues:

  1. FMLA interference (discouragement theory): The court held that increased scrutiny and criticism of Haran’s performance—without any reference to her FMLA‑qualifying leave or her daughter’s illness—did not constitute actionable “discouragement” under the FMLA. Haran’s subjective belief that criticism was tied to her absences was insufficient absent objective evidence linking the criticism to her leave.
  2. FMLA interference (failure to provide notice): Although OBS did not provide fresh, individualized FMLA eligibility and rights notices when Haran began taking time off for her daughter, the court held that any violation of the notice regulations was not actionable because Haran failed to prove prejudice. She took all the time she requested, had prior notice of FMLA rights, and admitted that her decision not to take more formal leave was driven by loyalty to the company, not lack of notice.
  3. FMLA retaliation: Even assuming arguendo that Haran’s paid time off qualified as FMLA leave, the court found no evidence that OBS’s stated performance‑based reasons for her termination were pretextual. Performance concerns predated her leave, temporal proximity alone was insufficient at the pretext stage, and mere disagreement with performance assessments did not create a triable issue.

Finally, the court held that the district court did not abuse its discretion in declining supplemental jurisdiction over the NYCHRL claim after disposing of all federal claims.

IV. Detailed Analysis

A. Standards of Review and Governing FMLA Framework

1. Summary judgment review

The court reviews summary judgment de novo, resolving all ambiguities and drawing all reasonable inferences in favor of the non‑moving party (here, Haran), citing Graziadio v. Culinary Institute of America, 817 F.3d 415, 421 (2d Cir. 2016). Summary judgment is proper where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

2. FMLA rights and claims

Under 29 U.S.C. § 2612(a)(1)(C), eligible employees are entitled to up to 12 workweeks of leave in a 12‑month period to care for a child or parent with a “serious health condition.” The FMLA’s purpose is to allow employees “reasonable leave for medical reasons” and family care. The court cites Woods v. START Treatment & Recovery Centers, Inc., 864 F.3d 158, 165‑66 (2d Cir. 2017), which stresses the FMLA’s broad protective aims.

FMLA claims fall into two principal categories:

  • Interference: The employer prevents or impedes the employee from exercising FMLA rights (29 U.S.C. § 2615(a)(1); Woods, 864 F.3d at 166).
  • Retaliation: The employer takes an adverse employment action because the employee exercised or attempted to exercise FMLA rights (Woods, 864 F.3d at 166).

B. FMLA Interference: Discouragement Theory

1. Legal standard

To establish an FMLA interference claim, a plaintiff must show (per Graziadio, 817 F.3d at 424):

  1. She was an eligible employee under the FMLA;
  2. The defendant was an FMLA‑covered employer;
  3. She was entitled to take leave under the FMLA;
  4. She gave sufficient notice of her intention to take leave; and
  5. She was denied benefits to which she was entitled under the FMLA.

The FMLA regulations make clear that “interference” includes not only outright denial of leave, but also “discouraging an employee from using such leave.” 29 C.F.R. § 825.220(b).

2. Haran’s discouragement argument

Haran did not claim OBS refused her requests for time off; indeed, the opposite was true:

  • She requested 7.5 days off to care for her daughter, and all were granted.
  • Her supervisor, Kimmick, told her to “take the time” she needed.
  • No one at OBS made negative remarks about her time off or invoked the FMLA in a restrictive way.

Instead, Haran claimed that OBS “discouraged” her from taking additional leave by:

  • Increasing scrutiny of her work and deals, especially the Pfizer account.
  • Warning her that Pfizer might be reassigned if she could not attend upcoming calls.
  • Issuing a negative performance review and remarking on a “lack of focus.”

She argued that, given the timing of these criticisms and their intensity, she reasonably inferred they were related to her absences for her daughter and felt pressured to take less time off than she otherwise would have.

3. The Second Circuit’s holding

The court rejected this theory, emphasizing a critical distinction between:

  • Legitimate performance management (even if strict, unpleasant, or unfair in the employee’s view), and
  • FMLA‑related discouragement (where employer conduct is actually tied to or aimed at reducing FMLA leave use).

