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Discharged salesman failed to show he was harmed by any alleged FMLA interference

By Brandi O. Brown, J.D.

He received the same salary and benefits upon his return and did not dispute the facts surrounding his discharge, which provided reasons for his termination not related to his protected activity.

Affirming a district court’s grant of summary judgment to an employer on its former employee’s FMLA claim, the Seventh Circuit found the employee did not provide any basis for monetary or equitable relief. He did not suffer loss of wages or benefits prior to his termination, which was unrelated to his use of leave, the court explained. Further, the only evidence supporting his claim that he had been offered a transfer was based on his supplemental affidavit, and the appeals court found no abuse of discretion in the lower court’s exclusion of that affidavit (Hickey v. Protective Life Corp., February 12, 2021, Ripple, K.).

Grandmother’s illness and death. In 2016, the employee was working as an account executive for Protective Life Corporation selling warranty and insurance products through a handful of large auto dealership accounts. At some point that year, he was told that he needed to be “more proactive” with one of the accounts. Otherwise, he contended, there were no problems with his accounts that were attributable to him. In the middle of November, he was experiencing anxiety and depression as a result of his grandmother’s illness and death and he received FMLA leave. During his absence, his employer acquired another company, U.S. Warranty. When the employee was preparing to return to work, he spoke with U.S. Warranty managers regarding a potential transfer.

Changes to accounts, performance review. Around the same time, he met with his supervisors regarding his return to work and was told that when he returned he would have a territory closer to his home, that he would not have the same accounts, and that he would need to build up his own business. However, his commissions would remain constant for six months. Thereafter, he received an evaluation with an overall “inconsistent” performance rating for 2016. His supervisor testified that it was based on his servicing of clients prior to his leave.

Transfer talk and termination. Later that month, the employee attended an employer-sponsored conference and, while there, spoke to other attendees about his desired transfer. A VP became aware of it, asked him to stop, and ultimately offered him a severance package. He asked the employee to keep the offer in confidence but learned that the employee had violated his instructions. He fired the employee, purportedly for lying to him and because he no longer wanted to continue to work for his current supervisor. The employee sued, alleging FMLA interference and retaliation.

Lower court proceedings. Although the employee conceded that the employer was entitled to summary judgment on the retaliation claim, he argued that the interference claim should go to a jury. With his opposition he submitted an affidavit. Following briefing, the district court notified the parties that it was considering granting summary judgment on a ground not raised by the parties—that in order to recover under the FMLA the employee must show monetary damages resulting from the alleged interference. The parties filed supplemental memoranda, and the court ultimately concluded that the employee could not show that any interference resulted in monetary damages or entitled him to equitable relief.

No damages. On appeal, the Seventh Circuit agreed with the district court. For support, it pointed to its decision in Cianci v. Pettibone Corp., which “illustrates the necessary connection between harm and recovery under the FMLA.” In that case, the court had concluded that where an employee had been fired before any denial of her rights had occurred (for example, no “diminution of income” or costs), no recovery was available.

In this case, the court explained, the employee complained that the employer had interfered with his exercise of rights by giving him a negative review and failing to restore him to an equivalent position. However, he did not come forward with evidence from which a jury could conclude that he suffered damages attributable to those actions. He was promised the same salary and benefits as he received before leave, at least for the first six months after his return. Under that arrangement, his compensation might have diminished six months later, but he was fired within three weeks of his return and never incurred those damages.

He also did not dispute the facts surrounding his termination. Thus, the termination of his employment was not related to his protected activity and the statute’s remedial provisions could not be invoked.

No claim for reinstatement. Alternately, he argued that the evidence established he had been offered a different job with U.S. Warranty and, therefore, that reinstatement to that position or front pay in lieu thereof was appropriate. However, the only evidence supporting his claim that he had actually been offered the job was his own supplemental affidavit, which the district court had refused to consider.

The appeals court found no abuse of discretion in that decision. Initially the employee had testified in deposition that the U.S. Warranty manager told him he wanted him “to be a part of his team,” that the employee “would be receiving an offer from him,” and that the manager would be “looking for [his] application.” The employee testified that he later inquired regarding the status of his application. In his declaration, however, he stated that the division manager had “offered” him the job, that he had decided to accept it, and that he had informed the manager of his decision.

He also placed completion of that agreement prior to his return to work, although his deposition testimony established that he was still in the process of applying after his return. This change provided the “previously missing element” of damages and was suspect in the absence of other evidence supporting his claim.