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In an opinion issued on June 1, 2022, the U.S. Court of Appeals for the Seventh Circuit, in Ziccarelli v. Dart, clarified that employers can unlawfully interfere with an employee’s rights under the Family and Medical Leave Act (“FMLA”) even without formally denying a leave request.

The plaintiff in this case, Salvatore Ziccarelli, was employed by the Cook County Sheriff’s Office as a corrections officer for 27 years. From 2007 through early 2016, Ziccarelli used between 10 and 169 hours of intermittent FMLA leave per year. In July 2016, Ziccarelli sought treatment from a psychiatrist for his work-related post-traumatic stress disorder, and by September he had used 304 hours of his allowable 480 hours of FMLA leave. On the advice of a doctor, Ziccarelli decided to apply for permanent disability benefits but to do so he first needed to exhaust all his earned sick leave. Accordingly, Ziccarelli called the Sheriff’s Office’s benefits manager, defendant Wylola Shinnawi, to discuss the possibility of using a combination of FMLA leave, sick leave, and annual leave for his treatment program. Shinnawi allegedly responded by saying “you’ve taken serious amounts of FMLA …. don’t take any more FMLA. If you do so, you will be disciplined.” Based on his conversation with Shinnawi, Ziccarelli decided to retire from the Sheriff’s Office, and subsequently filed suit alleging, amongst other claims, interference with his rights under the FMLA.

The U.S. District Court for the Northern District of Illinois granted summary judgment to the Sheriff’s Office on the FMLA interference claim based on the undisputed fact that Ziccarelli was never actually denied FMLA leave. In reversing the dismissal, the Seventh Circuit found that Ziccarelli was entitled to a jury trial on his interference claim because there was a genuine issue of material fact as to whether Shinnawi had unlawfully discouraged him from taking FMLA leave. In his deposition, Ziccarelli testified that he never told Shinnawi how much FMLA leave he sought to use, telling her only that he needed to use more FMLA leave. The Court noted that the Sheriff’s Office “relies on Shinnawi’s version of her key conversation with Ziccarelli, even though Ziccarelli directly contradicted her version in his deposition testimony.” As such, a jury must determine whether Shinnawi’s comments to Ziccarelli effectively interfered with, restrained, or denied his exercise of FMLA rights resulting in prejudice.

As a cautionary note, the Court stated, “[w]e hope this opinion will help clarify that an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without actually denying an FMLA leave request.” Employers would be wise to take heed of the Court’s pronouncement.