Citing Hockenjos v. Metropolitan Transportation Authority, 2016 WL 2903269 (S.D.N.Y. May 18, 2016), aff’d, 695 F. App’x 15 (2d Cir. 2017), the court stated:

“Criticizing, even berating an employee’s substantive job performance is not enough to assert a claim for interference under a discouragement theory.”

The court further quoted its own precedent in Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 175 (2d Cir. 2006):

“The FMLA is not a shield to protect employees from legitimate disciplinary action by their employers if their performance is lacking in some manner unrelated to their FMLA leave.”

Key to the court’s analysis is the absence of any objective nexus between OBS’s criticisms and Haran’s leave:

  • None of the documented criticisms or warnings mentioned her leave, her daughter’s illness, or her day off for her mother.
  • The scrutiny focused on her sales pipeline, account strategy, and relationship management, particularly with Pfizer.
  • Concerns about her A‑end performance were first raised as early as July 2020—months before her daughter’s diagnosis and her subsequent intermittent leave.

Haran’s argument therefore rested on her subjective interpretation that the “lack of focus” comment and heightened scrutiny must have been about her absences. The court explicitly held that such a subjective belief is insufficient without corroborating objective evidence.

4. Precedents and contrasts

The court distinguished the non‑binding cases Haran relied on, noting they all involved explicit or at least clearly inferable links between the employee’s leave and the adverse responses:

  • Avila‑Blum v. Casa de Cambio Delgado, Inc., 519 F. Supp. 2d 423 (S.D.N.Y. 2007): the employer allegedly told the plaintiff she would be fired if she took a leave to undergo medical treatment.
  • Ziccarelli v. NYU Hospital Center, 2021 WL 797668 (S.D.N.Y. Feb. 27, 2021): the employer allegedly urged an employee on FMLA leave to return earlier than scheduled.
  • Preddie v. Bartholomew Consolidated School Corp., 799 F.3d 806 (7th Cir. 2015): one reason for non‑renewal was the employee’s absences (mostly FMLA‑qualifying), and the other stated reasons were also “tied logically and practically to those absences.”

By contrast, in Haran:

  • The criticisms were directed at sales performance and account management.
  • OBS explicitly based its termination decision on projected failure to meet the 2021 quota, not on Haran’s past or anticipated leave.
  • No statements suggested that taking, requesting, or contemplating FMLA leave was disfavored or would lead to adverse action.

5. Doctrinal significance

This decision effectively clarifies and tightens the Second Circuit’s understanding of FMLA “discouragement” claims:

  • Objective linkage required: Employees must present evidence tying criticism, heightened scrutiny, or threats of reassignment to their FMLA‑qualifying leave (e.g., direct statements, temporal patterns combined with explicit references to leave, written warnings referencing absences as a problem).
  • Subjective perceptions insufficient: Feeling pressured, guilty, or afraid to use FMLA leave—without supporting facts showing the employer is responsible for creating that perception—does not establish interference.
  • Performance management protected: The FMLA does not immunize employees from performance evaluations or legitimate business decisions merely because they use or consider using FMLA leave, so long as those decisions are genuinely independent of leave usage.

This is the central “new” clarifying rule: performance‑based criticism that does not expressly or objectively relate to FMLA leave cannot, standing alone, support a discouragement‑based interference claim.

C. FMLA Interference: Failure to Provide Required Notices

1. Employer notice obligations under the FMLA

The FMLA and its regulations require both employee and employer to exchange certain notices.

  • Employee notice obligation: Under 29 C.F.R. § 825.302(c), an employee must provide “at least verbal notice sufficient to make the employer aware that the employee needs FMLA‑qualifying leave, and the anticipated timing and duration of the leave.”
  • Employer eligibility and rights notice obligations:
    • Once an employee requests leave or the employer otherwise learns that leave may be for an FMLA‑qualifying reason, the employer must notify the employee of her eligibility to take FMLA leave within five business days. 29 C.F.R. § 825.300(b)(1).
    • The employer must also give written notice “detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations.” 29 C.F.R. § 825.300(c)(1).

Regulation 29 C.F.R. § 825.300(e) states that failure to follow these notice requirements “may constitute an interference with, restraint, or denial of the exercise of an employee's FMLA rights.”

