Ziccarelli v. Dart
| Decision Date | 01 June 2022 |
| Docket Number | 19-3435 |
| Citation | 35 F.4th 1079 |
| Parties | Salvatore ZICCARELLI, Plaintiff-Appellant, v. Thomas J. DART, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Brian Wolfman, Hannah Mullen, Attorneys, Georgetown University Law Center, Washington, DC, for Plaintiff-Appellant.
Paul A. Castiglione, Attorney, Khowaja Law Firm, LLC, Chicago, IL, Kathleen Cunniff Ori, Attorney, Office of the Cook County State's Attorney, Civil Actions Bureau, Chicago, IL, for Defendants-Appellees.
Erin Mohan, Attorney, Department of Labor, Office of the Solicitor, Washington, DC, for Amicus Curiae.
Noel J. Francisco, Attorney, Department of Justice, Office of the Solicitor General, Washington, DC, Sharon Fast Gustafson, Attorney, Equal Employment Opportunity Commission, Washington, DC, for Invitee.
Before Ripple, Hamilton, and Scudder, Circuit Judges.
Plaintiff-appellant Salvatore Ziccarelli worked for the Cook County Sheriff's Office for twenty-seven years. During those years, he periodically took leave under the Family and Medical Leave Act of 1993 ("FMLA" or "Act"), 29 U.S.C. § 2601 et seq. In September 2016, Ziccarelli called the Sheriff's Office's FMLA manager, defendant Wylola Shinnawi, to discuss taking more FMLA leave. Based on the contents of that conversation—which are hotly disputed—Ziccarelli says he decided to retire from the Sheriff's Office on September 20, 2016.
Ziccarelli then filed this suit against Sheriff Thomas Dart, Shinnawi, and Cook County (together, "the Sheriff's Office") alleging violations of his rights under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, and the FMLA. He also seeks indemnification of the other defendants from Cook County. After discovery, the district court granted the Sheriff's Office's motion for summary judgment on all claims. Ziccarelli has appealed summary judgment as to only his FMLA claims.
On appeal, Ziccarelli argues that a reasonable jury could find that the Sheriff's Office interfered with his FMLA rights during his conversation with Shinnawi in violation of 29 U.S.C. § 2615(a)(1) by discouraging him from using leave. Ziccarelli also argues that he can survive summary judgment on his claim that the Sheriff's Office constructively discharged him to retaliate against him for calling Shinnawi to discuss using more FMLA leave, in violation of § 2615(a)(2).
We affirm in part and reverse in part. We begin with plaintiff's interference claim to clarify this court's interpretation of § 2615(a)(1), and we then apply that provision to this case. We conclude that plaintiff presented sufficient evidence to defeat summary judgment on his claim of FMLA interference through alleged discouragement. We 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. We affirm summary judgment for the Sheriff's Office on plaintiff's retaliation claim.1
Plaintiff Ziccarelli began working for the Cook County Sheriff's Office as a corrections officer in 1989. He was fired after he provided character testimony for a defendant during a death penalty hearing. He was reinstated after a district court found that the Sheriff's Office had violated his First Amendment rights. Ziccarelli v. Leake , 767 F. Supp. 1450, 1458– 59 (N.D. Ill. 1991).
During his career, plaintiff developed several serious health conditions for which he requested and received permission to take leave under the FMLA. From 2007 through early 2016, plaintiff used between 10 and 169 hours of FMLA leave per year. In July 2016 he sought treatment from a psychiatrist for his work-related post-traumatic stress disorder (PTSD), and by September he had used 304 hours of his allowable 480 hours of FMLA leave for 2016. On the advice of a doctor, plaintiff then decided that he should apply for permanent disability benefits. To do so, he needed to exhaust all his earned sick leave.
