We've all heard the old adage, “actions speak louder than words,” but a recent court case, Ziccarelli v. Dart, 35 F.4th 1079 (7th Cir. 2022), highlights the opposite — that words still matter, even when there is no overt action, and they can get employers in trouble.
Salvatore Ziccarelli, a long-time employee of the Cook County Sheriff’s Office, periodically used Family and Medical Leave Act (FMLA) leave throughout his tenure for numerous serious health conditions. Id. at 1082. For example, between 2007 and 2016, Ziccarelli used FMLA leave every year, ranging from 10 to 169 hours. Id.
In July 2016, Ziccarelli took additional FMLA leave to seek treatment for his work-related post-traumatic stress disorder (PTSD), and by September of that year had used a total of 304 hours of his 480 hours of entitlement. Id. Ziccarelli’s health care provider advised Ziccarelli to apply for permanent disability benefits, which under company policy, he could do only after exhausting all his earned sick leave. Id. According to Ziccarelli, he called his employer’s FMLA manager, Wylola Shinnawi, to discuss his options, including the possibility of using additional FMLA leave. Id. Ziccarelli’s and Shinnawi’s accounts of the conversation that followed vastly differ. According to Ziccarelli, Shinnawi warned him to not take additional FMLA time, and that if he did so, he would be disciplined. Id.
Shinnawi disputed this, maintaining that Ziccarelli requested several months of FMLA leave, and she advised him that he didn’t have enough FMLA time to cover his entire request. Shinnawi also explained that Ziccarelli asked if he would “get in trouble” and that she explained if he took more leave than he was entitled to, it would be “coded unauthorized and then attendance review would handle it moving forward.” Id. at 1082 n. 2.
Ziccarelli further explained that although Shinnawi didn’t elaborate on the type of discipline he would be subject to, he assumed he would be fired if he pursued FMLA leave. Id. at 1082. Shortly thereafter, he retired, and after exhausting administrative remedies, Ziccarelli filed a complaint in the District Court against Sheriff Thomas Dart, Shinnawi, and Cook County, claiming FMLA interference and retaliation and seeking indemnification from Cook County on these claims. Id. at 1082-83.
The defendants filed a motion for summary judgment with the District Court. Note that because they requested summary judgment, Shinnawi’s testimony was disregarded by the Court, and it was assumed the plaintiff’s account was factually correct, as the standard of review is to “give the plaintiff, as the non-moving party, the benefit of conflicting evidence and any favorable inferences that might be reasonably drawn from the evidence.” Id. at 1083. The District Court granted the defendant’s motion on all claims, opining that the retaliation claim failed because Ziccarelli “did not offer evidence of an adverse employment action” and the interference claim failed because he “did not show an actual denial of FMLA benefits.” Id. Ziccarelli appealed the decision, which was reviewed by the Seventh Circuit Court of Appeals.
According to 29 U.S.C. § 2615(a)(1), an employer is not permitted to “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the FMLA. The Seventh Circuit explained in their analysis that legal precedent has established five elements to an interference claim, including these four, that are undisputed in this case:
- The employee must demonstrate that they were eligible for leave under the FMLA and FMLA protections.
- The employer is a covered employer under the FMLA.
- The employee is entitled to leave under the FMLA.
- The employee sufficiently notified their employer of their intent to take FMLA leave.
Ziccarelli, 35 F.4th at 1084 (citing Lutes v. United Trailers, Inc., 950 F.3d 359, 363 (7th Cir. 2020); Preddie v. Bartholomew Consolidated School Corp., 799 F.3d 806, 816 (7th Cir. 2015)).
The Seventh Circuit explained of the fifth element, “our opinions have used varying language that has led to some confusion. Some cases have said the employee must show that ‘his employer denied him FMLA benefits to which he was entitled,’ e.g., Lutes, 950 F.3d at 363, while others have said that the employee must show that ‘his employer denied or interfered with FMLA benefits to which he was entitled.’ E.g., Preddie, 799 F.3d at 816 (cleaned up).” Id. The Court continued, “If a plaintiff shows a violation of § 2615(a)(1), winning relief requires the plaintiff to show ‘prejudice,’ meaning harm resulting from the violation.” Id. at 1084-85 (citing 29 U.S.C. § 2617(a); Lutes, 950 F.3d at 368 (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002))).
In their published decision, the Court breaks down their analysis, which includes:
- Extensive discussion on the syntax and grammar of the statutory text (Grammar is important!)
- The Court’s interpretation of the intent of the statutory text
- The legal definitions of “deny,” “interfere,” and “restrain” at the time the FMLA was passed in 1993
- An examination of existing case law
The Seventh Circuit ultimately determined that a denial of leave is not required to constitute FMLA interference – stating “an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without actually denying an FMLA leave request.” Id. at 1081. The Court therefore reversed the lower court’s grant of summary judgment on the interference claim, remanding the matter back to the lower court for further proceedings. Id. at 1092.
According to 29 U.S.C. § 2615(a)(2), an employer may not “discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by” the FMLA. The Seventh Circuit’s analysis on the retaliation claim was more straightforward and focused mainly on whether Ziccarelli retiring could amount to “constructive discharge,” which means that an employee’s resignation or retirement may be considered involuntary if the employer created a hostile work environment or otherwise coerced or pressured the employee to resign or retire.
The Court disagreed with Zicarrelli that he objectively had no other option than to retire and opined that “a reasonable person likely would have thought he had several options short of immediate retirement under these facts, especially when Ziccarelli had not yet even applied for FMLA leave and any potential discipline remained remote.” Ziccarelli, 35 F.4th at 1091. Thus, the Seventh Circuit affirmed the lower court’s decision on the retaliation claim. Id. at 1092.
The Cook County Sheriff’s Office was not satisfied with the Seventh Circuit’s decision and on August 30, 2022, filed a petition for a writ of certiorari with the U.S. Supreme Court (SCOTUS). The petition poses the following question: Must a plaintiff bringing a claim for FMLA interference prove that they were denied any rights granted by the FMLA?