2. The prejudice requirement: Ragsdale and Sarno

The Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), and the Second Circuit’s own precedent in Sarno v. Douglas Elliman‑Gibbons & Ives, Inc., 183 F.3d 155 (2d Cir. 1999), form the foundation of the court’s analysis.

  • In Ragsdale, the Supreme Court held that employees bear the burden of showing “real impairment of their rights and resulting prejudice” from an employer’s failure to comply with FMLA notice requirements.
  • In Sarno, the Second Circuit explained that an employee may not sue for technical notice violations if they did not affect the employee’s leave, benefits, or reinstatement rights. A pure procedural failure, without actual harm, is not actionable interference.

3. Application to Haran’s claim

Haran argued that OBS interfered with her rights by not providing the individualized eligibility and rights notice once OBS learned of her daughter’s serious health condition and her need for intermittent leave.

The Second Circuit assumed that OBS did not fully comply with the regulatory notice rules but focused on whether Haran suffered any prejudice from that omission. The court concluded she did not, based on several key points:

  • She had prior FMLA information: Haran did not contend that she was unaware of the FMLA or that OBS had never provided general notice of FMLA rights when she was hired.
  • She received all leave she requested: OBS approved every day off she asked for, and there was no suggestion that she was denied either PTO or medical/family leave. She did not claim she exhausted her PTO or was forced back to work prematurely.
  • Her own statements undermined a causation theory: In a February 24, 2021 message, Haran wrote that she “should have taken family medical leave off but [she] didn’t want to let the company down” (emphasis added). This indicates that her decision not to take more formal leave stemmed from loyalty to the company, not ignorance of her rights.

Because Haran could not show that the lack of new notice “affected [her] exercise of or attempt to exercise any substantive right conferred by the [FMLA],” Sarno, 183 F.3d at 162, the court held that the notice failure could not support an interference claim.

4. Practical significance

The decision reinforces a critical limitation on FMLA notice‑based interference claims:

  • No damages for harmless violations: Employers are not strictly liable for procedural missteps; plaintiffs must show that notice errors actually changed what happened—e.g., they would have taken more leave, structured their leave differently, protected job reinstatement rights, or avoided discipline had proper notice been given.
  • Employee knowledge matters: Where employees admit awareness of FMLA rights or receive leave without interference, it becomes difficult to prove the necessary prejudice from a failure to re‑issue individualized notices.
  • Employer best practices remain important: Even though the court rejects liability here, employers are still obligated to comply with the regulations. Failing to do so creates litigation risk whenever plaintiffs can plausibly assert they would have structured leave differently and suffered harm as a result.

D. FMLA Retaliation Claim

1. Legal standard: McDonnell Douglas framework

FMLA retaliation claims in the Second Circuit are analyzed under the familiar McDonnell Douglas burden‑shifting framework (Graziadio, 817 F.3d at 429):

  1. Prima facie case: The plaintiff must show:
    • (a) she exercised rights under the FMLA;
    • (b) she was qualified for her position;
    • (c) she suffered an adverse employment action; and
    • (d) the adverse action occurred under circumstances giving rise to an inference of retaliatory intent.
  2. Employer’s legitimate reason: If the prima facie case is made, the employer must articulate a legitimate, non‑discriminatory reason for the adverse action.
  3. Pretext: The burden shifts back to the employee to show that the employer’s stated reason is a pretext for retaliation.

2. Whether Haran “exercised FMLA rights”

The district court disposed of Haran’s retaliation claim on the ground that she did not actually “exercise rights protected under the FMLA,” because she took PTO rather than formally designated FMLA leave. On appeal, the parties disputed this point.

The Second Circuit bypassed the question. Instead of resolving whether using accrued PTO for FMLA‑qualifying reasons is, in itself, exercising FMLA rights, the court assumed arguendo that Haran had engaged in protected activity and focused on the pretext stage.

This analytical move leaves open, but does not resolve, the question of whether and when use of paid leave can count as the exercise of FMLA rights—a potentially significant doctrinal issue. The court simply found that, even under a generous assumption in Haran’s favor, she could not survive summary judgment.

