988 F.3d 380
7th Cir.2021Background
- Nathan Hickey worked as an Account Executive for Protective Life, took FMLA leave from about November 17, 2016 to February 17, 2017 for family/medical reasons.
- While he was on leave Protective acquired U.S. Warranty; Hickey discussed a possible transfer to U.S. Warranty with manager Steve Potts and later in deposition described anticipating an offer or applying, but did not testify to receiving or accepting an offer.
- On return he was reassigned territory, lost certain established accounts, and was guaranteed the same pay for six months; he received a 2016 overall rating of "inconsistent," making him ineligible for internal transfer.
- At a March conference, VP Tim Blochowiak offered Hickey a severance, later concluded Hickey had lied about discussing the offer and transfers, and terminated Hickey about three weeks after his return; Hickey abandoned his retaliation claim and pursued an FMLA interference claim.
- The district court excluded Hickey's supplemental affidavit (which asserted he had been offered and accepted a U.S. Warranty job) as contradicting his deposition, found Hickey had no monetary or equitable harm under 29 U.S.C. § 2617, granted summary judgment for Protective, and the Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Protective interfered by using FMLA leave as a negative factor in performance review | Hickey: leave led to downgraded 2016 review in violation of FMLA regs | Protective: rating reflected pre-leave performance; no compensable harm resulted | Court: Even if negative factor, Hickey showed no monetary/equitable harm under §2617, so claim fails |
| Whether Hickey was denied reinstatement to an equivalent position on return | Hickey: new duties and loss of established accounts made position non-equivalent | Protective: same title, manager, products, pay guarantee for six months; no proof of lost earnings | Court: No compensable loss occurred before termination; no basis for relief under §2617 |
| Whether Hickey was entitled to reinstatement or front pay based on an alleged U.S. Warranty offer | Hickey: Potts offered and he accepted a U.S. Warranty job, so equitable relief appropriate | Protective: only an application/possibility existed; no offer or entitlement | Court: Only a self-serving affidavit claimed an offer; affidavit excluded and no evidence of entitlement to reinstatement or front pay |
| Whether district court properly excluded Hickey's supplemental affidavit | Hickey: affidavit supplies evidence of offer/damages | Protective: affidavit contradicts prior sworn deposition and should be struck | Court: Affirmed exclusion as within district court's discretion because affidavit contradicted prior deposition testimony |
Key Cases Cited
- Cianci v. Pettibone Corp., 152 F.3d 723 (7th Cir. 1998) (no FMLA remedy where plaintiff suffered no economic loss from alleged interference)
- Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002) (FMLA relief limited to harms caused by the violation and tailored to the prejudice suffered)
- Buckner v. Sam's Club, Inc., 75 F.3d 290 (7th Cir. 1996) (affidavits that contradict earlier sworn testimony may be excluded to prevent creation of sham issues of fact)
- McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995) (equitable reinstatement/front pay unavailable when later legitimate reasons justify termination)
- Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. 2008) (FMLA interference can be premised on failure to reinstate to an equivalent position)