## Facts

- Salvatore Ziccarelli worked about 27 years as a corrections officer for the Cook County Sheriff’s Office and periodically used leave under the Family and Medical Leave Act (FMLA).
- In 2016, Ziccarelli was treated for work-related PTSD and had used 304 of 480 available FMLA hours for the year.
- Ziccarelli called the Sheriff’s Office FMLA manager, Wylola Shinnawi, to discuss additional leave for intensive PTSD treatment; the call’s content was disputed.
- Ziccarelli stated Shinnawi told him not to take any more FMLA leave and threatened discipline if he did; he alleged he feared discipline and retired on September 20, 2016 instead of pursuing additional leave.
- Shinnawi stated she told Ziccarelli he lacked sufficient remaining FMLA hours for the amount of leave requested and that any excess absence would be treated as unauthorized and reviewed under the office’s attendance program.
- Ziccarelli sued the Sheriff’s Office asserting multiple statutory claims; on appeal he pursued only FMLA claims for (1) interference and (2) retaliation based on constructive discharge.

## Issues

1. Whether an employer “interferes with, restrains, or denies” FMLA rights under 29 U.S.C. § 2615(a)(1) by discouraging FMLA use, even without formally denying a leave request.
2. Whether the evidence could support an FMLA retaliation claim under § 2615(a)(2) based on constructive discharge.

## Decision

- The Seventh Circuit reversed summary judgment on the FMLA interference claim and remanded for further proceedings.
- The court held that discouraging an employee from using FMLA leave can constitute actionable interference under § 2615(a)(1), even absent a formal denial of leave.
- Viewing the facts in Ziccarelli’s favor, a reasonable jury could find interference if Shinnawi threatened discipline for taking FMLA leave, and could find resulting harm because the threat allegedly caused Ziccarelli to forgo treatment leave and retire.
- The Seventh Circuit affirmed summary judgment on the FMLA retaliation claim because the record did not permit a finding of an adverse employment action in the form of constructive discharge.
- Disposition: affirmed in part, reversed in part, and remanded.

## Legal Principles

- FMLA interference under 29 U.S.C. § 2615(a)(1) extends beyond outright denial of leave and can include employer conduct that discourages or deters the exercise of FMLA rights.
- A plaintiff may pursue an FMLA interference claim without showing the employer denied a formal leave request, where the employer’s statements or threats would reasonably deter the employee from using FMLA leave and cause harm.
- FMLA retaliation under § 2615(a)(2) requires evidence of an adverse employment action and causation tied to protected activity.
- Constructive discharge requires objectively intolerable working conditions such that a reasonable person would feel compelled to resign; a single discouraging or threatening interaction, without more, may be insufficient.

## Conclusion

The court recognized that threats or warnings that deter FMLA use can support an interference claim without a formal leave denial, but it rejected a retaliation theory where the evidence did not show conditions so intolerable as to amount to constructive discharge.


Ziccarelli v. Dart, 35 F.4th 1079 (7th Cir. 2022)