Sanders v. City of Newport, 657 F.3d 772 (2011)

Diane Sanders, a utility billing clerk for the City of Newport, Oregon, began suffering health problems, which (according to her doctor) were due to “multiple chemical sensitivity” triggered by handling low-grade paper at work and poor air quality in her work area. Sanders took an FMLA leave, but the city refused to return her to work because it could not guarantee that her workplace would be safe for her due to her “sensitivity to chemicals and the lack of knowledge as to the chemicals or concentrations that may cause a reaction.” After the jury found in favor of the city, Sanders appealed, asserting that the trial court’s FMLA jury instruction improperly placed the burden on her to prove that she was denied reinstatement without cause. The Ninth Circuit Court of Appeals agreed with Sanders and reversed the judgment, holding that “the plain language of the pertinent DOL regulations provides that the burden is on the employer to show that he had a legitimate reason to deny an employee reinstatement.” See also Leek v. Cooper, 194 Cal. App. 4th 399 (2011) (sole shareholder of corporate employer cannot be liable for discrimination under the California Family Rights Act in the absence of pleading and proof under alter ego doctrine).