Plaintiff Jose Varela worked as one of three supervisors for Rock-Tenn in its Aurora paperboard manufacturing plant. He had been employed by the company since 1978. In early 2004, Rock-Tenn lost its two biggest customers as a result of a price increase for its laminated paperboard products. The losses caused a reduction of more than 50% in the volume of laminated products manufactured at the Aurora plant. Due to reduced production, the company elected to reduce the number of shifts at Aurora from three to two. The General Manager tasked the Human Resource Manager to determine which of the three supervisors he would recommend for retention. At about this time, the Aurora hourly bargaining unit employees went on strike. The supervisors, including the plaintiff, began performing bargaining unit work. During this time Varela notified his supervisors that he was feeling sick, but declined to take go home.
On June 15, 2004, Rock-Tenn announced that it was shutting down its Aurora laminating operations and leaving that business permanently. As a result, it reduced from two shifts to one shift. The General Manager asked that his Superintendent recommend one of the three supervisors to retain. The GM elected to retain a supervisor other than Varela on June 25, 2004. The strike continued until July 2, 2004. Most of the plant was closed through July 5, 2004. Varela entered the hospital on July 5, 2004, where he was diagnosed with pneumonia. He was told not to return to work until July 14, 2004. On his return he was notified that he had been laid off.
Plaintiff sued alleging that his layoff constituted illegal retaliation for his taking FMLA leave on July 5, 2004. The court disagreed. The record evidence, the court found, established that the decision to lay off Valera was made on July 25, 2004, two weeks before the Plaintiff's FMLA leave. The court referenced the Plaintiff's name on a dated excel spreadsheet listing employees who would be laid off. Because the layoff decision was made before Plaintiff's use of FMLA leave, the decision could not be in retaliation for that leave. Varela v. Rick-Tenn Co., No. 05 C 7067, 2006 U.S. Dist. LEXIS 80732 (N.D.Ill. Nov. 2, 2006).
Comment: The employer defeated the retaliation claim because the employee was unable to establish that his layoff was casually related to his exercise of FMLA rights. The date of the adverse decision, not when the employee first learned of the consequences of that decision, is controlling. Here, because the layoff decision was made before Varela took FMLA leave, the fact that he first learned that he was laid off several weeks later on his return from FMLA leave does not establish the requisite causation for purposes of proving retaliation. An employer cannot retaliate against the exercise of FMLA rights that has not yet happened.