On November 24, 2015, the 7th Circuit affirmed an order of summary judgment in favor of a defendant employer in a federal lawsuit in which an employee alleged retaliation and interference claims under the Family and Medical Leave Act. Curtis v. Costco Wholesale Corporation, No. 14-3354 (7th Cir., 11/24/2015). This case involves a unique fact pattern. A subordinate of the plaintiff employee reported to management that he had informed her that he planned to take a medical leave to secure his managerial rate of pay and position in case he was demoted. A few weeks later, the employee was demoted from manager to cashier. Two days after the demotion, he formally requested and was allowed a second FMLA leave of absence. During his leave, he requested a transfer, which was refused, since he had not yet been released to return to work by his doctor. He was reinstated at his desired location once he was cleared to return to work.

The employee argued that the employer violated the FMLA by demoting him and prohibiting him from returning to work in retaliation for exercising his FMLA rights by virtue of his comment to the subordinate that he was thinking about another FMLA leave. It is unlawful for an employer to take adverse employment action against an employee in retaliation for protected activity. But the employee’s comment was not protected activity. It did not amount to the exercise of a right granted by the FMLA. An employee is required to provide an employer with 30 days notice of the need for FMLA leave when it is foreseeable or as soon as practicable. Absent proper notice, an employer may deny the leave. Notice requires information that shows that the employee is entitled to the leave. The employee’s comment, although it was relayed to management, was still not sufficient notice. A casual comment that an employee is contemplating medical leave does not provide the employer with enough information about the leave, its timing, or the underlying health condition. Hence, no protected activity, and, ergo, no retaliation claim. Moreover, fraudulent activity is not entitled to protection as a matter of law. The comment is outside of the realm of protected activity, because the employer acted on the subordinate’s concern over an alleged fraudulent leave.

The employee also filed an FMLA interference claim, for which he was required to establish: (1) he was eligible for FMLA protection; (2) the employer was covered by the FMLA; (3) he was entitled to take leave under the FMLA; (4) he provided sufficient notice of his intent to take leave; and (5) the employer denied him FMLA benefits to which he was entitled. Among other things, the employee failed to establish the fifth element, that he was denied a benefit. The employer allowed him to take both leaves for which he applied, and did not deny him any benefit. He produced no evidence that his demotion interfered with his rights. The employer’s refusal to allow him to return to work when he wanted to did not interfere with his rights. Under the FMLA, an employer has a duty to restore an employee to his or her position or an equivalent position, but only when the employee is able to return to work from the leave. An employer does not have a duty to restore an employee to his or her position, if the employee cannot perform the essential job functions. The employee had not been cleared to return to work when he requested the transfer and, once he was, the employer reinstated him. Thus, there was no viable interference claim.