Salvatore Ziccarelli v. Thomas Dart

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-3435

SALVATORE ZICCARELLI,

Plaintiff-Appellant,

v.

THOMAS J. DART, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:17-cv-03179 — Ronald A. Guzmán, Judge.

____________________

ARGUED OCTOBER 28, 2021 — DECIDED JUNE 1, 2022

____________________

Before RIPPLE, HAMILTON, and SCUDDER, Circuit Judges.

HAMILTON, Circuit Judge. Plaintiff-appellant Salvatore

Ziccarelli worked for the Cook County Sheriff’s Office for

twenty-seven years. During those years, he periodically took

leave under the Family and Medical Leave Act of 1993

(“FMLA” or “Act”), 29 U.S.C. § 2601 et seq. In September 2016,

Ziccarelli called the Sheriff’s Office’s FMLA manager, defend-

ant Wylola Shinnawi, to discuss taking more FMLA leave.

Based on the contents of that conversation—which are hotly

2 No. 19-3435

disputed—Ziccarelli says he decided to retire from the Sher-

iff’s Office on September 20, 2016.

Ziccarelli then filed this suit against Sheriff Thomas Dart,

Shinnawi, and Cook County (together, “the Sheriff’s Office”)

alleging violations of his rights under Title VII of the Civil

Rights Act of 1964, the Age Discrimination in Employment

Act of 1967, the Americans with Disabilities Act of 1990, and

the FMLA. He also seeks indemnification of the other defend-

ants from Cook County. After discovery, the district court

granted the Sheriff’s Office’s motion for summary judgment

on all claims. Ziccarelli has appealed summary judgment as

to only his FMLA claims.

On appeal, Ziccarelli argues that a reasonable jury could

find that the Sheriff’s Office interfered with his FMLA rights

during his conversation with Shinnawi in violation of 29

U.S.C. § 2615(a)(1) by discouraging him from using leave.

Ziccarelli also argues that he can survive summary judgment

on his claim that the Sheriff’s Office constructively discharged

him to retaliate against him for calling Shinnawi to discuss

using more FMLA leave, in violation of § 2615(a)(2).

We affirm in part and reverse in part. We begin with plain-

tiff’s interference claim to clarify this court’s interpretation of

§ 2615(a)(1), and we then apply that provision to this case. We

conclude that plaintiff presented sufficient evidence to defeat

summary judgment on his claim of FMLA interference

through alleged discouragement. We hope this opinion will

help clarify that an employer can violate the FMLA by dis-

couraging an employee from exercising rights under the

FMLA without actually denying an FMLA leave request. We

No. 19-3435 3

affirm summary judgment for the Sheriff’s Office on plaintiff’s

retaliation claim. 1

I. Facts for Summary Judgment

Plaintiff Ziccarelli began working for the Cook County

Sheriff’s Office as a corrections officer in 1989. He was fired

after he provided character testimony for a defendant during

a death penalty hearing. He was reinstated after a district

court found that the Sheriff’s Office had violated his First

Amendment rights. Ziccarelli v. Leake, 767 F. Supp. 1450, 1458–

59 (N.D. Ill. 1991).

During his career, plaintiff developed several serious

health conditions for which he requested and received per-

mission to take leave under the FMLA. From 2007 through

early 2016, plaintiff used between 10 and 169 hours of FMLA

leave per year. In July 2016 he sought treatment from a psy-

chiatrist for his work-related post-traumatic stress disorder

(PTSD), and by September he had used 304 hours of his al-

lowable 480 hours of FMLA leave for 2016. On the advice of a

doctor, plaintiff then decided that he should apply for perma-

nent disability benefits. To do so, he needed to exhaust all his

earned sick leave.

On his doctor’s recommendation, plaintiff planned to use

some of his available sick leave and annual leave to enroll in

an eight-week treatment program to address his PTSD. In

September 2016, plaintiff Ziccarelli called defendant

1 Ziccarelli originally pursued his appeal pro se. After reviewing the

parties’ briefs, we recruited counsel for Ziccarelli (the Georgetown Uni-

versity Law Center’s Appellate Courts Immersion Clinic under the super-

vision of Professor Brian Wolfman) and ordered a new round of briefing.

We thank counsel for their capable assistance to the court and their client.

4 No. 19-3435

Shinnawi to discuss the possibility of using a combination of

FMLA leave, sick leave, and annual leave for his treatment

program. Shinnawi was authorized to approve or deny use of

FMLA benefits, but she did not have direct access to sick leave

information for Sheriff’s Office employees. She also could not

approve or deny use of sick leave or annual leave.

Ziccarelli’s and Shinnawi’s accounts of their conversation

differ starkly. In reviewing a grant of summary judgment, we

must credit Ziccarelli’s, leaving material factual disputes for

a jury.

Ziccarelli testified that he called Shinnawi and told her he

needed to use more FMLA leave so he could seek treatment.

