This paper addresses the legal technicalities and practical procedural steps involved in the litigation of a Family And Medical Leave Act (“FMLA”) case in federal court.
When, Where, And How, to Start Suit
Regarding procedure, an FMLA case must be brought within 2 years of the employer’s violation, or within 3 years if the employer’s FMLA violation was willful. Sampra v. DOT, 888 F.3d 330, 332 (7th Cir. 2018); 29 U.S.C. § 2617(c)(1). If the employer acted willfully, the statute of limitations is extended to three years pursuant to 29 U.S.C. § 2617(c)(2).
The FMLA statute of limitations clock begins to run from the “last event constituting the alleged violation.” 29 U.S.C. § 2617(c)(1).
Unlike other anti-discrimination laws that allow the employee to sue only the employing entity, i.e., employer, under the FMLA, the employee may also sue the individuals involved in violating the FMLA, such as a human resources manager. Ruckebeil v. Cancer Treatment Ctrs. of Am., Inc., No. 15 C 08259, 2016 BL 70720, at *3 (N.D. Ill. Mar. 8, 2016). An individual may be liable under the FMLA if she “had supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation.” Evans v. Henderson, No. 99 C 8332, 2000 U.S. Dist. LEXIS 11907, 2000 WL 1161075, at *3 (N.D. Ill. Aug. 16, 2000) (citing Riordan v. Kempiners, 831 F.2d 690, 694 (7th Cir. 1987). Additionally, an individual defendant need not “exercise exclusive control over all the day-to-day affairs of the employer so long as he or she possesses control over the aspect of the employment alleged to have been violated.” Evans, 2000 U.S. Dist. LEXIS 11907, 2000 WL 1161075, at *3.
Also different from other anti-discrimination laws, the employee may go directly to court to litigate, instead of first filing a complaint with an administrative agency.
Once suit is filed, one may expect a trial date to follow by 13 months or longer. During the time leading to a trial date the attorneys will be busy, first gathering documentary evidence, then taking sworn deposition testimony, followed by a motion for summary judgment to determine which facts are disputed. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
When a party’s summary judgment motion is reviewed, the Court views all facts and draws reasonable inferences therefrom in the light most favorable to the nonmoving party (employee). Burnett v. LFW, Inc., 472 F.3d 471, 477 (7th Cir. 2006). At the summary judgment stage, the judge’s function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. “Because evidence directly supporting a claim of intentional discrimination is rare, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.” Pantoja v. American NTN Bearing Mfg. Corp., 495 F.3d 840 (7th Cir. 2007).
Assuming the case is not dismissed on summary judgment, the case will proceed to a trial, and at the election of either party, will be decided by a jury.
FMLA Claims For Interference And Retaliation
The FMLA provides for leave from work for qualifying medical and family events, including the birth of a child. See 29 U.S.C. § 2612(a)(1)(A). During FMLA leave, an employee’s job is protected, meaning they have the right to be reinstated to the same or an equivalent position at the conclusion of their leave. 29 U.S.C. § 2614(a). While FMLA protections typically extend for twelve weeks, an employer may be bound to provide additional benefits if they are approved, or not denied, and this approval is relied upon. See Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th Cir. 2000). Further, the law does not require FMLA protections to begin when an employee is first off work, although an employer may mandate that FMLA protections begin and end concurrent to or independent of any employer-provided time off. Davis v. Ill. Dep’t of Hum. Servs., 137 F.4th 641, 645 (7th Cir. 2025).
There are two prongs to the FMLA; 1) a claim that the employer interfered with the employee’s FMLA rights; and, 2) a claim that the employer retaliated against the employee for exercising FMLA rights. These two claims of interference and retaliation are usually intertwined and inseparable, but require specific individual analysis.
FMLA Interference
To prevail on an FMLA-interference theory, the employee must prove that: “(1) she was eligible for the FMLA’s protections; (2) her employer was covered by the FMLA; (3) she was entitled to take leave under the FMLA; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she was entitled.” Makowski v. SmithAmundsen LLC, 662 F.3d 818, 825 (7th Cir. 2011).
An employee’s claim based on the employer’s failure to restore her to her same position, or a position substantially equivalent to her former role, is a denial of her FMLA protections which is actionable as interference. See 29 U.S.C. § 2614(a)(1); see also 29 C.F.R. § 825.215.
