(414) 276-2850

FMLA Update: 7th Circuit Rules in Favor of Employee, By Barbara Halpin

Posted by Attorney Roger L. Pettit in Employer-Employee Relationship, Human Resources / Comments

On August 9th, the 7th Circuit in Pagel v. TIN, Inc. overturned the district court’s granting of summary judgment for an employer in an FMLA leave case which now enables the employee to take it to trial.  The Plaintiff, Pagel, claimed that his employer violated the FMLA by interfering with his right to take leave under the Act and then retaliated against him for taking the leave.

Pagel, a salesman for TIN, suffered from a heart condition in August of 2006 that required him to take leave under the FMLA and he gave his employer notice.  In October 2006 he was terminated, allegedly, for poor performance relating to a hastily-scheduled ride along with his supervisor.  Normally employees were given a week’s notice to set up customer appointments but Pagel was given one day and needless to say, the ride along went poorly.

Pagel filed a claim for interference and retaliation.  The district court granted summary judgment for TIN, stating that Pagel was indeed terminated for poor performance and Pagel appealed to the 7th Circuit.

The FMLA, under 29 U.S.C. § 2612(a)(1)(D), provides certain employees suffering from a serious medical conditions up to 12 weeks of unpaid leave during a 12 month period.  Employers cannot interfer with an employee’s decision to take the leave (through denial of leave) or retaliate against employees for taking the leave.

The Court wrote that (1) Pagel was entitled to the leave because the condition prevented him from performing the “essential functions” of the job; (2) he proved that he gave his employer sufficient notice of the leave and (3) Pagel raised enough facts to suggest that TIN interfered with his right to take leave because, among other issues, TIN did not “make reasonable adjustment to its employment expectations to account for his FMLA-protected leave” and then terminated him when he failed to reach the unadjusted expectations.

Concerning the retaliation claim, the court wrote that a plaintiff must show that (1) he engaged in a protected activity; (2) his employer took an adverse employment action against him; and (3) there is a causal connection between the protected activity and the adverse employment action.  The court agreed with Pagel’s argument that TIN’s “claim of poor performance was mere pretext” and that while poor performance may be the reason for his termination, material issues of fact remain and summary judgment in favor of TIN was improper.  For the complete opinion click here.



Attorney Roger L. Pettit
Attorney Roger L. Pettit

© Copyright 2017 Petrie & Pettit S.C. All Rights reserved