In his account, Shinnawi responded by saying “you’ve taken

serious amounts of FMLA …. don’t take any more FMLA. If

you do so, you will be disciplined.” Ziccarelli Dep. 42. In his

deposition, Ziccarelli testified that he never told Shinnawi

how much FMLA leave he sought to use and that he told her

only that he needed to use more FMLA leave. He even cor-

rected counsel on this point:

Q. That she told you that you could be disci-

plined if you took unauthorized—

A. You will be disciplined.

Q. —if you took unauthorized FMLA?

A. More FMLA. More FMLA.

Id. at 53.

In plaintiff’s account, Shinnawi never explained what dis-

cipline he might be subject to for taking more FMLA leave,

but based on his past experience with the department, he

feared that he would be fired. Plaintiff retired from the

No. 19-3435 5

department shortly after speaking with Shinnawi, effective on

September 20, 2016. Plaintiff did not take leave and was not

disciplined before he departed.2

II. District Court Proceedings

Shortly after he retired, plaintiff exhausted administrative

remedies and then filed a complaint in the district court

against Sheriff Thomas Dart, Shinnawi, and Cook County

claiming violations of his rights under the FMLA and other

statutes and seeking indemnification from the county on these

claims.

The district court granted the defendants’ motion for sum-

mary judgment on all claims. On the FMLA claims, the court

found that plaintiff’s retaliation claim failed because he did

not offer evidence of an adverse employment action, and his

2 Shinnawi recalled this conversation very differently. According to

her testimony, plaintiff “requested a leave of several months, and at that

point I told him he did not have enough FMLA hours left for that time

period.” Shinnawi Dep. 17–18. She did not consider whether he had other

forms of leave available to use, such as disability or sick leave, and she did

not remember whether he asked to use it. Shinnawi recalled that plaintiff

wanted to know if he would “get in trouble,” and she explained in her

deposition that “if he used FMLA that he did not have, it would be coded

unauthorized, and then attendance review would handle it moving for-

ward.” Shinnawi Dep. 19. Attendance Review is the unit that processes

and tracks discipline for attendance infractions within the Sheriff’s Office.

When plaintiff asked if that meant he would be fired, she told him “that’s

attendance review,” and “I cannot give you FMLA hours that you don’t

have.” Shinnawi Dep. 20. According to Shinnawi, she said nothing else to

Ziccarelli about potential discipline. If Shinnawi’s version is correct, we

could not see a viable FMLA claim. We emphasize, however, that because

the defendants chose to move for summary judgment, we must discount

Shinnawi’s testimony and credit plaintiff’s on these disputed factual is-

sues.

6 No. 19-3435

interference claim failed because he did not show an actual

denial of FMLA benefits. Plaintiff Ziccarelli appeals the

court’s grant of summary judgment on only his FMLA claims.

III. Standard of Review and Legal Framework

We review a district court’s grant of summary judgment

de novo, giving plaintiff as the non-moving party the benefit

of conflicting evidence and any favorable inferences that

might be reasonably drawn from the evidence. Lane v. River-

view Hospital, 835 F.3d 691, 694 (7th Cir. 2016). Summary judg-

ment is appropriate where there is no genuine dispute of ma-

terial fact and the movant is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247 (1986).

We pause briefly to remind the parties of their obligations

with respect to the facts at the summary judgment stage. The

Sheriff’s Office attempts to argue there is no genuine dispute

of material fact, but in doing so it relies on Shinnawi’s version

of her key conversation with Ziccarelli, even though Ziccarelli

directly contradicted her version in his deposition testimony.

See Appellees’ Br. at 12–13. Our precedent demands more of

the moving party at summary judgment. See, e.g., Stewart v.

Wexford Health Sources, Inc., 14 F.4th 757, 760 (7th Cir. 2021)

(discouraging moving party from presenting facts with a

“loose allegiance” to the summary judgment standard); Malin

v. Hospira, Inc., 762 F.3d 552, 564–65 (7th Cir. 2014) (reversing

summary judgment and criticizing moving party for ignoring

conflicting evidence); Payne v. Pauley, 337 F.3d 767, 770–73 (7th

Cir. 2003) (reversing summary judgment and explaining that

both the moving and non-moving parties may rely on “self-

serving” testimony); see generally Anderson, 477 U.S. at 255

(“Credibility determinations, the weighing of the evidence,

No. 19-3435 7

and the drawing of legitimate inferences from the facts are

jury functions, not those of a judge, whether he is ruling on a

motion for summary judgment or for a directed verdict.”).

Even if a judge might believe a moving party has more and/or

better evidence in its favor, a motion for summary judgment

does not authorize or invite the judge to weigh evidence and

decide whose story is more credible or persuasive. As noted,

we must consider the evidence in the light most favorable to

the party opposing summary judgment, drawing all reasona-

ble inferences in that party’s favor. Anderson, 477 U.S. at 255;

Stewart, 14 F.4th at 760.

We turn now to the statutory framework. The FMLA was

designed “to balance the demands of the workplace with the

needs of families” while guaranteeing workers reasonable ac-

cess to medical leave “in a manner that accommodates the le-

gitimate interests of employers.” 29 U.S.C. § 2601(b)(1)–(3). To

that end, the FMLA grants eligible employees up to 12 work-

weeks of unpaid leave (480 hours) per year for medical and

family reasons. See § 2612(a)(1) & (c). An eligible employee is

entitled to restoration to the same or equivalent job and bene-

fits when the leave ends, and to continuation of health insur-

ance during leave. § 2614(a)(1) & (c)(1).