FMLA Retaliation
The FMLA affords protection to employees who are retaliated against because they exercise rights protected by the FMLA. Lewis v. Sch. Dist. # 70, 523 F.3d 730, 741 (7th Cir. 2008). “Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions….” Pagel v. TIN Inc., 695 F.3d 622, 631 (7th Cir. 2012). To succeed on a retaliation claim, the employee does not need to prove that “retaliation was the only reason for her termination; she may establish an FMLA retaliation claim by ‘showing that the protected conduct was a substantial or motivating factor in the employer’s decision.’” Lewis, 523 F.3d at 741-42 (quoting Culver v. Gorman & Co., 416 F.3d 540, 545 (7th Cir. 2005)). FMLA “retaliation may be established by either the direct or indirect methods of proof.” Coleman v. Donahoe, 667 F.3d 835, 859 (7th Cir. 2012).
To prove retaliation under the direct method, the employee must show she (1) engaged in protected activity, (2) suffered a materially adverse employment action, and (3) there was a causal link between her protected activity and the adverse action. Id. To prove retaliation under the indirect method, the employee must show that she: (1) engaged in protected activity, (2) suffered a materially adverse employment action, (3) was meeting her employer’s legitimate expectations, and (4) was treated less favorably than similarly-situated employees who did not engage in protected activity. Argyropoulos v. City of Alton, 539 F.3d 724, 733 (7th Cir. 2008).
Additionally, under the indirect method of proof, the elements above constitute a prima facie case of retaliation, which then shifts the burden to the employer to articulate a legitimate, nonretaliatory reason for discharge. Coleman, 667 F.3d at 845. The burden then shifts back to the employee to present evidence of pretext. Id.
Direct evidence of retaliation may be proved when (1) the employer went on FMLA-protected leave, (2) the employee was laid off, and (3) the decision to lay the employee off was based on a lack of work for her—which was a direct result of her job duties not being returned to her after her FMLA leave (a causal link between her protected activity and the adverse action). See Coleman, 667 F.3d at 859.
Further, when the employer transfers job duties to a co-worker during the FMLA leave, that preferential treatment is indirect evidence of a violation. See Argyropoulos, 539 F.3d 733.
Pretext
An employee may show pretext “by offering evidence that the employer’s ostensible justification is unworthy of credence.” Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 395 (7th Cir. 1998) (internal citations omitted). An “employee must give evidence tending to prove that the employer’s proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the discharge.” Id. at 395. “[W]hen the sincerity of an employer’s asserted reasons for discharging an employee is cast into doubt, a factfinder may reasonably infer that unlawful discrimination was the true motivation.” Id.
FMLA Remedies
The remedies available under the FMLA include loss of pay and benefits, interest, attorney fees, and litigation expenses. 29 U.S.C. § 2617(a)(3). Courts may also order an employer to hire, reinstate, or promote an individual. 29 U.S.C. § 2617(a)(1)(B); Simon v. Coop. Educ. Serv. Agency #5, 46 F.4th 602, 608 (7th Cir. 2022).
Double Damages Are The Norm
The FMLA authorizes district courts to award liquidated double damages against employers who violate the statute. Ulit v. Advocate South Suburban Hosp., Case No. 08 cv 2698., 2009 BL 273277 (N.D. Ill. Dec. 21, 2009), citing 29 U.S.C. § 2617(a)(1)(A)(iii). Liquidated damages are “mandatory unless the district court finds that the defendant-employer was acting in good faith and reasonably believed that its conduct was consistent with the law.” Shea v. Galaxie Lumber & Constr. Co., 152 F.3d 729, 733 (7th Cir. 1998). “The employer bears a substantial burden in showing that it acted in good faith and with reasonable grounds to believe that its actions did not violate the [statute].” Bankston v. State of Illinois, 60 F.3d 1249, 1254 (7th Cir. 1995). The Seventh Circuit has remarked that there is a “strong presumption” in favor of doubling. Shea, 152 F.3d at 733; see also id. (“Doubling is the norm, not the exception”).
CONCLUSION
By following each procedural step carefully and presenting all evidence clearly and persuasively, an FMLA case will be in the best position to establish justice in the eyes of the judge and jury.
Alan C. Olson, SBN: 1008953
Alan C. Olson & Associates, S.C.
2880 S. Moorland Rd.
New Berlin, WI 53151
Telephone: (262) 785-9606
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