What Retaliation Could Cost You: Alcazar-Anselmo v. City of Chicago

November 2011

Alcazar-Anselmo v. City of Chicago: What Retaliation Could Cost You!

Employers can find themselves defending against claims of retaliation or interference when the Family Medical Leave Act (FMLA) is mishandled. There have been plenty of examples of this scenario played out within the court system. Alcazar-Anselmo v. City of Chicago highlights the importance of proper FMLA administration. The plaintiff, Gladys Alcazar-Anselmo, claimed interference with her rights to FMLA leave and retaliation when she was fired from her position as deputy commissioner in the Department of Consumer Services.

About the Plaintiff

The plaintiff underwent gastric bypass surgery on January 19, 2006 because her morbid obesity was causing other serious health issues.  After the surgery the plaintiff lost 150 pounds within the first year. A result of the rapid weight lose was excess skin. On May 3, 2007, the plaintiff underwent cosmetic surgery to remove the excess skin.

The Defenses Point of View

The City of Chicago argued that the plaintiff did not provide enough evidence to show she was denied the essential FMLA rights and argued the existence of a serious health condition. The City of Chicago also cited the plaintiff’s job performance in the defense of the termination.

The City of Chicago did not dispute the necessity for gastric bypass surgery but they did argue that the excess skin did not qualify as a serious health condition. The City of Chicago references Philips v. Quebecor World RAI, Inc in their defense, citing that FMLA does not clarify what exactly constitutes a serious health condition.

After warnings of potentially violating the attendance policy, Philips had gone to the doctors, missed three consecutive days, and was prescribed medication. After Philips was terminated it was established that her medical condition was a result of a tumor. Philips argued that the three consecutive days off and references to visiting a doctor and being “sick” were enough to inform Quebecor of an FMLA qualifying event. The court ultimately sided with Quebecor and stated that determining FMLA for each absence related to sickness would be “a substantial and largely wasted investigative burden on employers.” Philips v. Quebecor World RAI, Inc established that FMLA is evaluated on current health conditions rather than unforeseeable conditions.

Is it FMLA

Typically, cosmetic surgery does not fall under FMLA and you would not base FMLA on potential serious health conditions. In this case, both of the plaintiff’s doctors testified in a deposition that the procedure was a continuation of the treatment and left untreated would lead to additional serious health conditions.

On March 16, 2011 the court determined that the excess skin did in fact meet the conditions of a “serious health condition”. CFR § 825.113 identifies a “serious health condition” entitling an employee to FMLA leave as an illness, injury, impairment or physical or mental condition that involves inpatient care.

The City of Chicago’s Next Move

The City of Chicago calls into question the employees performance. This is a legitimate defense under FMLA in limited circumstances. CFR § 825.216(a) states that “An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.” If, during an FMLA leave, it is discovered that the employee violated company rules or committed some other act that would warrant termination, the FMLA does not protect that employee from disciplinary action that would normally apply.

It is important to note that CFR § 825.216(a) continues on to state that “an employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment”.

What Went Wrong

The City of Chicago calls three witnesses to testify about the plaintiff’s performance. The most important is Norma Reyes who is the commissioner of the Department of Consumer Services. This is where The City of Chicago’s defense begins to fall apart. Reyes was specifically questioned about the performance issues and the documentation of any disciplinary actions.

It was found that Reyes did not follow a procedure that documented the actions that required discipline nor did she outline the potential for termination with the plaintiff. In Reyes’ testimony she alluded to two conversations about performance but neglected to include the possibility of discipline or termination. What was Reyes’ reason for not documenting the actions that could lead to discipline? Simple, she was not required too!

The court found that the lack of documentation and verbal communication about potential discipline and/or termination illogical. Considering that most of the testimony indicated the plaintiff performed her job well the court found the timing of the termination suspicious.

The Court’s Decision

Since the events were found to be FMLA protected and The City of Chicago could not provide evidence to support the justification to terminate, the court sided with the plaintiff.

How much did this cost The City of Chicago? The Plaintiff received $178,952.34 in compensatory damages and $237,097.46 for attorney and court costs.


Mishandling FMLA can lead to a law suite that can name the employer and potentially individuals within the company. While it is possible to terminate an employee while on FMLA the rules allowing termination are limited. If you find yourself looking at this possibility you should review your policies and be prepared to defend your decision against claims of interference and retaliation.

If you are interested in learning more about FMLA please join our complimentary webinar on Wednesday, November 9.