To protect these rights, the FMLA prohibits covered em-

ployers from (i) interfering with, restraining, or denying the

exercise of FMLA rights; and (ii) discriminating or retaliating

against employees for exercising FMLA rights. See

§ 2615(a)(1) & (a)(2). The FMLA also grants employees a right

of action to recover damages for violations of these provi-

sions. § 2617(a)(2).

On appeal, plaintiff Ziccarelli makes two distinct claims

under the FMLA. First, he claims interference with his FMLA

8 No. 19-3435

rights under § 2615(a)(1) on the theory that he was discour-

aged from taking FMLA leave he was entitled to take. Second,

he claims retaliation against him in violation of § 2615(a)(2)

on the theory that the Sheriff’s Office constructively dis-

charged him. We consider his interference claim first, which

poses an issue of statutory construction that prompted us to

recruit counsel for plaintiff. Applying the correct interpreta-

tion of the statute, we reverse the district court’s grant of sum-

mary judgment based on the unlawful discouragement the-

ory of FMLA interference. We then explain why we affirm

summary judgment for defendants on plaintiff’s constructive

discharge theory of retaliation. 3

IV. FMLA Interference

The FMLA provides that an employer may not “interfere

with, restrain, or deny the exercise of or the attempt to

3 On appeal, Ziccarelli also argues that the Sheriff’s Office interfered

with his FMLA benefits in violation of § 2615(a)(1) by failing to inform him

whether his requested leave would qualify under the FMLA and by failing

to answer his questions about use of leave and possible punishment. As

defendants note, Ziccarelli did not raise this theory in the district court.

Ziccarelli responds by arguing that the Sheriff’s Office waived this “po-

tential forfeiture” argument so that “this Court ‘must treat the issue on the

merits.’” Reply Br. at 4 n.1, quoting Geva v. Leo Burnett Co., 931 F.2d 1220,

1225 (7th Cir. 1991). We think the late Judge Cudahy would be surprised

to learn his opinion in Geva had such a sweeping effect on the law of for-

feiture and waiver. We reject this remarkable claim. Ziccarelli never pre-

sented this theory of FMLA interference to the district court. He waived

this argument and we do not consider it. See Markel Insurance Co. v. Rau,

954 F.3d 1012, 1018 (7th Cir. 2020) (defendant’s “first problem is that she

did not make this argument before the district court, and so she may not

raise it now for the first time on appeal”); Stevens v. Umsted, 131 F.3d 697,

705 (7th Cir. 1997) (“It is axiomatic that arguments not raised below are

waived on appeal.”).

No. 19-3435 9

exercise, any right provided under” the Act. 29 U.S.C.

§ 2615(a)(1). Our cases have identified five elements for an

FMLA interference claim. The first four elements require the

plaintiff to show that: (i) the employee was eligible for FMLA

protections; (ii) the employer was covered by the FMLA; (iii)

the employee was entitled to leave under the FMLA; and (iv)

the employee provided sufficient notice of intent to take

FMLA leave. Lutes v. United Trailers, Inc., 950 F.3d 359, 363 (7th

Cir. 2020); Preddie v. Bartholomew Consolidated School Corp., 799

F.3d 806, 816 (7th Cir. 2015). For the fifth element, our opin-

ions have used varying language that has led to some confu-

sion. Some cases have said the employee must show that “his

employer denied him FMLA benefits to which he was enti-

tled,” e.g., Lutes, 950 F.3d at 363, while others have said that

the employee must show that “his employer denied or inter-

fered with FMLA benefits to which he was entitled.” E.g.,

Preddie, 799 F.3d at 816 (cleaned up). If a plaintiff shows a vi-

olation of § 2615(a)(1), winning relief requires the plaintiff to

show “prejudice,” meaning harm resulting from the violation.

29 U.S.C. § 2617(a); Lutes, 950 F.3d at 368, citing Ragsdale v.

Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002).

The first four elements of interference are uncontested

here, so this appeal focuses on the fifth element and whether

Ziccarelli can show prejudice. We must interpret § 2615(a)(1)

to resolve the parties’ dispute over how to formulate the fifth

element of the test for FMLA interference. The text of

§ 2615(a)(1) makes clear that a violation does not require ac-

tual denial of FMLA benefits. This understanding of the stat-

ute does not conflict with the relevant case law in this or other

circuits. Any apparent contradictions prove illusory on closer

inspection. We then apply this interpretation to this case.

10 No. 19-3435

A. Denial Not Required to Violate § 2615(a)(1)

Section 2615(a)(1) makes it unlawful for a covered em-

ployer to “interfere with, restrain, or deny” an eligible em-

ployee’s exercise or attempt to exercise FMLA rights. The

Sheriff’s Office urges us to interpret § 2615(a)(1) to require a

plaintiff to show he was actually denied FMLA rights to meet

the fifth prong of the test for FMLA interference. We disagree.

