A federal appeals panel has clarified employers can be sued for violating the Family and Medical Leave Act even if they haven’t formally denied an employees’ request for time away.
The underlying case involves Salvatore Ziccarelli, a 27-year Cook County Sheriff’s Office correctional officer. According to court documents, Ziccarelli retired in September 2016 after discussing FMLA leave with Wylola Shinnawi, the office’s FMLA coordinator. He then sued Shinnawi, Cook County Sheriff Tom Dart and the sheriff's office, alleging civil rights, age, disability and FMLA discrimination.
U.S. District Judge Ronald Guzman granted summary judgment to the sheriff’s office.
U.S. Seventh Circuit Court of Appeals Judge David F. Hamilton
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Ziccarelli then sought to bring only his FMLA claim to the U.S. Seventh Circuit Court of Appeals, which issued its opinion on the matter June 1.
Seventh Circuit Judge David Hamilton wrote the opinion. Circuit judges Kenneth Ripple and Michael Scudder concurred.
On appeal, Ziccarelli said a reasonable jury would agree Shinnawi interfered with his FMLA rights by discouraging him during the conversation from taking time off — the contents of “which are hotly disputed,” Hamilton wrote. Ziccarelli also claimed his legal claims could survive summary judgment on his allegation the “office constructively discharged him to retaliate against him for calling Shinnawi to discuss using more FMLA leave,” according to Hamilton.
Court documents show Ziccarelli used from 10 to 169 hours of FMLA leave per year from 2007 through 2016. In July that year, he began seeking treatment for post-traumatic stress disorder. By September, he had used 304 of the 480 allowable leave hours. At that point a doctor recommended he apply for permanent disability benefits, which he could do only after exhausting FMLA leave.
The conflict with Shinnawi arose during a call when Ziccarelli proposed using FMLA time, sick days and vacation to enter an eight-week treatment program. Ziccarelli alleged Shinnawi told him “you’ve taken serious amounts of FMLA … don’t take any more FMLA. If you do so, you will be disciplined.”
In granting summary judgment, Judge Guzman wrote Ziccarelli couldn’t allege retaliation without evidence of an adverse employment action and couldn’t claim interference, because there was no formal denial of FMLA benefits.
The panel noted the sheriff’s office, despite arguing there isn’t a factual dispute, “relies on Shinnawi’s version of her key conversation with Ziccarelli, even though Ziccarelli directly contradicted her version in his deposition testimony.”
According to Hamilton, the key FMLA language supporting Ziccarelli’s interference claim dictates an employer can’t “interfere with, restrain or deny the exercise of or the attempt to exercise, any right provided under” the law. He further wrote the statutory language — including the “attempt to exercise” phrase — “makes clear that a violation does not require actual denial of FMLA benefits.”
The panel offered examples of circumstances under which employers could be subject to interference claims, such as a burdensome approval process, or initial conversations with employee inquiring about medical leave who doesn’t directly invoke FMLA.
“Under this view, an employer that wanted to prevent FMLA use would have many options that would stop short of denying a claim, such as not providing basic FMLA information to an employee unaware of his rights, or orally discouraging FMLA use before the employee actually requested leave,” Hamilton wrote. “This would be a strange result and would conflict with this court’s precedents under the Act.”
Given that Ziccarelli alleged Shinnawi discouraged him from taking leave to which he was entitled, and that Shinnawi disputes the events of that conversation, the panel determined the dispute is appropriate for the trial. However, the panel said, Ziccarelli’s claim of constructive discharge lacks the evidence he needs to continue.
“We do not see how an employee in (Ziccarelli’s) situation could reasonably just give up and walk away from his job, benefits, and treatment plan entirely based on one conversation in which, under his version of the facts, the employer’s representative was simply wrong,” Hamilton wrote. “The district court may have its hands full on remand, particularly if (Ziccarelli) tries to blame snowballing consequences, including even early retirement, on his conversation with Shinnawi. As skeptical as we might be about those efforts, we believe those issues need to be sorted out in the district court in the first instance.”
Although Ziccarelli said he believed his termination was imminent, the panel surmised a reasonable employee “would have thought he had several options short of immediate retirement.”
The panel reversed summary judgment on the interference claim and remanded that for further proceedings, but affirmed summary judgment on retaliation.
While key issues remain in dispute in the case, and could ultimately tank Ziccarelli's legal action, the judges said they hoped their decision to send the case back to Judge Guzman for further proceedings "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."
Ziccarelli is represented in the case by attorneys Brian Wolfman, and various student counsel, of the Georgetown Law Appellate Courts Immersion Clinic, of Washington, D.C.
Dart and ther Sheriff's Office have been represented by the Cook County State's Attorney's Office.