Was Firing Employee whose Husband was Terminal FMLA Retaliation?

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The FMLA allows an eligible employee to take leave to care for a spouse or other family member. Employees that interfere with that right risk retaliation lawsuits. A case involving a credit collector for a steel company shows how, at least in the 7th Circuit (Illinois, Indiana, and Wisconsin), FMLA retaliation can happen even before an employee becomes eligible for leave.

The company hired the employee in February 2018 as a "credit representative" to collect on past due accounts. In August, her husband was diagnosed with stage 4 pancreatic cancer.

Because her husband’s illness was terminal, the representative remained uncertain over the course of the next 12 months concerning whether she would need to take leave once she became eligible for it in 2019. This was because she didn't know whether her husband would have any treatment at that time.

In the meantime, she told HR  in an email message: "[I]f I cannot work and earn my full pay I am going to crumble." 

The company terminated her on Jan. 10, 2019, for failing to meet the goals set in a performance improvement plan. This was just a few weeks before she was due to become eligible for FMLA leave.

She sued the company for retaliation. The company asked the court to dismiss the case.

The court explained that to prevail on a claim for retaliation in violation of the FMLA, a plaintiff must show that: 1) she engaged in FMLA-protected activity; 2) her employer took an adverse employment action against her; and 3) there is a causal connection between the two. 

In general, the court added, an employee becomes eligible for FMLA leave once she has worked for the employer for at least one year.

Did the representative establish a viable FMLA retaliation case?

A. Yes. She told HR about her husband’s situation and her financial concerns. This was sufficient to put the company on notice that she was planning to ask for leave to care for her husband.

B. No. The company didn’t know she was planning to request leave.

If you selected B, you agreed with the court in Clevenger v. A.M. Castle & Co., No. 21-CV-5889 (N.D. Ill. 03/31/25), which held that the representative failed to establish retaliation.

Generally, the court noted, an employee who has worked less than a year, such as the employee in this case, is not entitled to FMLA leave and thus cannot file an FMLA retaliation complaint. There is an exception, however, that may apply where the employee put her employer on notice that she was requesting leave to be taken once she became eligible for it. 

Here, the representative did not provide such notice. The evidence indicated that she informed the company of her husband’s illness and her concerns about how she would support her family but did not ask for leave or communicate an intent to do so.

Further, her husband’s prognosis was terminal and it was unclear whether he would receive treatment in February 2019. Thus, the representative did not know whether she would need leave once she became eligible for it.

Finding that the company was not on notice of a leave request, the court ruled for the company on the representative’s FMLA retaliation claim.

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