Leave Policy/Compliance

Court Sees Through Illinois Costco Manager’s Retaliation Claim

By Kelly Smith-Haley, Fox, Swibel, Levin & Carroll LLP

The Family and Medical Leave Act (FMLA) allows eligible employees to take unpaid job-protected leave for certain family and medical reasons. The FMLA also prohibits employers from retaliating against employees who exercise their rights under the Act. But employees have certain obligations to meet before being allowed to take FMLA leave. Here we highlight two key obligations that prevented one employee from keeping his eye on the FMLA prize.

Optical delusion
Keith Curtis was hired by Costco Wholesale Corporation in 2001 at its Orland Park location, and he was promoted to optical manager in 2008. In 2011, Curtis was counseled by his supervisor, Gail Hinds, and Leslie Ingram, an assistant warehouse manager, after Costco received customer complaints.

Hinds then began monitoring the optical department more closely. In doing so, she realized that Curtis was failing to schedule workers within the optical department, a task that was part of his duties as optical manager.

In September 2011, Curtis requested and was given a medical leave under the FMLA based on stress and anxiety. He returned to work a month later, but his work performance continued to suffer. He received numerous counselings over the next 6 months and was eventually placed on a 90-day performance improvement plan (PIP).

In May 2012, while Curtis was on the 90-day PIP, Jan Jalowiec, one of his subordinates, told Costco’s management team that she believed he was going to “scam” the company based on his comments to her that he intended to take a medical leave so he could lock in his rate of pay and his position in the event of a demotion. Costco determined that Curtis’ comments to Jalowiec violated the company’s manager standard of ethics, so it demoted him from optical manager to cashier on May 19, 2012.

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