3. OBS’s legitimate non‑retaliatory reason: Performance concerns

OBS asserted that it terminated Haran not because she took leave, but because:

  • Her performance in managing A‑end accounts had been problematic; and
  • She was not expected to meet her 2021 sales quota due to insufficient pipeline and velocity.

The record showed:

  • Documented concerns about her A‑end performance as early as mid‑2020, before her daughter’s diagnosis.
  • Loss of several large A‑end accounts, including Pfizer, during her management tenure—albeit for reasons beyond her sole control.
  • A 2020 year‑end evaluation rating her “improvement needed” and highlighting pipeline concerns.

4. Plaintiff’s pretext arguments and the court’s response

Haran argued:

  • Her poor pipeline metrics were largely driven by factors beyond her control (e.g., OBS’s refusal to accept Pfizer’s contractual demands).
  • She had developed a reasonable plan to grow her sales funnel.
  • The timing of her termination (shortly after her February 12, 2021 leave to care for her mother) and the negative performance feedback “on the heels” of her intermittent leave could support an inference of retaliatory intent.

The court rejected these arguments as insufficient to create a genuine issue of material fact:

  • Mere disagreement with performance assessments is insufficient. Citing Rightnour v. Tiffany & Co., 354 F. Supp. 3d 511, 525 (S.D.N.Y. 2019), and Bentley‑Ammonds v. Northwell Health, Inc., 2022 WL 893716 (2d Cir. Mar. 28, 2022), the court reiterated that an employee cannot show pretext simply by disputing her employer’s evaluation of her performance.
  • Temporal proximity alone cannot establish pretext. The court acknowledged that there was close temporal proximity between her February 12 leave day and her February 24 termination. However:
    • The majority of her relevant leave (7.5 of 8.5 total days) had occurred months earlier, between October and December 2020.
    • Criticism of her A‑end performance predated any leave.
    • Under Zann Kwan v. Andalex Group LLC, 737 F.3d 834, 847 (2d Cir. 2013), “temporal proximity alone is insufficient to defeat summary judgment at the pretext stage.”
  • Performance concerns predated FMLA‑qualifying leave. Drawing on Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 95 (2d Cir. 2001), the court reasoned that when “gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Here, the same criticisms—pipeline weakness, strategic issues—appeared before and after her leave, supporting consistency rather than pretext.
  • Consistency of the employer’s rationale supports its legitimacy. Citing Weinstock v. Columbia University, 224 F.3d 33, 45 (2d Cir. 2000), the court noted that the consistency of OBS’s explanation (ongoing concerns about her pipeline and inability to meet 2021 objectives) undermined any inference of retaliation.

In short, Haran’s evidence, even when viewed in her favor, showed only:

  • Documented performance concerns predating FMLA‑qualifying leave;
  • Continuation of those concerns; and
  • Termination shortly after another brief day of leave.

Without more—such as explicit comments about her leave, shifting justifications, or clear inconsistencies in performance evaluations—the court found no basis for a reasonable jury to conclude the proffered performance‑based reason was pretext for FMLA retaliation.

5. Implications for retaliation claims

The ruling re‑affirms that:

  • Performance documentation is powerful: Employers with consistent, pre‑existing performance concerns—documented before any FMLA leave—will generally be well‑positioned to defeat retaliation claims.
  • Temporal proximity is not enough at the final stage: While temporal proximity can establish an inference of causation at the prima facie stage, it will rarely carry the day once the employer offers a facially legitimate explanation supported by a paper trail.
  • Evidence of animus remains central: Plaintiffs must look for and present direct or circumstantial evidence that connects the adverse action to their use of FMLA leave—e.g., statements, comparators, inconsistent reasoning, or sudden deviations from performance norms.

E. NYCHRL Claim and Supplemental Jurisdiction

1. The district court’s decision

After granting summary judgment to OBS on the federal FMLA claims, the district court declined to exercise supplemental jurisdiction over Haran’s NYCHRL familial status discrimination claim, dismissing it without prejudice. This left Haran free to pursue that claim in state court if she chose.

