On August 4, 2014, the 7th Circuit affirmed summary judgment in an FMLA retaliation case. Langenbach v. Wal-Mart Stores, Inc., No. 14-1022 (8-4-2014). The plaintiff alleged that her employer took various adverse job actions against her and terminated her employment in retaliation for her FMLA leave of absence. A plaintiff may establish a retaliation claim under the Family and Medical Leave Act through the direct or indirect method of proof. With the direct method, a plaintiff must show that: (1) she engaged in statutorily protected activity; (2) the employer took materially adverse job action against her; and (3) there is a causal connection between the protected activity and the adverse action. Negative performance reviews and performance improvement plans are not materially adverse for purposes of an FMLA retaliation claim. A schedule change is also not materially adverse, unless is was made by the employer in order to exploit a known vulnerabilityof the employee. An employment termination, on the other hand, is materially adverse. A plaintiff may demonstrate a causal connection between her FMLA leave and employment termination through a direct admission of the employer, or a convincing mosaic of circumstantial evidence. The circumstantial evidence may consist ofsuspicious timing, disparate treatment, pretext, or ambiguous statements through which an inference of retaliation may be inferred. The evidence must point directly to an illegal motive for the adverse action, without resort to speculation.
InLangenbach?