On his doctor's recommendation, plaintiff planned to use some of his available sick leave and annual leave to enroll in an eight-week treatment program to address his PTSD. In September 2016, plaintiff Ziccarelli called defendant Shinnawi to discuss the possibility of using a combination of FMLA leave, sick leave, and annual leave for his treatment program. Shinnawi was authorized to approve or deny use of FMLA benefits, but she did not have direct access to sick leave information for Sheriff's Office employees. She also could not approve or deny use of sick leave or annual leave.
Ziccarelli's and Shinnawi's accounts of their conversation differ starkly. In reviewing a grant of summary judgment, we must credit Ziccarelli's, leaving material factual disputes for a jury.
Ziccarelli testified that he called Shinnawi and told her he needed to use more FMLA leave so he could seek treatment. In his account, Shinnawi responded by saying Ziccarelli Dep. 42. In his deposition, Ziccarelli testified that he never told Shinnawi how much FMLA leave he sought to use and that he told her only that he needed to use more FMLA leave. He even corrected counsel on this point:
In plaintiff's account, Shinnawi never explained what discipline he might be subject to for taking more FMLA leave, but based on his past experience with the department, he feared that he would be fired. Plaintiff retired from the department shortly after speaking with Shinnawi, effective on September 20, 2016. Plaintiff did not take leave and was not disciplined before he departed.2
Shortly after he retired, plaintiff exhausted administrative remedies and then filed a complaint in the district court against Sheriff Thomas Dart, Shinnawi, and Cook County claiming violations of his rights under the FMLA and other statutes and seeking indemnification from the county on these claims.
The district court granted the defendants' motion for summary judgment on all claims. On the FMLA claims, the court found that plaintiff's retaliation claim failed because he did not offer evidence of an adverse employment action, and his interference claim failed because he did not show an actual denial of FMLA benefits. Plaintiff Ziccarelli appeals the court's grant of summary judgment on only his FMLA claims.
We review a district court's grant of summary judgment de novo, giving plaintiff as the non-moving party the benefit of conflicting evidence and any favorable inferences that might be reasonably drawn from the evidence. Lane v. Riverview Hospital , 835 F.3d 691, 694 (7th Cir. 2016). Summary judgment is appropriate where there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
We pause briefly to remind the parties of their obligations with respect to the facts at the summary judgment stage. The Sheriff's Office attempts to argue there is no genuine dispute of material fact, but in doing so it relies on Shinnawi's version of her key conversation with Ziccarelli, even though Ziccarelli directly contradicted her version in his deposition testimony. See Appellees' Br. at 12–13. Our precedent demands more of the moving party at summary judgment. See, e.g., Stewart v. Wexford Health Sources, Inc. , 14 F.4th 757, 760 (7th Cir. 2021) (); Malin v. Hospira, Inc. , 762 F.3d 552, 564–65 (7th Cir. 2014) (); Payne v. Pauley , 337 F.3d 767, 770–73 (7th Cir. 2003) (); see generally Anderson , 477 U.S. at 255, 106 S.Ct. 2505 (). Even if a judge might believe a moving party has more and/or better evidence in its favor, a motion for summary judgment does not authorize or invite the judge to weigh evidence and decide whose story is more credible or persuasive. As noted, we must consider the evidence in the light most favorable to the party opposing summary judgment, drawing all reasonable inferences in that party's favor. Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ; Stewart , 14 F.4th at 760.
We turn now to the statutory framework. The FMLA was designed "to balance the demands of the workplace with the needs of families" while guaranteeing workers reasonable access to medical leave "in a manner that accommodates the legitimate interests of employers." 29 U.S.C. § 2601(b)(1)–(3). To that end, the FMLA grants eligible employees up to 12 workweeks of unpaid leave (480 hours) per year for medical and family reasons. See § 2612(a)(1) & (c). An eligible employee is entitled to restoration to the same or equivalent job and benefits when the leave ends, and to continuation of health insurance during leave. § 2614(a)(1) & (c)(1).
To protect these rights, 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. See § 2615(a)(1) & (a)(2). The FMLA also grants employees...
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