2. Second Circuit’s review

The Second Circuit reviewed this decision for abuse of discretion, citing Spiegel v. Schulmann, 604 F.3d 72, 78 (2d Cir. 2010). It noted:

  • Haran did not challenge the dismissal of the NYCHRL claim on appeal.
  • Even if she had, the district court’s decision was within the discretion recognized by 28 U.S.C. § 1367(c) and cases like Kolari v. New York‑Presbyterian Hospital, 455 F.3d 118, 124 (2d Cir. 2006), which approve declining supplemental jurisdiction once all federal claims are dismissed.

Thus, the Second Circuit summarily affirmed this aspect of the judgment.

V. Simplifying Key Legal Concepts

A. Interference vs. Retaliation Under the FMLA

  • Interference: Focuses on whether the employer obstructed or denied the employee’s right to take FMLA leave. Examples include:
    • Denying a qualifying leave request;
    • Failing to restore an employee to the same or an equivalent position after leave;
    • Discouraging an employee from using leave through explicit threats or negative consequences tied to leave.
  • Retaliation: Focuses on whether the employer punished the employee because she exercised or attempted to exercise FMLA rights, typically through adverse actions like termination, demotion, or denial of promotion.

B. “Discouragement” as Interference

“Discouragement” occurs when an employer’s words or actions would dissuade a reasonable employee from using FMLA leave. Examples (from case law generally and the opinion’s cited cases):

  • Explicit threats: “If you take that leave, you’ll be fired” (Avila‑Blum).
  • Pressure to return early: Repeatedly urging an employee on leave to come back before the approved date (Ziccarelli).
  • Using absences as a reason for not renewing a contract where those absences are FMLA‑protected (Preddie).

In Haran, the court clarifies that generic performance criticism, without linkage to leave, is not “discouragement.”

C. “Prejudice” in FMLA Notice Violations

“Prejudice” means a real, practical harm caused by the employer’s procedural violation. To show prejudice from a failure to give proper FMLA notices, an employee might need to show, for example:

  • She would have taken more (or differently structured) leave if she had been properly informed, and that would have made a difference in her job or health outcomes.
  • She lost job protection or benefits because leave was not properly designated as FMLA leave.
  • She was denied reinstatement or otherwise harmed because of confusion about her rights.

In Haran, there was no such harm: she took the leave she requested, remained employed through the leave period, and admitted she knew of FMLA but held back from using it for personal reasons.

D. Burden‑Shifting and “Pretext” in Retaliation Cases

  • Prima facie case: A minimal showing suggesting a plausible link between protected activity and adverse action.
  • Legitimate reason: The employer’s explanation (e.g., performance problems, restructuring, misconduct).
  • Pretext: The plaintiff’s burden to show the stated reason is not the real reason. Evidence of pretext can include:
    • Inconsistent or shifting explanations over time;
    • Evidence that the stated performance deficits are factually false or applied selectively;
    • Derogatory comments or explicit references linking the adverse action to protected activity;
    • Comparative evidence showing similarly situated employees who did not engage in protected activity were treated more favorably.

E. Temporal Proximity

“Temporal proximity” refers to how closely in time the protected activity (e.g., requesting FMLA leave) and the adverse employment action (e.g., termination) occur.

  • Close timing can help create an inference of causation at the prima facie stage.
  • However, as Zann Kwan and Haran emphasize, timing alone is rarely adequate to prove pretext once the employer offers a legitimate explanation supported by evidence.

F. Supplemental Jurisdiction and Dismissal “Without Prejudice”

  • Supplemental jurisdiction: Federal courts may hear state‑law claims related to federal claims in the same case (28 U.S.C. § 1367). If all federal claims are dismissed, courts frequently decline to continue exercising jurisdiction over remaining state claims.
  • Without prejudice: A dismissal “without prejudice” means the claim is not decided on the merits and may be re‑filed in another forum (typically state court, in this context).

