On June 19, 2017, the 7th Circuit affirmed an order of summary judgment in favor of the defendant employer in a lawsuit in which the plaintiff employee alleged that she was fired in retaliation for exercising her right to take a leave of absence under the Family and Medical Leave Act (“FMLA”). Tibbs v. Administrative Office of the Illinois Courts, No. 16-1671 (7th Cir. June 19, 2017). The FMLA provides eligible employees with the right to take up to 12 weeks of unpaid leave of absence for serious medical conditions or other circumstances. A covered employer is required to restore an employee to her position or an equivalent position upon her return to work from FMLA leave, with certain exceptions. The FMLA makes it unlawful for an employer to retaliate against an employee for exercising her right to take an FMLA leave.

In this case, the employee was suspended the day she returned to work after taking an FMLA leave. She was then discharged after she failed to attend a disciplinary hearing. She filed a lawsuit in federal court in which she alleged that she was discharged in retaliation for taking FMLA leave. The district court granted summary judgment for the defendant on the ground that there was no evidence of retaliation. The 7th Circuit affirmed, concluding that there was no evidence from which a jury could reasonably infer that any of her supervisors harbored a retaliatory animus against her. The plaintiff was required but failed to provide evidence of retaliatory intent. There was no evidence that she was fired because she took FMLA leave. Retaliatory intent may be inferred from suspicious timing between the protected activity and the adverse employment action. An adverse job action may come so close on the heels of a protected activity that an inference of retaliation and a causal connection between the two may be raised. But the surrounding circumstances invariably will come into play, with the plaintiff trying to buttress the suspicious timing with other evidence of retaliation. A plaintiff must ordinarily present other evidence that the employer’s proffered reason for the adverse job action was pretext for retaliation. Pretext involves more than just faulty reasoning or mistaken judgment on the part of the employer. Pretext is a lie or a phony reason used as subterfuge for an illegal employment action. An employer’s explanation for firing an employee may be “fishy” enough to support an inference that the reason was discriminatory or retaliatory. Merely disagreeing with an employer’s reasons does not meet this standard though. A plaintiff must present evidence tending to prove that the employer’s proffered reasons are factually baseless, did not actually motivate the discharge, or were insufficient to motive the discharge (such as, in another case, purportedly firing an employee for “theft” consisting of eating a handful of taco chips left in an open bag in an employee lunchroom). In this case, the plaintiff failed to offer evidence that was sufficient to support an inference that any proffered reason of the employer was false. Her case will not go to trial.