A U.S. District Court judge in Chicago has denied employer Marsh USA’s summary judgment motion on Count V on Juanda Lynn Jordan’s Family and Medical Leave Act (FMLA) complaint. The complaint alleged that Marsh USA violated the FMLA’s anti-retaliation provision for exercising her right to medical leave because it honestly (though perhaps mistakenly) believed she had failed to provide appropriate documentation for additional time off when it terminated her employment.
The District Court Judge Matthew F. Kennelly examined two 7th Circuit Court of Appeals opinions: one where a firing that was based on the employer’s mistaken belief didn’t violate FMLA and another where the mistake didn’t provide a defense.
“An employer may be entitled to summary judgment on a retaliation claim where, based on a mistaken belief, it terminated an employee for reasons unrelated to the employee’s protected activities. Yet an employer is not entitled to summary judgment where it based its motivation for terminating an employee, or at least a key component of it, on a mistaken belief that the employee was ineligible for the FMLA’s protection.
Under the FMLA, an eligible employee suffering from a serious health condition is entitled to twelve work weeks of leave during each 12-month period. Guzman v. Brown County, 884 F.3d 633 (7th Cir. 2018) (citing 29 U.S.C. Section 2612(a)(1)(D)).
The FMLA “makes it unlawful for an employer to interfere with an employee’s attempt to exercise FMLA rights or to retaliate against employees who exercised their rights.” Id. (citing 29 U.S.C. Section 2615).
In this case, Jordan alleged that Marsh USA violated the FMLA’s retaliation provision by terminating her for exercising her FMLA rights. To prevail on a retaliation,claim under the FMLA, a plaintiff must show that: (1) she engaged in a protected activity; (2) her employer took “adverse action” against her; and (3) “the protected activity caused the adverse action.” Freelain v. Oak Park, 888 F.3d 895 (7th Cir. 2018).
The court considered “the evidence as a whole” and asked whether a reasonable jury could draw an inference of retaliation. King v. Ford Motor Co., 872 F.3d 833 (7th Cir. 2017).
It was noted that the 7th U.S. Circuit Court of Appeals has recently cautioned courts about applying that framework in employment cases. See Ortiz v. Werner Enterprises, 834 F.3d 760 (7th Cir. 2016). (“Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself – or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence.”) The 7th Circuit has reiterated this caution in a context of FMLA retaliation claims. See Freelain, 888 F.3d at 905 (“We repeat our caution that courts should not discard circumstantial evidence simply because it does not provide direct proof of unlawful intent.”)
To survive summary judgment on this claim, Jordan must “point to evidence supporting a reasonable inference that she was fired because she took protected leave.” Tidds v. Administrative Office of the Illinois Courts, 860 F.3d 502 (7th Cir. 2017). “To succeed on a retaliation claim, the plaintiff does not need to prove that retaliation was the only reason for her termination; she may establish an FMLA retaliation claim by showing that the protected conduct was a substantial or motivating factor in the employer’s decision.” Goelzer v. Sheboygan County, 604 F.3d 987 (7th Cir. 2010).
In the Marsh case, the district court found there was a genuine factual dispute regarding whether Marsh should have approved Ms. Jordan’s FMLA through the date of her termination.
Marsh continued to argue that whether Jordan was approved for FMLA leave at the time of her termination, she was not able to establish the third element of her retaliation claim because there is no evidence that Marsh terminated her for taking FMLA leave. Rather, Marsh argued it fired Jordan for violating the company’s leave policy by “failing to submit her medical documents in support of her need for leave after September 30, 2017, or returned to work.”
An employer may require its employees to comply with its “notice and procedural requirements for requesting leave.” 29 C.F.R. Sec. 825.302(d). “Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA – protected leave may be delayed or denied.” Id.; see also Ridings v. Riverside Medical Center, 537 F.3d 755 (7th Cir. 2008). (An employer’s termination of an employee was lawful where its policies permitted it to terminate employees for absenteeism and the employee did not demonstrate FMLA entitlement for her absences).
Because Jordan’s entitled to FMLA leave is genuinely disputed and her taking leave is a key component of her alleged violation of Marsh’s policy, summary judgment was inappropriate. Accordingly, based on the evidence as a whole, Marsh is not entitled to summary judgment on Jordan’s FMLA retaliation claim.
Jordan v. Marsh USA Inc., 18 C 4327 (U.S. District Court for the Northern District of Illinois, Nov. 1, 2019).
Kreisman Law Offices has been handling wrongful termination lawsuits, employment discrimination lawsuits, sexual harassment lawsuits and catastrophic injury lawsuits for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Grayslake, Crete, Mundelein, Glencoe, Glenview, Northbrook, Alsip, Worth, Calumet City, Bensenville, Bolingbrook, Joliet, Aurora, St. Charles, Geneva, Hinsdale, Chicago (Wicker Park, Logan Square, Back of the Yards, Little Italy, Chinatown, Wrigleyville, Bucktown, Lakeview, West Rogers Park, Edison Park, Jefferson Park, Washington Park, Kenwood, Woodlawn, Bronzeville), Wilmette, Skokie, Evanston and Winnetka, Ill.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.
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