Salvatore Ziccarelli v. Thomas Dart
35 F.4th 1079 (2022)
Rule of Law:
An employer can violate the Family and Medical Leave Act (FMLA) by interfering with or restraining an employee's exercise or attempt to exercise FMLA rights, such as by discouraging an employee from using leave, even without an actual denial of a formal leave request, provided the employee suffers prejudice from the violation.
Facts:
- Salvatore Ziccarelli worked for the Cook County Sheriff’s Office as a corrections officer for twenty-seven years, beginning in 1989.
- During his career, Ziccarelli developed several serious health conditions, including work-related post-traumatic stress disorder (PTSD), for which he periodically requested and received FMLA leave.
- By September 2016, Ziccarelli had used 304 hours of his allowable 480 hours of FMLA leave for the year, and on a doctor's recommendation, he planned to use his remaining FMLA, sick, and annual leave to enroll in an eight-week PTSD treatment program.
- In September 2016, Ziccarelli called Wylola Shinnawi, the Sheriff’s Office’s FMLA manager, to discuss the possibility of combining FMLA leave, sick leave, and annual leave for his treatment program.
- According to Ziccarelli's testimony, Shinnawi responded by telling him, "you’ve taken serious amounts of FMLA …. don’t take any more FMLA. If you do so, you will be disciplined."
- Based on this conversation and his past experience, Ziccarelli feared he would be fired, did not submit an FMLA request or take leave, and retired from the department shortly thereafter, effective September 20, 2016.
Procedural Posture:
- Salvatore Ziccarelli exhausted administrative remedies after his retirement from the Cook County Sheriff’s Office.
- Ziccarelli then filed a complaint in the United States District Court for the Northern District of Illinois against Sheriff Thomas Dart, Wylola Shinnawi, and Cook County, alleging violations of his rights under the FMLA and other statutes.
- The defendants moved for summary judgment on all claims.
- The district court granted the defendants' motion for summary judgment on all claims, finding Ziccarelli's FMLA retaliation claim failed due to lack of an adverse employment action and his FMLA interference claim failed because he did not show an actual denial of FMLA benefits.
- Ziccarelli appealed the district court's grant of summary judgment as to only his FMLA claims to the U.S. Court of Appeals for the Seventh Circuit (appellant Ziccarelli, appellees Dart, Shinnawi, and Cook County).
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Issue:
Does an employer violate the FMLA's interference provision (29 U.S.C. § 2615(a)(1)) by discouraging an employee from taking FMLA leave, even if the employee does not formally request or is not actually denied FMLA benefits, provided the employee suffers prejudice from the discouragement?
Opinions:
Majority - Hamilton, Circuit Judge
Yes, an employer violates the FMLA's interference provision when it discourages an employee from taking FMLA leave, even without an actual denial of a formal leave request, provided the employee suffers prejudice from the violation. The statutory text of 29 U.S.C. § 2615(a)(1) prohibits employers from "interfer[ing] with, restrain[ing], or deny[ing]" the exercise or attempt to exercise FMLA rights, employing disjunctive verbs that indicate distinct forms of violation. To interpret the statute as requiring an actual denial would render "interfere with" and "restrain" mere surplusage and would undermine the FMLA's protection of "the attempt to exercise" FMLA rights, potentially allowing employers to impede access through indirect means like intimidation. Department of Labor regulations (29 C.F.R. § 825.220(a)–(b)) explicitly support this interpretation by including "discouraging an employee from using such leave" as a form of interference. The court clarified that while prior circuit cases sometimes used language implying a denial requirement, these instances typically focused on the necessary element of "prejudice" (29 U.S.C. § 2617(a)) for recovery, not as a threshold for establishing a violation. This court's decision in Preddie v. Bartholomew Consolidated School Corp., 799 F.3d 806 (7th Cir. 2015), directly supports that FMLA interference claims can be based on discouragement without a formal application or denial. Applying this interpretation, and crediting Ziccarelli's account for summary judgment purposes, a reasonable jury could find that Shinnawi's alleged threat of discipline for taking "more FMLA" interfered with his FMLA rights. Furthermore, there is a triable issue of fact as to whether this discouragement prejudiced Ziccarelli by causing him not to submit an FMLA request or use his remaining leave. However, the court affirmed summary judgment on Ziccarelli's FMLA retaliation claim under a constructive discharge theory. The court found that even under Ziccarelli's version of the conversation, Shinnawi's statement did not communicate to a reasonable employee that termination was immediate and unavoidable, and that Ziccarelli had several options short of immediate retirement.
Analysis:
This decision significantly clarifies the scope of FMLA interference claims, establishing that an actual denial of FMLA leave is not a prerequisite for proving a violation. By explicitly stating that employer discouragement can constitute interference, the Seventh Circuit strengthens employee protections against subtle forms of employer conduct that might deter workers from exercising their FMLA rights without a direct refusal. This ruling reinforces the FMLA's broad purpose to ensure access to leave and prevents employers from circumventing liability by merely avoiding formal denials. Future litigation will likely focus on what level of discouragement and subsequent prejudice is sufficient to establish a claim, potentially leading to a more nuanced understanding of an employer's responsibilities under the FMLA.
