Elizabeth Chitwood, a human resources specialist at Ascension Health Alliance, was approved for intermittent FMLA leave for migraines and later for continuous leave to care for her son. When her continuous leave expired in November 2021, Ascension instructed her to return to work by November 15. Chitwood did not return. Instead, she left a voicemail on the attendance line assuming she had been terminated and expressing gratitude for her time at the company. Ascension terminated her later that day for failure to return to work. The following day, Chitwood attempted to retroactively report intermittent FMLA leave for her absences on November 11, 12, and 15. She sued, claiming interference and retaliation under the FMLA. The district court granted summary judgment to Ascension, and Chitwood appealed.
The Seventh Circuit affirmed the district court's decision on two primary grounds: interference and retaliation. First, regarding FMLA interference, the court explained that to prevail, a plaintiff must show they were denied benefits to which they were entitled. Because Chitwood attempted to report her November absences only after she had already been terminated, she was no longer an employee and could not be denied FMLA benefits. Furthermore, the court emphasized the notice requirements. Federal regulations and Ascension's policy required employees to report intermittent leave on the same day the absence occurs or as soon as practicable. Chitwood failed to report these absences timely; she waited until the day after termination to report them. The court rejected her argument that a prior instance of late reporting excused her, noting that the record showed only one such instance and that she had communicated her intent to take leave on the day of that absence. Second, regarding the retaliation claim, the court found no evidence of discriminatory intent. Chitwood was terminated for failing to return to work as directed, not for her prior use of FMLA leave. The court addressed internal emails where supervisors expressed suspicion that Chitwood was abusing her leave rights. The court held that an employer's honest suspicion of abuse is not enough to establish retaliation, especially when the termination was based on a legitimate, non-retaliatory reason: failure to return to work. The court also noted that while one supervisor suggested alternative reasons for rehire eligibility, the official termination reason remained the failure to return, which was factually supported.
This decision reinforces the strict notice requirements for intermittent FMLA leave. Employers are protected when they terminate employees for failure to return to work after leave expires, provided the termination is not pretextual. Employees must report absences in real-time according to policy; retroactive reporting after termination will not support an interference claim. The ruling clarifies that internal suspicions of leave abuse do not constitute retaliation if the employer acts on a legitimate, non-retaliatory ground for termination.
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