The Seventh Circuit Court of Appeals recently rendered a decision in favor of an employee whose employer discriminated against him after he requested Family Medical Leave time to treat a heart condition. In Pagel v. TIN Inc., 2012 U.S. App. LEXIS 16548 (7th Cir. Aug. 9, 2012), the defendant, TIN Inc., terminated the plaintiff, Jeff Pagel, for alleged “poor performance” after Pagel took FMLA leave to treat his serious health condition, septal wall ischemia. Between July and October 2006, Pagel had experienced chest pain and labored breathing. He sought treatment and testing, including a stress test, an angioplasty and stent placement, a CT scan and a PET scan. During that same time period, Pagel’s manager claimed that Pagel’s sales revenues were declining. On September 18 (the same day Pagel had his PET scan), the manager called Pagel and demanded to schedule a “ride along” for the next day, September 19, in order to evaluate Pagel’s performance. The ride along did not go as planned; in fact, the manager called it “disastrous.” On October 4, 2006, TIN terminated Pagel’s employment.

Pagel’s contention, that his manager “set him up to fail” by scheduling a ride along with only one-day advanced notice, persuaded the Seventh Circuit that he had been mistreated by TIN. After all, generally it took one week for account managers to arrange sales calls. “Because Pagel was only given one day to set up sales calls in a city he did not previously intend to visit, it is no wonder that everyone agreed that he could have done a better job.” TIN’s reason for terminating Pagel was suspect. It appeared TIN set Pagel up for failure so that TIN could terminate him. Thus, there was sufficient evidence that TIN interfered with Pagel’s right to take FMLA leave without suffering an adverse employment. The Court remanded the case, so Pagel will have the opportunity to proceed to trial.

Employees seeking redress for unfair treatment in their employment face an uphill battle. Generally, employers already have attorneys, and they are prepared to dispose of the case as soon as possible.1 Hawks Quindel’s employment law attorneys have the experience and expertise necessary to even the playing field. We remain committed to helping employees exercise their rights to fair and equal treatment in the workplace. If you have been disciplined or terminated because you took medical leave, or for some other discriminatory reason, please contact our firm.

1 Summary judgment motions continue to increase, and defendant-employers win far more summary judgment motions than plaintiff-employees. See Joe S. Cecil, Rebecca N. Eyre, Dean Miletich & David Rindskopf, A Quarter Century of Summary Judgment Practice in Six Federal District Courts, 4 J. EMPIRICAL LEGAL STUD. 861, 886-89 (2007).

Danielle Schroder

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