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Charles Siedlecki In 1998 Chris Schultz, a 25-year maintenance worker with Christ Hospital and Medical Center in Oak Lawn, Illinois, was an esteemed “MVP Employee,” whose photo hung in the hospital lobby. But two years later, he was out of a job. He sued, claiming that the Family and Medical Leave Act should have protected him while he took time off to care for his aging parents. Jurors, in Schultz v. Advocate Health, agreed, awarding the 48-year-old maintenance worker $11.65 million — one of the highest verdicts yet under the FMLA. Employment lawyers say they expect more such awards as baby boomers increasingly confront the issues of caring for aging parents. Once Schultz’s request for leave was granted in 2000, he was entitled to 12 weeks of intermittent leave over the course of a year. He was caring for his father, who suffered from Alzheimer’s disease, and his ailing mother, who died later that year. During Schultz’s leave, however, hospital supervisors instituted a monthly performance policy that graded maintenance employees by the amount of work completed within a set period of time. It was that system that caused his problems. His lawyer, Charles Siedlecki, now says that the hospital’s grading policy punished employees granted legitimate time off, including those on sick or disability leave. “You can’t hold people accountable for work when they are not there to do it,” says Siedlecki, who worked on the case with John DeRose & Associates of Hinsdale, Illinois. Joan Gale, of Chicago’s Seyfarth Shaw, who led the defense for the hospital, did not respond to requests for comment. Following a seven-day trial and eight hours of deliberations, the four-man, four-woman jury awarded $10.75 million against Advocate Health and Hospitals Corp., which owns Christ Hospital. Additional awards of $450,000 each were levied against two supervisors. U.S. district court senior judge Milton Shadur of Chicago is still considering equitable damages — or back- and front-pay awards — as well as liquidated damages, which are similar to punitive damages but are capped. Steve Platt, president of the Illinois chapter of the National Employment Lawyers Association and a partner at Chicago’s Arnold & Kadjan, says he expects more FMLA claims against employers as more baby boomers’ parents reach their final years. He speculates that the particularly high award in the Schultz case had emotional underpinnings. “There’s a certain amount of equity in the drama of a courtroom, and juries don’t always decide things based on jury instructions or the law,” Platt says. “If they see [an employer doing] something that isn’t fair, they’re going to hit you for it.” An FMLA claim on its own would not have produced such a high verdict, says Siedlecki. “Damages available under FMLA are set by statute, and limited,” he says. “To get further compensation, you have to weave in a state claim.” In fact Schultz did seek higher damages, by suing his employer under an Illinois statute for intent to inflict emotional distress. State claims of emotional distress in employment matters are hard to collect on, Siedlecki says: “They almost never survive summary judgment,” He says he won’t be surprised if the verdict is reduced: “The [U.S. Court of Appeals for the] Seventh Circuit is pretty conservative.” This article originally appeared in The National Law Journal, a sibling publication of Corporate Counsel and a part of American Lawyer Media.

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