Thursday, June 2, 2022

Mere "discouragement" is enough to state an FMLA interference claim, federal appeals court holds

"You've taken serious amounts of FMLA … don't take any more FMLA. If you do so, you will be disciplined."

That's what Salvatore Ziccarelli, a corrections officer with the Cook County Sheriff's Office suffering from PTSD, claimed that the FMLA manager, Wylola Shinnawi, told him upon expressing his intent to enter an eight-week in-patient treatment program. 

Based on that conversation (the substance of which Shinnawi disputed), Ziccarelli decided to retire … and sue his employer and Shinnawi for FMLA interference.

The 7th Circuit held that an actual denial of FMLA leave is not necessary to make out an FMLA interference claim, and that mere discouragement of the leave is sufficient.
Threatening to discipline an employee for seeking or using FMLA leave to which he is entitled clearly qualifies as interference with FMLA rights.… A reasonable jury could believe Ziccarelli's account and find that the Sheriff's Office (through Shinnawi) interfered with his remaining FMLA leave hours for 2016 by threatening to discipline him for using them.… There is also evidence in the record that Shinnawi's statements prejudiced Ziccarelli by affecting his decisions about FMLA leave. Ziccarelli had planned to use some of his remaining FMLA leave to seek treatment. After their conversation, Ziccarelli never submitted an FMLA request and did not use the remainder of his 2016 FMLA leave. Ziccarelli claims he was afraid of what would happen after Shinnawi threatened him with discipline for taking more FMLA leave. Evidence of a link between Shinnawi's alleged discouragement and Ziccarelli's decision not to take his remaining FMLA leave for 2016 is sufficient to require a trial.

Managers and supervisors must understand the need to choose their words carefully when an employee expresses an intent to take FMLA leave. No one should discourage an employee from taking FMLA leave to which he or she is legally entitled. As this case illustrates, mere discouragement is enough for an employee to state an FMLA interference claim … which could result in both the employer and the manager or supervisor being sued.