1. Statutory Text and Context

The statutory text and context favor a reading that inter-

ference with, or restraint of FMLA rights can violate

§ 2615(a)(1), without proof of an actual denial, for at least four

reasons. First, the three verbs in § 2615(a)(1) are listed disjunc-

tively. They are not coextensive, and there is no indication

that all three were included in § 2615(a)(1) for the sake of re-

dundant emphasis. Second, § 2615(a)(1) protects “the attempt

to exercise” FMLA rights, which would make little sense if ac-

tual denial were required. Third, reading § 2615(a)(1) to per-

mit the array of activities that prejudice but do not deny

FMLA rights would undermine the FMLA’s guarantees of

family and medical leave to eligible employees and their fam-

ilies. Finally, Department of Labor regulations implementing

the FMLA provide additional persuasive evidence support-

ing the plain-language interpretation of these provisions. We

discuss each point in turn.

First, the use of the disjunctive “or” in § 2615(a)(1) signals

that interference or restraint without denial is sufficient to vi-

olate the statute, and that requiring denial would turn “inter-

fere with, restrain, or” into surplusage. See Encino Motorcars,

LLC v. Navarro, — U.S. —, 138 S. Ct. 1134, 1141 (2018) (noting

that “‘or’ is ‘almost always disjunctive’” (internal citation

No. 19-3435 11

omitted)). By itself the point is not necessarily decisive. See,

e.g., Reid Hospital and Health Care Services, Inc. v. Conifer Reve-

nue Cycle Solutions, LLC, 8 F.4th 642, 652 (7th Cir. 2021) (dis-

cussing limit of anti-surplusage canon for contracts and stat-

utes). It is well recognized that the anti-surplusage canon has

limits and that statutory drafters often take a “belt-and-sus-

penders approach” to ensure that the statutory language cap-

tures the intended universe, sometimes producing texts that

emphasize redundance over brevity. Id. (collecting authori-

ties). The anti-surplusage canon alone does not resolve the

question before us, but its application to § 2615(a)(1) points in

the same direction as the other textual evidence.

For example, the activities prohibited by § 2615(a)(1) are

related but are not so similar that their appearance together

indicates redundance. Each adds to the scope of the prohibi-

tion. When employers refuse to grant or accept proper FMLA

requests, they deny access within the meaning of the Act.

Such a denial also acts (i) as a form of interference (by checking

or hampering FMLA access); and (ii) as a restraint (by limiting

FMLA access). But the reverse is not necessarily true. An em-

ployer can interfere with or restrain rights under the FMLA

without explicitly denying a leave request.4

4 The edition of Black’s Law Dictionary current when the FMLA was

passed in 1993 defined these terms as follows:

Deny. To traverse. To give negative answer or reply to. To refuse

to grant or accept. To refuse to grant a petition or protest.

Interfere. To check; hamper; hinder; infringe; encroach; trespass;

disturb; intervene; intermeddle; interpose. To enter into, or take

part in, the concerns of others.

Restrain. To limit, confine, abridge, narrow down, restrict, ob-

struct, impede, hinder, stay, destroy. To prohibit from action; to

12 No. 19-3435

For example, an employer that implements a burdensome

approval process or discourages employees from requesting

FMLA leave could interfere with and restrain access without

denying many requests because few requests requiring a for-

mal decision would ever be made. By including the trio of

verbs in § 2615(a)(1) in a disjunctive clause, Congress enacted

statutory language that strongly suggests that interfering, re-

straining, and denying are distinct ways of violating the

FMLA.

Second, § 2615(a)(1) also protects “the attempt to exercise”

FMLA rights. Suppose that an electrician meets with her em-

ployer and seeks medical leave information, intending to ex-

ercise FMLA rights. This likely qualifies as an attempt to ex-

ercise benefits under the Act even if the electrician does not

specifically invoke the FMLA. Preddie, 799 F.3d at 816 (“The

notice requirements of the FMLA are not onerous. An em-

ployee need not expressly mention the FMLA in his leave re-

quest or otherwise invoke any of its provisions.”), quoting

Burnett v. LFW Inc., 472 F.3d 471, 478 (7th Cir. 2006). Are we to

read § 2615(a)(1) so that no violation can take place until the

employer refuses to grant an actual FMLA request from the

electrician? If so, then the electrician might not be protected

during the initial phase of preparing and formulating an

FMLA request.

put compulsion upon; to restrict; to hold or press back. To keep in

check; to hold back from acting, proceeding, or advancing, either

by physical or moral force, or by interposing obstacle; to repress

or suppress; to curb. To restrict a person’s movements in such

manner as to interfere substantially with his liberty.

Deny, Interfere, Restrain, Black’s Law Dictionary (6th ed. 1990) (internal ci-

tations removed).

