Sherrif's Office Comments Show FMLA Interference

Chicago, IL (WorkersCompensation.com) -- An employee can establish FMLA interference even if the employer did not actually deny him leave--at least, in Wisconsin, Illinois, and Indiana. In fact, merely discouraging an employee from pursuing a leave request may be enough to land an employer in court.   

That’s what happened in Ziccarelli v. Dart, No. 19-3435 (7th Cir. 2022). In that case, a corrections officer for a sheriff’s department had a history of taking FMLA leave for several health conditions during his long career. But was that a crime? He certainly didn’t think so--not at first. 

Earlier in the officer’s career, the sheriff’s office had fired him for testifying on behalf of a death row inmate. Following a court’s ruling that the firing violated the First Amendment, the officer was back in front of bars monitoring people behind them.  

Years later, he asked the sheriff's FMLA manager about taking leave so he could enter a PTSD treatment program. According to the officer, the manager responded: "[Y]ou've taken serious amounts of FMLA ... don't take any more FMLA. If you do so, you will be disciplined."  

The officer said the manager never explained what type of discipline he could face. But given his past experience, the officer was afraid he might be fired. 

Not long after broaching the topic of leave with the manager, the officer retired. He did not use more FMLA leave before retiring. Nor did the sheriff’s office discipline him. The officer subsequently sued his employer for FMLA interference. 

In addressing the officer’s claim, the 7th U.S. Circuit Court of Appeals resolved confusion within its circuit (covering the states of Wisconsin, Illinois, and Indiana) over what it takes to establish an interference claim. 

The court noted that FMLA explicitly makes it unlawful for a covered employer to "interfere with, restrain, or deny" an eligible employee's exercise or attempt to exercise FMLA rights. 

The court ruled that there is no requirement that an employer actually deny a worker FMLA benefits. Instead, an employee may succeed by showing that the employer interfered with or restrained the exercise of his rights. In fact, the court stated, mere discouragement can be sufficient to solidify a case. 

The court found that the officer created a genuine dispute about whether the manager discouraged him from taking his one month of remaining FMLA leave and whether he suffered resulting harm. “Threatening to discipline an employee for seeking or using FMLA leave to which he is entitled clearly qualifies as interference with FMLA rights,” the court wrote. 

Of course, the manager had a different story about what happened at the meeting. But determining which story was accurate was a job for the trier of fact. A reasonable jury, the court held, could credit the officer’s account that the sheriff’s office, through its FMLA manager, interfered with his rights by threatening to discipline him if he used his leave hours. 

The court noted that it might be a challenge for the officer to establish that he suffered harm because of the interference. However, it pointed out that there was some evidence that the manager’s statements prejudiced him: the employee never submitted an FMLA leave request or used his remaining leave after he spoke to the manager, purportedly out of fear of being disciplined. 

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