On September 6, 2016, the 7th Circuit affirmed a jury verdict in favor of a defendant employer in a lawsuit in which the plaintiff, a former employee, alleged that the employer fired her for taking or requesting leave under the Family and Medical Leave Act (“FMLA”), in violation of the FMLA. Arrigo v. Jay E. Link, et al., Nos. 13-3838 & 14-3298 (7th Cir. 9/6/2016). After a trial in federal court, the jury returned a verdict for the defendant. The plaintiff appealed on various evidentiary and procedural grounds. Among other things, she contended that the district court erred by excluding from evidence her supervisor’s notes from a meeting about her return from medical leave. The 7th Circuit concluded that the district court was correct in excluding the notes as irrelevant to the FMLA claim because they did not imply an unlawful motive. The notes, which contained explicit references to the plaintiff’s medical conditions (arguably disabilities under the Americans with Disabilities Act (“ADA”)), would likely have been relevant and admissible in an ADA disability discrimination lawsuit to demonstrate a disability-based discriminatory animus; but the plaintiff’s ADA claim had been thrown out of court on procedural grounds before trial.
It is unlawful for an employer to interfere with, restrain, or deny an employee’s exercise of or attempt to exercise any right under the FMLA, including the right to take up to twelve weeks of unpaid leave for a serious medical condition, or the right to be restored to the employee’s position or an equivalent position upon return from leave. The question is what the decision-maker subjectively believed when he or she made the termination decision. The issue is not whether an employer mistakenly believed that an employee was performing poorly, but whether the employer’s belief was honest. The jury found that the plaintiff had failed to meet her burden to prove that one the reasons that the defendant terminated her was that she took or requested FMLA leave or that she had notified her supervisor that she required maternity leave. Consequently, the jury did not have to decide whether the defendant had proved that it would have terminated the plaintiff even if she had not taken or requested leave or notified her supervisor that she needed leave. In reaching its verdict, the jury considered the fact that other employees who directly reported to the same supervisor had taken medical leave without being retaliated against or terminated.