In a recent decision, the United States Court of Appeals for the Seventh Circuit clarified that an employer can violate the Family and Medical Leave Act (“FMLA”) by discouraging an employee from taking FMLA leave, even without actually denying an FMLA leave request.
In Ziccarelli v. Dart, Plaintiff Salvatore Ziccarelli argued that his employer, the Cook County Sherriff’s office, violated the FMLA by discouraging him from taking FMLA leave. Between 2007 and early 2016, Ziccarelli took varying amounts of FMLA leave every year. By September 2016, he had used 304 of 480 of his available FMLA leave hours for the year. He then enrolled in an 8-week treatment program for PTSD that year. In his lawsuit, he alleged that he called the Sherriff’s Office’s FMLA manager, Wylola Shinnawi, to discuss using a combination of his FMLA leave, sick leave, and annual leave to attend the program. He said that Shinnawi told him that he’d already taken a significant amount of FMLA leave, and that he should not take any more FMLA leave, otherwise he would be disciplined. Ziccarelli chose to retire, stating that he feared he would be fired if he took additional FMLA leave.
Following Ziccarelli’s retirement, he filed a lawsuit alleging violations of his rights under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the FMLA. The United States District Court for the Northern District of Illinois granted the defendants’ motion for summary judgment on all of Ziccarelli’s claims. With respect to Ziccarelli’s claim that the Sherriff’s Office unlawfully interfered with his FMLA rights, the district court found that Ziccarelli’s claim failed because he did not show that he was actually denied any FMLA benefits.
Ziccarelli appealed the district court’s ruling on his FMLA interference claim. On appeal, the Seventh Circuit noted that there are five elements to an FMLA interference claim. The first four elements of a FMLA interference claim are: (i) the employee was eligible for FMLA protection; (ii) the employer was covered by the FMLA; (iii) the employee was entitled to leave under the FMLA; and (iv) the employee provided sufficient notice of intent to take FMLA leave. These elements were not contested in Ziccarelli’s appeal. His appeal concerned the fifth element of his FMLA interference claim, which the Seventh Circuit noted was the subject of confusion. While some prior decisions indicated that an employee must show that their employer denied them FMLA benefits to prevail on an interference claim, other decisions indicated that the employee must show that the employer “denied or interfered with FMLA benefits to which [the employee] was entitled.” Ultimately, the court concluded that the text of the FMLA makes clear that an employee is not required to prove an actual denial of FMLA benefits to establish a violation of the Act.
The Court reached its conclusion for a number of reasons. First, the text of the statute makes clear that interference, without an actual denial of benefits, is sufficient to violate the Act. The FMLA states that it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” under the Act. 29 U.S.C. § 2615(a)(1). Because the verbs in the statute are listed disjunctively, the text suggests that interference or restraint alone are sufficient to violate the Act. Moreover, the court stated that the prohibited activities are not so similar so as to suggest they were intended to be redundant.
Second, the court indicated that the statute’s protection of an employee who attempts to exercise FMLA rights indicates that an actual denial of benefits is not required to establish a violation. To protect an attempt to exercise FMLA rights, the court noted the statute must be read so that interference or restraint without an actual denial is still a violation. For example, if an employee meets with their employer to seek medical leave information intending to exercise their FMLA rights, the court stated that the employee should be protected under the statute due to attempting to exercise their FMLA rights, even if the employer had not yet refused to grant an actual FMLA request.
Third, the court stated that it would conflict with the rights granted under the FMLA to permit employers to interfere with or restrain the use of FMLA leave so long as no unlawful denial occurs. Employers should not be permitted to actively discourage employees from taking steps to access FMLA benefits, the court said.
Finally, the Court stated that the FMLA implementing regulations supported its interpretation, because the regulations provide that the “FMLA prohibits interference with an employee’s rights under the law.” The court further explained that even though there have been variations in how courts have worded the test for FMLA interference, there was no genuine intra or inter circuit split on whether denial is essential to an interference claim. The court stated that the only time it had been squarely confronted with the issue, it determined that an FMLA interference claim does not require an actual denial of benefits. It also explained why other decisions did not conflict with this finding.
In summary, the Seventh Circuit found that denial of FMLA benefits is not required to demonstrate a violation of the FMLA based on FMLA interference. However, the court did also make clear that to recover for a violation, a plaintiff must also show they were prejudiced by the violation.
Applying its decision to Ziccarelli’s claim, the Seventh Circuit found there was a triable issue of fact as to whether Zicarelli could show that the Sherriff’s Office interfered with, restrained, or denied FMLA benefits to which he was entitled. The court noted that threatening to discipline an employee for seeking or using FMLA leave to which the employee is entitled clearly qualifies as interference with FMLA rights. There was also evidence that Shinnawi’s statements prejudiced Ziccarelli’s decisions about FMLA leave. Thus, the court concluded that a reasonable jury that believed Ziccarelli’s account of the facts could find a violation of § 2625(a)(1) and that the violation prejudiced Ziccarelli’s access to his remaining FMLA leave. Interestingly, the court noted that it could not see how an employee in Ziccarelli’s situation could reasonably give up and walk away from his job, benefits and treatment plan based on the alleged conversation with Shinnawi alone. Thus, the Seventh Circuit stated that the district court would have to sort out any issue related to the plaintiff trying to “blame snowballing consequences, including early retirement, on his conversation with Shinnawi.”
Ultimately, the Seventh Circuit’s decision serves as a reminder to employers of the importance of training employees likely to receive FMLA requests on the proper procedure for responding to such inquiries. Moreover, the decision highlights that employers would be well advised to contemporaneously document conversations they have with employees regarding FMLA requests and use.
[View source.]
