Seventh Circuit Rules Denial of Benefits Not Required to Prevail on FMLA Interference Claim
December 14, 2022
By: Stephen B. Stern
In Ziccarelli v. Dart, 35 F.4th 1079 (7th Cir. 2022), the United States Court of Appeals for the Seventh Circuit held that the denial of benefits under the Family and Medical Leave Act (“FMLA”) is not required in order for a plaintiff to prevail on an interference claim under the FMLA.
In Ziccarelli, Salvatore Ziccarelli worked for the Cook County Sheriff’s Office for about 27 years and retired, rather than continue working, when, according to him, he faced substantial resistance to taking FMLA leave as he tried to make arrangements for such leave. Ziccarelli filed interference and retaliation claims against the Sheriff under the FMLA. The district court granted summary judgment to the Sheriff and dismissed the case. On appeal, the Seventh Circuit affirmed in part and reversed in part the trial court’s decision.
During the course of his lengthy career at the Sheriff’s Office, Ziccarelli developed serious health conditions, leading him to take between 10 and 169 hours of FMLA leave per year between 2007 and early 2016. In July 2016, he sought treatment from a psychiatrist for his work-related post-traumatic stress disorder and, by September, he had used 304 of the 480 hours he was allotted in 2016. Based on the advice of his doctor, Ziccarelli sought permanent disability benefits, but, to obtain such benefits, he first needed to exhaust all of his earned sick leave benefits. In furtherance of exhausting those benefits, Ziccarelli contacted Sheriff Thomas Shinnawi (a named defendant in the case) about using a combination of FMLA leave, sick leave, and annual leave for the treatment program he planned to enter. The court noted there were substantial disputes about what transpired in the conversation between Ziccarelli and Shinnawi.
Ziccarelli contended that he told Shinnawi that he needed to use more FMLA leave so he could seek treatment. According to Ziccarelli, Shinnawi responded by stating, “you’ve taken serious amounts of FMLA . . . don’t take any more FMLA. If you do so, you will be disciplined.” Ziccarelli said that Shinnawi never explained what disciplinary action would be taken, but, based on his past experience in the department, he thought he could be terminated from employment. Rather than continue dealing with this hostility, Ziccarelli elected to retire without taking any additional FMLA leave.
Shinnawi recounted the conversation differently, contending that Ziccarelli requested leave for several months and that she told Ziccarelli he did not have enough FMLA hours to take such leave. She further contended that it was Ziccarelli that inquired whether he would “get in trouble” for taking FMLA leave and she responded by noting that he could “if he used FMLA that he did not have[;] it would be coded unauthorized and then attendance review would handle it moving forward” (and attendance review could result in termination from employment).
The court explained that the FMLA prohibits covered employers from “(i) interfering with, restraining, or denying the exercise of FMLA rights; and (ii) discriminating or retaliating against employees for exercising FMLA rights.” The FMLA allows individuals to file claims under each of these provisions and collect damages.
With respect to the interference claim, the court explained that five elements need to be satisfied, of which there is no ambiguity as to what the first four require: (1) the employee was eligible for the FMLA’s protections; (2) the employer was covered by the FMLA; (3) the employee was entitled to take leave under the FMLA; and (4) the employee provided sufficient notice of intent to take FMLA leave. As for the fifth, element, the Seventh Circuit noted that its prior decisions have led to some confusion as to what a plaintiff is required to show in order to prevail. To this end, the court noted some of its prior cases have required that an employee show the employee’s employer “denied him FMLA benefits to which he was entitled,” while other cases have required that an employee show that his/her employer “denied or interfered with FMLA benefits to which [the employee] was entitled.” The appeal focused on what is required to satisfy the fifth element.
The Seventh Circuit proceeded to explain the text of Section 2615(a)(1) of the FMLA “makes clear that a violation does not require actual denial of FMLA benefits” and proceeded to hold that a denial of benefits is not actually required in order to prevail on an interference claim under the FMLA. In support of this conclusion, the court noted that the wrongful acts in the inference provision are written disjunctively – a plaintiff must show that his/her rights were interfered with, restrained, or denied. The court explained that requiring a denial of benefits with this statutory text would make the phrase “interfere with, restrain, or” surplusage, which is contrary to the rules of statutory construction. The Seventh Circuit further explained in support of its surplusage argument that an employer may interfere with or restrain rights under the FMLA by, for example, implementing a burdensome approval process or discouraging employees from requesting leave, and in doing so the employer would not necessarily deny employees the benefits provided under the statute. The text of the statute further supports this conclusion according to the Seventh Circuit, because it would make no sense to require a claimant show that he/she was denied benefits when he/she is protected simply by attempting to exercise his/her rights under the FMLA. Lastly, the court explained that interpreting the statute in a way to allow employers to interfere with or restrain the use of FMLA rights as long as no denial of benefits occurred necessarily would undermine the rights guaranteed by the statute. In this regard, the court explained that FMLA rights would be substantially diminished if an employer were permitted to actively discourage employees from taking steps to access or otherwise utilize FMLA benefits.
Despite this interpretation of the FMLA, the Seventh Circuit acknowledged that prior decisions from the Seventh Circuit and other courts “have sometimes phrased the test for FMLA interference in terms that seem to require an actual denial of benefits.” Notwithstanding the previous instances in which the standard may have suggested a denial of benefits was required, the Seventh Circuit proceeded to conclude “Section 2615(a)(1) is not ambiguous on this issue – denial of FMLA benefits is not required to demonstrate an FMLA interference violation.” (emphasis added by the court). Applying this test, the court concluded that there are disputes of material fact as to whether Shinnawi interfered with Ziccarelli’s rights under the FMLA and remanded the case for trial with respect to the interference claim.
With respect to the retaliation claim, the court concluded there was insufficient evidence to conclude that Ziccarelli was constructively discharged based on his belief that his termination from employment was imminent. As a result, the court affirmed the district court’s grant of summary judgment on Ziccarelli’s retaliation claim.
The Seventh Circuit’s decision in Ziccarelli is significant because it clarifies the standard to bring an interference claim under the FMLA. While there may have been some ambiguity previously, the Seventh Circuit made clear that it is not necessary for a plaintiff to establish that FMLA benefits were in fact denied in order to bring an interference claim under the FMLA.