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  • October 25, 2022

    Employer Violated FMLA by Assigning Return Teacher to Support Staff Role

    The Seventh Circuit Court of Appeals also ruled that declaratory relief is a form of equitable relief that is available under the Family Medical Leave Act, and an award of attorney fees was proper.

    Jeff M. Brown

    A Teacher Leaning Over A Work Table, Gesturing And Talking To Smiling Students

    The Seventh Circuit Court of Appeals also ruled that declaratory relief is a form of equitable relief that is available under the Family Medical Leave Act, and an award of attorney fees was proper.​

    Oct. 25, 2022 – Declaratory relief is among the forms of equitable relief that courts are allowed to grant under the Family Medical and Leave Act (FMLA), the U.S. Court of Appeals for the Seventh Circuit has ruled.

    In Simon v. Cooperative Educational Service Agency #5, No. 21-2139 and 22-1035 (Aug. 16, 2022), the Seventh Circuit also ruled that an employer who assigned a lead teacher work as support staff after she returned to work violated the FMLA.

    Head Injury at Work

    In July 2014, Cooperative Educational Service Agency #5 (CESA) hired Sarah Simon as a lead teacher at REACH Academy, an elementary school for special needs students.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    At the academy, Simon taught students, managed teachers’ aides, created integrated education plans (IEPs), and communicated with parents, school district officials, parents, and the police.

    In October 2016, Simon suffered a concussion at work when a student kicked a steel door and the door hit her head.

    Simon took leave under the Family Medical Leave Act (FMLA). Simon was cleared to return to work on Oct. 31, on a part-time and light-duty basis; she was cleared to return to work full-time and with no restrictions beginning on Nov. 6. 

    The academy’s business director and other employees decided that putting Simon back in her lead teacher position posed an unreasonable risk so when she returned to work, the academy placed her in a support position.

    Simon received the same salary benefits as she did when she worked as a lead teacher. However, the support position entailed less responsibility, independence, and discretion than the lead teacher position.

    Simon supported other teachers and performed no lesson planning, evaluation, direct teaching, communication with families, or IEP drafting. Additionally, Simon received no help from teachers’ aides and her time was split between two schools.

    Federal Lawsuit Follows

    Simon sued CESA in the U.S. District Court for the Western District of Wisconsin.

    Simon claimed that CESA had violated the FMLA and asked the court for: 1) a declaration that CESA violated the FMLA by not returning her to an equivalent position; 2) an injunction requiring CESA employees to undergo additional FMLA training; and 3) an injunction requiring CESA to hire her for the next available equivalent position that came open at the academy. 

    In May 2021, the district court found that CESA had violated the FMLA by not returning Simon to an equivalent position.

    The court also determined that only declaratory relief was warranted, because there was no lead teacher position for Simon at the academy and because Simon had since found a job elsewhere, and entered an order granting declaratory judgment.

    Declaratory Relief is Equitable Relief

    CESA argued that the district court erred because 1) declaratory relief is not available under the FMLA and 2) Simon failed to show that she was prejudiced by the academy’s FMLA violation.

    Judge Kirsch pointed out that the FMLA allows plaintiffs “to recover the damages or equitable relief prescribed” in the statute. He also pointed out that the FMLA specifies that any employer who violates the act is “liable … for such equitable relief as may be appropriate, including employment, reinstatement, and promotion.”

    The Seventh Circuit has never considered whether declaratory relief qualifies as equitable relief allowed under the FMLA, Judge Kirsch noted.

    But it considered the same question with almost identical wording in the Employee Retirement Income Security Act (ERISA), Kirsch pointed out, and concluded that a suit for declaratory judgment was an equitable remedy allowed under ERISA.

    “We have been given no reason to treat the FMLA’s text … differently from ERISA’s,” Kirsch wrote. “And, on first principles, we are untroubled with extending these holdings to the FMLA context.”

    Judge Kirsch explained that Congress had declared in other statutes that declaratory judgments were included within equitable relief.

    “We have found no statutes in which Congress has excluded declaratory judgments from the definition of equitable relief,” Kirsch wrote.

    Kirsch also pointed out that the remedies Congress specified in the FMLA – including employment, reinstatement, and promotion – were more onerous than declaratory relief.

    “It would make little sense for the FMLA to permit courts to grant these heavy-handed remedies yet bar them from using a lighter touch through entry of a declaratory judgment,” Judge Kirsch wrote.

    The weight of U.S. Supreme Court precedent supported such a conclusion, Kirsch added.

    Simon Was Prejudiced by Re-assignment

    Judge Kirsch next concluded that the district court had not erred in determining that Simon had been prejudiced by CESA’s failure to reinstate her to a lead teaching position.

    “An employee that must give up her fulfilling job for on in which she is overqualified suffers ‘a real impairment of [her] rights and resulting prejudice,’” Kirsch wrote, quoting a U.S. Supreme Court decision interpreting the FMLA.

    “Simon worked below her professional capacity for most of the school year and, like any professional who spends time away, from their area of expertise, will likely have to explain away that wasted period to future prospective employers.”

    Attorney Fees Award was Proper

    CESA also argued that an award of attorney fees for a plaintiff that’s obtained declaratory relief is not allowed under the FMLA, and cited two Seventh Circuit cases in support.

    But in one of the cases, Judge Hirsch pointed out, the district court entered judgment for the defendant, not the plaintiff, so the case provided no guidance to the instant case.

    In the other case, the Seventh Circuit held that a plaintiff who sued six defendants for $17 million and, after a decade of litigation, obtained a judgment of $1 against one of the defendants, was not entitled to an award of attorney fees.

    That case, Judge Hirsch pointed out, was not on point because: 1) it didn’t involve the FMLA; and 2) Simon had sought only injunctive and declaratory relief and obtained declaratory relief.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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