No. 19-3435 13

Under this view, an employer that wanted to prevent

FMLA use would have many options that would stop short of

denying a claim, such as not providing basic FMLA infor-

mation to an employee unaware of his rights, or orally dis-

couraging FMLA use before the employee actually requested

leave. This would be a strange result and would conflict with

this court’s precedents under the Act. See, e.g., Lutes, 950 F.3d

at 362–63, 369 (reversing summary judgment against metal

worker on FMLA interference claim when he was fired for

staying home to recover from injury while unaware he may

have qualified for FMLA); Preddie, 799 F.3d at 818, 821 (revers-

ing summary judgment against teacher on FMLA interference

claim when principal told him that missing additional time

would have consequences). As applied to the issue of denial,

the text of § 2615(a)(1) is not ambiguous. For the Act to protect

“the exercise of or the attempt to exercise” FMLA rights, it

must be read so that an interference or restraint without ac-

tual denial is still a violation.

Third, reading the Act to permit employers to interfere

with or restrain the use of FMLA rights as long as no unlawful

denial occurs would conflict with and undermine the rights

granted. 29 U.S.C. §§ 2601(b)(1) & (b)(2); 2617. Rights under

the Act would be significantly diminished if it permitted em-

ployers to actively discourage employees from taking steps to

access FMLA benefits or otherwise to interfere with or re-

strain such access. The Act was designed to accommodate

“the legitimate interests of employers,” § 2601(b)(3) (emphasis

added), but we see no legitimate interest for employers in im-

peding access to FMLA benefits by subterfuge, concealment,

or intimidation.

14 No. 19-3435

Finally, Department of Labor regulations implementing

the FMLA also support this interpretation:

(a) The FMLA prohibits interference with an em-

ployee’s rights under the law, and with legal

proceedings or inquiries relating to an em-

ployee’s rights. …

(b) Any violations of the Act or of these regula-

tions constitute interfering with, restraining,

or denying the exercise of rights provided by

the Act. … Interfering with the exercise of an

employee’s rights would include, for exam-

ple, not only refusing to authorize FMLA

leave, but discouraging an employee from using

such leave.

See 29 C.F.R. § 825.220(a)–(b) (emphasis added).

Section 2615(a)(1) is not ambiguous about whether denial

is required to show a violation, so Chevron deference does not

apply here. See Planned Parenthood of Indiana, Inc. v. Commis-

sioner of Indiana State Dept. of Health, 699 F.3d 962, 980 (7th Cir.

2012) (“In the absence of ambiguity, Chevron deference does

not come into play.”), citing Chevron, U.S.A., Inc. v. Natural Re-

sources Defense Council, Inc., 467 U.S. 837 (1984). But the FMLA

vests the Secretary of Labor with broad authority to issue reg-

ulations implementing the FMLA, and his regulatory inter-

pretation is further persuasive evidence that the best reading

of § 2615(a)(1) is that actual denial is not required. 29 U.S.C

§ 2654. 5

5 At this court’s invitation, the Department of Labor submitted an ami-

cus brief on the question whether “a plaintiff pursuing a claim of interfer-

ence with rights under the Family and Medical Leave Act, 29 U.S.C.

No. 19-3435 15

2. Case Law on FMLA Interference

Despite the broader statutory language, opinions of this

court and others have sometimes phrased the test for FMLA

interference in terms that seem to require an actual denial of

benefits. See, e.g., Lutes, 950 F.3d at 363 (“his employer denied

him FMLA benefits to which he was entitled”); Guzman v.

Brown County, 884 F.3d 633, 638 (7th Cir. 2018) (“her employer

denied her FMLA benefits to which she was entitled”); Thomp-

son v. Kanabec County, 958 F.3d 698, 705 (8th Cir. 2020) (requir-

ing plaintiff to show “the reason for the denial was connected

to the employee’s FMLA leave”). But judicial opinions are not

statutes. Treating them as if they were is “a common source

of erroneous predictions concerning the scope and direction

of the law.” All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862,

866 (7th Cir. 1999). There have been variations in how to word

the test for FMLA interference, but there is no genuine intra-

or inter-circuit split on whether denial is essential and

whether the requirement that plaintiff show prejudice pre-

cludes claims based on interference alone. 6

§ 2615(a), must present evidence that the employer ‘denied’ FMLA bene-

fits to which the plaintiff was entitled, or merely ‘interfered with’ those

benefits.” We thank the department for its views.

6 Our interpretation of § 2615(a)(1) is consistent with other circuits’

decisions, albeit sometimes via non-precedential opinions or in dicta. See,

e.g., Diamond v. Hospice of Florida Keys, Inc., 677 F. App’x 586, 593 (11th Cir.

2017) (plaintiff offered enough evidence for jury to conclude employer vi-

olated § 2615(a)(1) by “discouraging her from taking FMLA leave in order

to care for her seriously ill parents”); Hurtt v. Int’l Services, Inc., 627 F.

App’x 414, 424 (6th Cir. 2015) (stating five-part FMLA interference test in

terms of denial of benefits, but concluding that FMLA interference in-

cludes “discouraging an employee from using FMLA leave” (cleaned up));

Quinn v. St. Louis County, 653 F.3d 745, 753 (8th Cir. 2011) (noting in dicta

16 No. 19-3435

The only time this court squarely confronted whether

FMLA interference requires actual denial of benefits, we said

no. In Preddie this court determined that § 2615(a)(1) allows

FMLA interference claims based on discouragement. 799 F.3d

at 818 (noting that interference includes “discouraging an em-

ployee from using” FMLA leave (internal citation omitted)).