VI. Broader Impact and Practical Implications

A. For Employees and Plaintiffs’ Counsel

  • Need for concrete evidence of discouragement: Employees alleging FMLA interference must gather and present concrete evidence tying negative treatment to their use—or contemplated use—of FMLA leave. Vague impressions or inferences drawn solely from timing and tone will be insufficient.
  • Document employer statements carefully: If supervisors make comments linking leave use to performance, staffing, or job security, documenting those statements (emails, contemporaneous notes, witnesses) can be crucial to surviving summary judgment.
  • Emphasize prejudice on notice claims: When asserting notice‑based interference, plaintiffs should be prepared to show how proper notice would have changed their decisions about leave and how that change would have affected their employment or benefits.
  • Develop robust pretext evidence: At the pretext stage, plaintiffs should focus on:
    • Contradictions in the employer’s narrative over time;
    • Comparators (co‑workers with similar performance statistics who were treated differently);
    • Departures from ordinary disciplinary procedures when the employee engaged in protected activity.

B. For Employers, HR, and Defense Counsel

  • Document performance issues early and consistently: Haran illustrates the defensive power of consistent, pre‑leave performance documentation. Employers should:
    • Provide timely, written evaluations;
    • Record specific performance deficiencies and expectations;
    • Avoid conflating attendance/leave issues with performance assessments unless those issues are independent of protected leave.
  • Separate leave decisions from performance management: Evaluate leave requests solely under FMLA criteria, and ensure decisions about performance, discipline, or termination can be justified without reference to leave usage.
  • Still comply with notice obligations: While the court found no prejudice in this case, compliance with 29 C.F.R. § 825.300 and related obligations remains legally required. Employers should:
    • Have standard forms and processes to provide eligibility and rights notices when FMLA‑qualifying situations arise;
    • Train supervisors to notify HR whenever they become aware that an employee’s leave may be FMLA‑qualifying.
  • Be cautious with comments that could be linked to leave: Terms like “lack of commitment,” “not a team player,” or criticism focused on “time away” can be risky if temporally close to FMLA leave. In Haran, the court accepted the employer’s explanation that “lack of focus” referred to client‑relationship strategy, but less precise or more pointed remarks could easily be construed as leave‑related.

C. For the Development of FMLA Law

Haran contributes to FMLA jurisprudence in the Second Circuit by:

  • Clarifying “discouragement”: firmly aligning the Second Circuit with district‑level and out‑of‑circuit cases that require a demonstrable link between the employer’s conduct and the employee’s FMLA use.
  • Reaffirming the prejudice requirement for notice violations: tethering FMLA remedies to actual harm, consistent with Ragsdale and Sarno.
  • Modeling rigorous pretext analysis: emphasizing the importance of performance documentation and consistent rationales in rebutting retaliation claims.

The presence of the Acting Secretary of Labor as amicus underscores the policy stakes. The Department of Labor has often advocated for robust enforcement of the FMLA, especially regarding notice obligations and the concept of “discouragement.” The Second Circuit’s careful, evidence‑demanding approach in Haran signals a relatively restrained, employer‑deferential application of those concepts where performance documentation is strong and direct evidence of animus is absent.

VII. Conclusion

Haran v. Orange Business Services, Inc. is a significant Second Circuit decision that clarifies the contours of FMLA interference and retaliation claims.

The key takeaways are:

  • Discouragement claims require objective proof: Heightened scrutiny and performance criticism, even if stressful and temporally close to FMLA‑qualifying leave, do not amount to interference absent objective evidence linking them to the employee’s use or attempted use of leave.
  • Notice violations are actionable only with prejudice: An employer’s failure to provide individualized eligibility and rights notices can constitute interference only if the employee shows that the failure impaired her ability to exercise FMLA rights or caused actual harm.
  • Performance‑based terminations can defeat retaliation claims: Documented performance concerns predating leave, coupled with consistent explanations and the absence of leave‑related comments, will generally shield employers from FMLA retaliation liability, even where the adverse action closely follows leave.
  • State‑law claims may proceed separately: Once federal claims are dismissed, district courts retain broad discretion to decline supplemental jurisdiction over state and local claims, as the court did with the NYCHRL claim here.

In combination, these holdings reinforce a central theme: the FMLA protects employees’ rights to take qualifying leave, but it does not insulate employees from legitimate, well‑documented performance‑based employment decisions, nor does it render technical notice violations compensable in the absence of demonstrable prejudice. Haran will thus serve as an important precedent in shaping how both plaintiffs and employers litigate—and, ideally, avoid—FMLA disputes in the Second Circuit.

Case Details

Year: 2025
Court: Court of Appeals for the Second Circuit

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