The Seventh Circuit recently reversed a summary judgment that the lower court had granted to the employer in a FMLA case. Summary judgment is warranted when there is no genuine issue of material fact, and, based on the material facts, there is no viable legal claim. In Lewis v. School District #70, No. 06-4435, 2008 U.S. App. LEXIS 8248 (7th Cir. April 17, 2008), the Seventh Circuit cited as evidence of retaliation the school's expectation that Lewis complete all of the duties of her full-time bookkeeping position while she was working on a part-time basis while she used intermittent FMLA leave. Because she did not meet that expectation, the School permanently removed her from her position. The court noted that the school had numerous options consistent with the mandates of the FMLA that did not require Lewis to perform her full-time duties while working part-time such as (1) shifting the work to other employees during the time Lewis was taking intermittent FMLA leave; (2) hiring part-time help; or (3) transferring her to another position temporarily.

By holding Lewis to the unrealistic expectation that she should accomplish satisfactorily all of her duties of the bookkeeper position during her period of FMLA-protected intermittent leave, a jury, the court concluded, could find that the School violated the FMLA when it decided to permanently remove her to another position.

Susan Fahey Desmond