In Preddie, a teacher took time off to care for his son, who suf-

fered serious episodic side effects from sickle cell anemia. Id.

at 810. The teacher never actually applied for FMLA leave, so

we considered whether § 2615(a)(1) required denial and de-

cided that it did not. Id. at 811, 818. We reversed summary

judgment, finding that the evidence could allow a reasonable

jury to find that the school interfered with the teacher’s FMLA

rights by discouraging and threatening him. Id. at 818. We also

noted that a jury could find the teacher was injured by the

school’s discouragement because he showed evidence that he

consciously chose not to take additional leave based on the

principal’s threats. Id.

Other opinions by this court appear to conflict with our

view and Preddie, but those concerns dissipate on closer

that “FMLA interference includes not only refusing to authorize FMLA

leave, but discouraging an employee from using such leave” (internal

quotes and citation omitted)); McFadden v. Ballard Spahr Andrews & Inger-

soll, LLP, 611 F.3d 1, 7 (D.C. Cir. 2010) (noting that plaintiff could succeed

in her FMLA interference claim without showing her employer denied

leave request as long as she showed interference with exercise of her

FMLA rights and prejudice from violation); Stallings v. Hussmann Corp.,

447 F.3d 1041, 1050 (8th Cir. 2006) (citing 29 C.F.R. § 825.220(b) for idea

that FMLA interference can include discouragement, but not relying on

this theory); Liu v. Amway Corp., 347 F.3d 1125, 1133–34 (9th Cir. 2003) (re-

versing summary judgment in part; pressuring employee to reduce leave

time violated FMLA interference provision).

No. 19-3435 17

inspection. We said in Lutes that a plaintiff must show “his

employer denied him FMLA benefits to which he was enti-

tled,” but our legal analysis did not focus on denial. 950 F.3d

at 363. Instead, we determined that the metal worker could

survive summary judgment on remand if he could show “that

he would have structured his leave differently had he re-

ceived the proper information.” Id. at 368, citing Ragsdale, 535

U.S. at 90.

Similarly, in Guzman we affirmed summary judgment

against a plaintiff’s FMLA interference claim because she was

not “denied FMLA benefits to which she was entitled,” but

the precise phrasing of the fifth part of the test for FMLA in-

terference did not matter to the result. 884 F.3d at 640. The

employee’s claim failed because (i) she could not show a seri-

ous health condition and was not eligible for FMLA protec-

tions; and (ii) her employer decided to terminate her before

she gave notice of an attempt to exercise FMLA rights. Id. at

639–40, citing Cracco v. Vitran Express, Inc., 559 F.3d 625, 636

(7th Cir. 2009) (affirming summary judgment against an

FMLA interference claim when employee failed to show he

would have kept his job if he had not taken FMLA leave).

Thus, we see no genuine intra-circuit split on whether a vio-

lation of § 2615(a)(1) requires actual denial of benefits.

The Sheriff’s Office argues that we should follow the ap-

proach of the Eighth Circuit and read § 2615(a)(1) to require

denial because the plaintiff must “connect the FMLA request

with a concrete negative job consequence.” Appellees’ Br. at

9, citing Thompson, 958 F.3d at 705–06. The Sheriff’s Office is

correct that a violation of the FMLA on its own is not enough

to establish an interference claim—a plaintiff must also show

that the violation prejudiced him. Lutes, 950 F.3d at 368, citing

18 No. 19-3435

Ragsdale, 535 U.S. at 89. But this prejudice question is used to

decide whether § 2617 provides relief for a proven violation.

It does not set the threshold for what constitutes a violation of

§ 2615(a)(1) in the first place. See Ragsdale, 535 U.S. at 89.

The best reading of Thompson and similar cases is that they

focus on whether the employee suffered prejudice from the

employer’s actions. They do not stand for the proposition that

plaintiffs who show interference without denial of FMLA

rights cannot recover under the FMLA. See Thompson, 958

F.3d at 706 (affirming summary judgment against nurse’s

FMLA interference claim when she could not show prejudice

from an acknowledged delay in processing FMLA request);

see also Fraternal Order of Police, Lodge 1 v. City of Camden, 842

F.3d 231, 246 (3d Cir. 2016) (affirming summary judgment

against police officer’s FMLA interference claim in part be-

cause he took the leave to which he was entitled and failed to

show prejudice).

Accordingly, we conclude there is no intra- or inter-circuit

split on whether interference with FMLA rights without ac-

tual denial can violate § 2615(a)(1). Section 2615(a)(1) is not

ambiguous on this issue—denial of FMLA benefits is not re-

quired to demonstrate an FMLA interference violation. Inter-

ference or restraint alone is enough to establish a violation,

and a remedy is available under § 2617 if the plaintiff can

show prejudice from the violation.

B. Interference with Ziccarelli’s Attempt to Exercise FMLA

Rights

Accordingly, to show an FMLA interference violation un-

der § 2615(a)(1), Ziccarelli must show that: (i) he was eligible

for FMLA protections; (ii) the Sheriff’s Office was covered by

No. 19-3435 19

the FMLA; (iii) he was entitled to leave under the FMLA; (iv)

he provided sufficient notice of his intent to take leave; and

(v) the Sheriff’s Office interfered with, restrained, or denied

FMLA benefits to which he was entitled. See 29 U.S.C.

