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A case in which an employee charged that he was retaliated against for taking time off under the Family Medical Leave Act to care for his aging parents has triggered an $11.65 million award. The recent Chicago verdict — one of the largest won under FMLA — is just one of many that employment lawyers say they expect to see as baby boomers are faced with the predicament of caring for aging parents. In 1998, Chris Schultz, a 25-year veteran employee of Christ Hospital and Medical Center in Oak Lawn, Ill., was the esteemed “MVP Employee” with his picture hanging in the hospital lobby. But two years later, he was out of a job. Lawyers for the 45-year-old Schultz sued the hospital in Schultz v. Advocate Health, No. 01C-0702 (N.D. Ill.), claiming that he was unfairly penalized for taking time off to care for his aging parents. Schultz, who worked in maintenance, was entitled to take 12 weeks intermittently over the course of a year after his request for family medical leave was granted in 2000. At the time, he was caring for his father, who suffered from Alzheimer’s disease, and his ailing mother, who eventually died later that year. During the course of his leave, hospital supervisors instituted a monthly performance policy that graded maintenance employees by the amount of work they had completed within a set period of time. It was this system that led to trouble. Schultz’s lawyer, Charles Siedlecki, a Chicago-area solo practitioner, argued that the hospital’s grading policy punished employees who had been 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,” said Siedlecki. He argued the case with co-counsel John P. DeRose, a solo based in Hinsdale, Ill. Joan E. Gale, a member of Chicago’s Seyfarth Shaw, led the defense for the hospital. Gale did not return calls for comment. After a seven-day trial and eight hours of deliberations, a jury of four men and four women 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. The issue of equitable damages remains before U.S. District Senior Judge Milton Shadur of the Northern District of Illinois, who could opt to award “liquid damages,” or twice the total amount of front and backpay. Steve Platt, president of the Illinois chapter of the National Employment Lawyers Association and a partner at Chicago’s Arnold & Kadjan, expects to see more FMLA claims against employers as baby boomers face the predicament of caring for aging parents. Platt said he would be hard-pressed to point to another FMLA verdict as high as this one, and speculates that the jury’s reaction was an emotional one. “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 said. “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, said Siedlecki. “Under FMLA, the most you can get is liquid damages,” he said. “To get that kind of verdict, you’ve got to find some state claim not subject to the caps,” he said. To seek higher damages, in addition to FMLA, Schultz sued his employer under an Illinois statute for intent to inflict emotional distress. State claims of emotional distress in employment matters are very hard to pursue, admits Siedlecki. “They almost never survive summary judgment.” Siedlecki said he won’t be surprised if the verdict is reduced. “The 7th Circuit is pretty conservative,” he said.

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