7th Circuit Rules that Discouraging Employee from Taking Leave Can Violate FMLA Rights

A unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit has ruled that an individual may still have a cognizable civil rights lawsuit even if his employer merely discouraged him, rather than formally denied him, from taking leave under the Family and Medical Leave Act (FMLA). In its lengthy opinion, the court clarified that workers need only show that their employers interfered with their FMLA leave requests to state a viable claim for violating the statute. The case is Salvatore Ziccarelli v. Thomas J. Dart, et al., case number 19-3435, U.S. Court of Appeals for the Seventh Circuit.

Former sheriff’s department employee Salvatore Ziccarelli filed suit in April 2017 against the Cook County Sheriff, Wylola Shinnawi, the office’s FMLA benefits manager, and Cook County, alleging that they violated the FMLA, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. 

Ziccarelli had been a correctional officer for Cook County for 27 years when he developed multiple medical conditions, including post-traumatic stress disorder (PTSD) related to his job. By September 2016, Ziccarelli had used 304 hours of the 480 leave hours allowable under FMLA. He contacted Shinnawi about using his remaining hours and some of his sick leave to attend an eight-week PTSD treatment program. 

According to Ziccarelli, Shinnawi told him that he could not take more time off and he would face disciplinary action if he attempted to use any more FMLA hours, even though she did not have access to his available sick leave balance. Shinnawi disputes this account. Ziccarelli feared he would be fired for taking more leave, so he retired soon after that and filed suit. 

In December 2018, the trial court granted summary judgment in favor of the defendant on all claims. Zicarelli appealed solely on the FMLA claim, arguing that Shinnawi and the sheriff’s department violated his FMLA rights by discouraging him from taking leave. He also argued that Cook County constructively discharged him, thus retaliating against him in violation of the FMLA. 

The panel of the Seventh Circuit hearing Zicarelli’s appeal partly sided with him, pointing out that the FMLA prohibits employers from “interfering with, restraining, or denying the exercise of FMLA rights” and “discriminating or retaliating against employees” who choose to exercise their FMLA rights. As a result, the court ruled that the defendants were not entitled to summary judgment on the FMLA claim of interference, and Zicarelli had the right for that claim to be heard by a jury. 

The court rejected Zicarelli’s constructive discharge or FMLA retaliation claim as purely speculative, affirming the summary judgment for that portion of the suit.

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