§ 2615(a)(1); Preddie, 799 F.3d at 816. To recover for a violation

of § 2615(a)(1), Ziccarelli must also show he was prejudiced

by the unlawful actions of the Sheriff’s Office. § 2617(a); Lutes,

950 F.3d at 368, citing Ragsdale, 535 U.S. at 89.

Only the fifth element of the test for FMLA interference

and prejudice are at issue in this appeal. Giving plaintiff the

benefit of conflicts in the evidence and reasonable favorable

inferences, he has presented a genuine issue of material fact

as to whether the Sheriff’s Office violated § 2615(a)(1) when

Shinnawi allegedly discouraged him from taking leave and as

to whether these actions prejudiced him.

Ziccarelli had over one month of FMLA leave available

when he called Shinnawi in September 2016 to request FMLA

leave. According to Ziccarelli, though, when he asked to take

“more” FMLA leave, Shinnawi responded by saying “don’t

take any more FMLA. If you do so, you will be disciplined.”

Ziccarelli’s Dep. 42.

As noted, Shinnawi’s testimony is very different, but de-

termining which story is more credible is a job for the trier of

fact. “[S]ummary judgment cannot be used to resolve swear-

ing contests between litigants.” Johnson v. Advocate Health &

Hospitals Corp., 892 F.3d 887, 893 (7th Cir. 2018) (internal cita-

tion and quotation marks omitted); see also Goelzer v. She-

boygan County, 604 F.3d 987, 995 (7th Cir. 2010) (summary

judgment on FMLA interference claim inappropriate where

“we are left with two competing accounts, either of which a

jury could believe”). We are required to give Ziccarelli the

20 No. 19-3435

benefit of conflicting evidence about the substance of his con-

versation with Shinnawi. Lane, 835 F.3d at 694.

Threatening to discipline an employee for seeking or using

FMLA leave to which he is entitled clearly qualifies as inter-

ference with FMLA rights. See Preddie, 799 F.3d at 818. A rea-

sonable jury could believe Ziccarelli’s account and find that

the Sheriff’s Office (through Shinnawi) interfered with his re-

maining FMLA leave hours for 2016 by threatening to disci-

pline him for using them. See id. (deciding jury could con-

clude school interfered with teacher’s FMLA rights when

principal threatened consequences for using more FMLA

leave). There is a triable issue of fact as to whether Ziccarelli

can meet the fifth element of the test for FMLA interference.

The Sheriff’s Office claims that it did not interfere with

Ziccarelli’s access to FMLA leave because “[n]othing in the

record indicates that Plaintiff was prohibited from using his

remaining FMLA time that he had previously been approved

to take.” Appellees’ Br. at 13. As explained above, denial is not

the only way that an employer can violate § 2615(a)(1). It is

enough that Ziccarelli presents evidence allowing a reasona-

ble jury to conclude that the Sheriff’s Office discouraged him

from exercising his FMLA rights. See Preddie, 799 F.3d at 818.

There is also evidence in the record that Shinnawi’s state-

ments prejudiced Ziccarelli by affecting his decisions about

FMLA leave. Ziccarelli had planned to use some of his re-

maining FMLA leave to seek treatment. After their conversa-

tion, Ziccarelli never submitted an FMLA request and did not

use the remainder of his 2016 FMLA leave. Ziccarelli claims

he was afraid of what would happen after Shinnawi threat-

ened him with discipline for taking more FMLA leave.

No. 19-3435 21

Evidence of a link between Shinnawi’s alleged discourage-

ment and Ziccarelli’s decision not to take his remaining

FMLA leave for 2016 is sufficient to require a trial. A reasona-

ble jury that believed Ziccarelli’s account could find that the

Sheriff’s Office violated § 2615(a)(1) and that the violation

prejudiced Ziccarelli’s access to his remaining FMLA leave

hours for 2016. See Lutes, 950 F.3d at 368.

One feature of this case makes the prejudice analysis for

plaintiff’s interference claim more complicated: his decision

to retire from the Sheriff’s Office shortly after his conversation

with Shinnawi. As we explain below, even plaintiff’s version

of that conversation falls far short of evidence that could sup-

port a claim for constructive discharge. Plaintiff knew that he

had some remaining FMLA leave, sick leave, and annual

leave available for 2016. He also knew that Shinnawi was the

FMLA specialist, and she had said nothing to address his use

of sick leave that he says he wanted to use up, along with

FMLA leave, to take the eight weeks of leave for the treatment

program his doctor recommended. We do not see how an em-

ployee in plaintiff’s situation could reasonably just give up

and walk away from his job, benefits, and treatment plan en-

tirely based on one conversation in which, under his version

of the facts, the employer’s representative was simply wrong.

The district court may have its hands full on remand, par-

ticularly if plaintiff tries to blame snowballing consequences,

including even early retirement, on his conversation with

Shinnawi. As skeptical as we might be about those efforts, we

believe those issues need to be sorted out in the district court

in the first instance.

