On June 1^st the U.S. Court of Appeals for the Seventh Circuit, in Chicago, reversed a lower court’s dismissal of FMLA claims where the plaintiff employee’s request to use FMLA leave, had not been denied. The appellate court held that a verbal conversation that included an alleged threat to discipline the employee for taking more FMLA, if proven, was enough to prove a violation.   

The Plaintiff in the case, Salvatore Ziccarelli, a Cook County correctional officer, sued the County, the Sheriff, and the office’s FMLA benefits manager, on claims under Title VII, the ADEA, ADA and FMLA.[1]  The relevant facts are that Ziccarelli had already used 304 of his annual allotment of 480 hours of FMLA when he sought to use more. He called the FMLA manager about using 8 more weeks of leave, along with sick leave, to attend a PTSD treatment program. His lawsuit alleged that the manager replied that if he tried to use more FMLA hours, he would be disciplined. Fearing he would be fired for using more leave, Ziccarelli retired… and sued!

The FMLA manager denied threatening Ziccarelli, however, the trial court did not find it necessary to wade into that factual dispute. Instead, it dismissed the entire case because Ziccarrelli was never formally denied FMLA leave. On appeal, the appellate court reversed the dismissal of the FMLA “interference” claim and remanded it to the trial court for further proceedings. The court noted that the statute plainly prohibits “interfering with, restraining, or denying the exercise of FMLA rights,” and prohibits “discriminating or retaliating against employees” for exercising those rights.  The court concluded: “We hope this opinion will help clarify that an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without actually denying an FMLA leave request.”

Threatening an employee with discipline for asking to take available FMLA leave, is drastic and unlikely to often occur. But the extent to which this precedent may be applied in lesser circumstances going forward, remains to be seen. Will expressions of skepticism or frustration over an employee’s use of FMLA, expose managers to claims of “discouraging” the use of FMLA? It may help to delegate FMLA administration to specialists or outsource it to minimize this sort of risk. But as this recent decision suggests, liability can stem from unfavorable comments by supervisors, operations managers, and others who may frown on an employee’s use of FMLA even though they are not the ones granting or denying it. Suggestions: Include some basics on FMLA and the lessons of this decision, in training for all management, and consider shoring up FMLA policy language on requesting leaves, to include non-retaliation language like other policies.

Questions? Contact attorney James Sherman at 952-746.1700 or at jasherman@wesselssherman.com

[1] Incidentally, thanks to appellate court precedent initially established in the Seventh Circuit by this article’s author, the Sheriff and benefits manager could not be successfully sued in their individual capacity under the ADA, ADEA, or Title VII. Unfortunately, the FMLA, like FLSA, has different statutory language courts have read to permit FMLA lawsuits against individuals. Something FMLA benefits managers and others involved in approving leaves of absence probably ought to keep in mind.