On April 30, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant employer in a federal lawsuit in which the plaintiff alleged that the defendant retaliated against him for exercising his rights under the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”). Freelain v. Village of Oak Park et al., No. 16-4074 (7th Cir. 4/30/2018). The plaintiff, an Oak Park police officer, made an internal complaint of sexual harassment, alleging that another officer made unwelcome sexual advances toward him. After he reported the alleged sexual harassment, he began to experience migraine headaches and other medical conditions that he attributed to stress related to the alleged sexual harassment, for which he took time off work. He alleged that as a result of his medical condition and use of leave time, the defendant retaliated against him, in violation of the FMLA and ADA, by classifying his sick leave as unpaid, requiring him to undergo a psychological evaluation before returning to duty, and waiting three months before approving his request to engage in outside employment. The 7th Circuit held that the subject employment actions did not constitute protected activity and that therefore, the plaintiff’s FMLA and ADA retaliation claims failed as a matter of law.

The 7th Circuit concluded that the actions identified by the plaintiff as retaliation would not discourage a reasonable employee from exercising his or her rights under the FMLA or ADA. Legal analyses of FMLA and ADA retaliation claims overlap. The ADA prohibits covered employers from discriminating against qualified individuals with disabilities. The FMLA grants qualified employees twelve weeks of unpaid leave during a twelve-month period for qualifying health reasons. Both the FMLA and the ADA prohibit employers from retaliating against employees who assert their statutory rights. In this case, the plaintiff was allowed to take all the unpaid leave he wanted. Thus, his claim, that being placed on unpaid leave–exactly what the FMLA allows–violated the anti-retaliation provisions of the FMLA and ADA, was unfounded. Granting an employee’s FMLA right to unpaid leave, consistent with the statutory requirements, is not retaliatory adverse job action under the FMLA or ADA, unless there is evidence that the employer deviated from its normal paid leave practices and targeted the employee for unpaid leave because he or she asserted their statutory rights.

Retaliation claims under the FMLA and ADA require the following elements: (1) the employee engaged in statutorily protected activity; (2) the employer took adverse job action against the employee; and (3) the protected activity caused the adverse job action. An employee’s exercise of his or her right to an FMLA leave of absence is statutorily protected activity. In this case, however, the plaintiff failed to establish that the defendant took any materially adverse employment action against him. The category of employment actions prohibited by the statutes’ anti-retaliation provisions is broader than the category of adverse employment actions prohibited by the statutes’ anti-discrimination provisions. To constitute a materially adverse employment action for purposes of a retaliation claim, however, the job action in question must be such that it would have dissuaded a reasonable employee from engaging in protected activity. The test uses an objective standard, based on the manner in which a reasonable employee would react, not a plaintiff’s subjective feelings. The question is whether a reasonable employee in the plaintiff’s circumstances would be dissuaded from engaging in protected activity. In this case, the plaintiff’s leave classification as unpaid was not materially adverse. There was no evidence that the defendant routinely applied its leave classifications differently than it did for the plaintiff. The plaintiff’s claim that the defendant retaliated against him by requiring a psychological evaluation before he returned to work also failed, because the medical examination was permissible under the circumstances. Lastly, the delay in approving the plaintiff’s request for secondary employment was also not a materially adverse employment action. There was no evidence that the plaintiff was singled out for a “slow-walk” because he exercised his rights under the FMLA and ADA.