Yes. At least, in the Seventh Circuit.
Wanna know more? Of course, you do!
So let’s talk a little about the exciting (as employment law cases go) new case of Ziccarelli v. Dart, 35 F.4th 1079 (7th Cir. 2022).
In Ziccarelli, the plaintiff had worked at the Cook County Sheriff’s office for 27 years as a corrections officer. In September 2016, Ziccarelli spoke to the office FMLA manager about taking additional FMLA leave that year. At that time, Ziccarelli had already used about two-thirds of his available FMLA leave. According to Ziccarelli’s account of the conversation, the FMLA manager told him not to take any more FMLA leave that year or he could be disciplined. Of course, the FMLA manager hotly disputes this. However, for lawsuits at the summary judgment procedural stage, all evidence and testimony must be viewed in favor of the plaintiff. Therefore, Ziccarelli’s account of the conversation is the only one that matters. I told you this was exciting! After that conversation, because he feared he would be fired if he took FMLA leave, he retired. It is important to note that he retired without taking FMLA leave or being disciplined in any way, shape, or form.
So the question presented to the Seventh Circuit was is whether or not it is unlawful interference with FMLA rights even if FMLA rights or benefits were never actually denied. The Seventh Circuit says yes, discouraging someone from using rights they have is interreference. The court reached that conclusion by analyzing the statutory text and the Department of Labor’s FMLA regulations as well as the FMLA’s purpose and context. For example, the statute states that it shall be “unlawful for any employer to interfere with . . . the exercise of or the attempt to exercise” FMLA rights. 29 U.S.C. § 2615(a)(1) (emphasis added). Therefore, the court concluded, interference does not require an actual denial of benefits.
Now, to be sure, a plaintiff must still show harm from being discouraged to exercise such FMLA rights even if the benefits were not denied. In Ziccarelli, the Seventh Circuit said said such prejudice was shown because the plaintiff decided not to ask for FMLA leave because of the discouragement: “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.” Ziccarelli, 35 F.4th at 1090.
After all that excitement, I feel I must mention that the Seventh Circuit Court of Appeals does not have jurisdiction over Texas or other courts in the Fifth Circuit, which is our federal court of appeals circuit. That means the Ziccarelli opinion is not binding precedent here. However, opinions issued by the court can be used as persuasive authority and the Fifth Circuit has often cited to Seventh Circuit cases.
So the million dollar question is will this hold up in the Fifth Circuit? There is reason to hope this reasoning could be extended to the Fifth Circuit. Both Circuits use a similar formulation of the prima facie elements. Specifically, both the Fifth Circuit and the Seventh Circuit have described in some cases the final two elements as “the employer interfered with his exercise of FMLA rights, and . . . he was prejudiced as a result.” Compare Park v. Direct Energy GP, LLC, 832 Fed.App’x 288, 293 (5th Cir. 2020) with Ziccarelli, 35 F.4th at 1084. Further, the Fifth Circuit has said, citing regulations, that discouraging FMLA is interference. See Cuellar v. Keppel Amfels, LLC, 731 F.3d 342, 346 (5th Cir. 2019).
If you think your FMLA rights have been interfered with, you should contact an employment lawyer to discuss the facts of your case and what options you might have moving forward. The board certified attorneys at Wiley Walsh, P.C. have handled numerous FMLA interference cases. You can book a consultation online at www.wileywalsh.com or by calling 512-271-5527.