22 No. 19-3435

V. FMLA Retaliation

The FMLA makes it “unlawful for any employer to dis-

charge or in any other manner discriminate against any indi-

vidual for opposing any practice made unlawful by” the Act.

29 U.S.C. § 2615(a)(2). We analyze § 2615(a)(2) discrimination

claims using the same framework we use for retaliation

claims under other federal labor and employment laws, such

as Title VII of the Civil Rights Act of 1964 and the Americans

with Disabilities Act of 1990. See Freelain v. Village of Oak Park,

888 F.3d 895, 900–01 (7th Cir. 2018), citing Buie v.

Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004). Construc-

tive discharge is one form of FMLA retaliation, and it can take

place when working conditions become objectively unbeara-

ble from the viewpoint of a reasonable employee. Wright v.

Illinois Department of Children & Family Services, 798 F.3d 513,

527 (7th Cir. 2015), citing Chapin v. Fort-Rohr Motors, Inc., 621

F.3d 673, 679 (7th Cir. 2010).

We recognize two general theories of constructive dis-

charge. Under the first, a plaintiff resigns due to discrimina-

tory harassment and must “show working conditions even

more egregious than that required for a hostile work environ-

ment claim.” Id., quoting Chapin, 621 F.3d at 679. Based on its

assessment of Ziccarelli’s claim of constructive discharge un-

der this first theory, the district court granted summary judg-

ment to the Sheriff’s Office. On appeal Ziccarelli argues that

he can overcome summary judgment under the second the-

ory, that constructive discharge “occurs ‘[w]hen an employer

acts in a manner so as to have communicated to a reasonable

employee that she will be terminated.’” Id., quoting Chapin,

621 F.3d at 679.

No. 19-3435 23

To prevail under the second theory of constructive dis-

charge, a plaintiff must show “that her working conditions

had become intolerable.” Wright, 798 F.3d at 528, citing Cha-

pin, 621 F.3d at 679. Working conditions become intolerable

“when the employer’s actions communicate to the employee

that she immediately and unavoidably will be terminated.”

Id. at 528–29. Ziccarelli claims that he meets this standard on

the theory that his conversation with Shinnawi communi-

cated to him that he would be discharged “if he took any

FMLA leave, even leave to which he was entitled.” Appel-

lant’s Br. at 24. We do not agree with his theory.

Ziccarelli argues that under Chapin an employee has “am-

ple reason to believe his termination to be imminent” when

he receives a threat from his employer that is “very clearly

tied” to protected activity. Appellant’s Br. at 24, quoting Cha-

pin, 621 F.3d at 680. This language from Chapin does not sup-

port the weight Ziccarelli places on it. In Chapin, after an ini-

tial threatening conversation, the plaintiff’s employer

changed tack and attempted to reconcile. Chapin, 621 F.3d at

680. We determined that no reasonable person in the em-

ployee’s position would have thought he had no choice but to

resign after his subsequent, more positive interactions with

his employer. Id. at 681. Ziccarelli’s case is similar. A reasona-

ble person likely would have thought he had several options

short of immediate retirement under these facts, especially

when Ziccarelli had not yet even applied for FMLA leave and

any potential discipline remained remote.

Ziccarelli invites us to speculate that he would have been

discharged if he had exercised his right to his remaining

FMLA leave. If he had submitted an FMLA request and taken

his remaining leave to receive treatment, we assume it is

24 No. 19-3435

possible he might have been terminated, crediting his version

of the conversation with Shinnawi. It is also possible that he

might have been able to combine annual leave and sick leave

with his remaining FMLA leave to seek treatment and avoid

being fired. He might also have chosen to undergo a short-

ened treatment program that matched the length of his re-

maining FMLA leave. Choosing among these and other pos-

sibilities on this record would require speculation on our part.

We are particularly loath to engage in such guesswork in the

constructive discharge context, “where we recognize that the

burden remains on the employee to show why he would have

had to ‘quit immediately.’” Chapin, 621 F.3d at 680, quoting

Lindale v. Tokheim Corp., 145 F.3d 953, 956 (7th Cir. 1998).

We conclude with some final observations. The parties

have not litigated on appeal which of the three defendants

(Shinnawi, Sheriff Dart, and Cook County) are proper defend-

ants on Ziccarelli’s FMLA interference claim. See 29 U.S.C.

§ 2611(4)(A)(ii)(I) (defining employer under the FMLA to in-

clude “any person who acts, directly or indirectly, in the in-

terest of an employer to any of the employees of such em-

ployer”). The parties also have not addressed whether Sheriff

Dart is sued in his personal or official capacities. Finally, Cook

County preserved in the district court its argument that it is a

proper party only as a potential indemnitor and only if either

of the other two defendants is found liable on the interference

claim. The district court may need to address those issues on

remand.

We REVERSE the district court’s grant of summary judg-

ment on Ziccarelli’s FMLA interference claim and REMAND

for further proceedings on that claim consistent with this

No. 19-3435 25

opinion. We AFFIRM summary judgment for defendants on

Ziccarelli’s FMLA retaliation claim.