Could Worker Glued to Cell Phone during FMLA Leave Sue for Retaliation?

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A recent Illinois case involving a city worker who was seen socializing and making cell phone calls when she was supposed to be caring for her ailing father highlights the importance of staff training. Proper training of supervisory staff might have avoided a case that made its way to the 7th U.S. Circuit Court of Appeals.

The employee worked as an Assistant Community Living Specialist for Chicago. She had received no discipline at work until 2020, when a new supervisor came into the picture to try and improve employee performance.

Around that time, the Specialist took FMLA leave, which she was allowed to use in small increments, to help take care of her ailing father.

During the period in which she was using leave, she was suspended for five days for abusing FMLA leave. The supervisor said she and another staffer saw the Specialist socializing and using her phone around City Hall during times she claimed to be using leave. 

The Specialist admitted she was on the phone. It turned out, however, that at least some of the calls were related to caregiving for her father. She sued the city, arguing that her suspension was retaliation for using her FMLA leave.

To establish retaliation, an employee must show that:

1. She engaged in FMLA-protected activity (such as requesting or using leave);
2. The employer took adverse action against her; and
3. There is a causal connection between the two.

Did the specialist establish retaliation?

A. Yes. The supervisor was wrong to assume that her phone calls were not part of her FMLA leave activities.

B. No. The supervisor, though incorrect about the phone calls, genuinely believed they were not FMLA-related.

If you selected B, you agreed with the court in Paterakos v. City of Chicago, No. 24-1567 (7th Cir. 08/12/25), which ruled in the city’s favor.

In cases involving disciplinary suspensions, an employer may defeat FMLA liability by showing that it had an "honest suspicion" that an employee was abusing her FMLA rights. 

Here, both the supervisor and another staffer personally observed instances of the claimant using her phone at city hall, which led them to believe she was abusing her leave. 

The court acknowledged that at least some of those phone calls were for the purpose of managing her father's health. The court noted that to the extent that the supervisor and other staffer believed that those phone calls were outside of the scope of the employee’s FMLA leave, they were mistaken.

However, “an employer may establish its honest-belief defense to FMLA liability even if the employer was in fact mistaken in that belief,” the court said.

The court said that the process the supervisor followed before suspending the claimant  “left something to be desired.” The supervisor testified that she never received training on what constitutes protected activity under the FMLA. She also said the Specialist never told her that her phone calls were related to her father's care. 

“In lieu of any concrete information, [the supervisor] assumed based on her own FMLA leave and general managerial experience that taking phone calls could not be related to caring for a family member,” the court said.

However, because she had an honest belief that the Specialist was abusing her leave, the Specialist could not establish retaliation.

The court affirmed a ruling in the employer’s favor.

Tips for Employers

• Train HR and supervisory staff on what constitutes FMLA-protected activity.
• Train staff not to assume that a phone call or other activity is unrelated to a particular employee's FMLA leave.
• Carefully document disciplinary reasons to demonstrate that they are based on legitimate reasons that have nothing to do with retaliation.

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