A termination decided before an FMLA request can stand when the reason is genuine and independent of the leave. In Chitwood v. Ascension Health Alliance, the Seventh Circuit ruled for the employer after an employee tried to claim FMLA leave the day after she was terminated. ComPsych’s ADA Coach Sarah Oppenheim walks through the case below.
What happened
Elizabeth Chitwood had two approved FMLA leaves with Ascension, an intermittent leave for her own migraines and a continuous leave to care for her son. When the continuous leave ended, Ascension told her repeatedly and in writing that she had to return on a specific date or be terminated.
She did not return. On the morning of that date, she left a voicemail on the attendance helpline saying she assumed she had already been terminated and thanking the company for the opportunity. She never mentioned FMLA. Ascension terminated her that day. The next day, she tried to report her last few absences as intermittent FMLA leave, and the leave administrator declined to process it because she was no longer an employee.
Chitwood sued, alleging that Ascension interfered with her FMLA rights and that her termination was retaliation for her earlier use of leave.
The decision
In March 2026, the Seventh Circuit affirmed summary judgment for Ascension on both claims. On interference, the court held that an employee cannot be denied a benefit she is no longer entitled to, and her after-the-fact attempt to turn unexcused absences into protected leave came too late. On retaliation, the court found that managers’ emails questioning whether she was gaming her FMLA use did not show retaliatory motive. An honest suspicion of abuse is not evidence of retaliation, even if the suspicion later proves wrong. What mattered was that the stated reason for termination was genuine and consistently applied.
Key takeaways for employers
- Courts look at what the employer knew before the adverse action, not at what the employee raises afterward.
- Clear, consistently applied leave notice policies are an enforceable part of your defense, not just paperwork.
- Put return to work directives and deadlines in writing, and make the consequences unambiguous.
- Suspecting FMLA abuse is not retaliation as long as the stated reason holds up and is applied evenly.
An important caveat: This is a Seventh Circuit decision, so it is binding only in Illinois, Indiana, and Wisconsin and persuasive elsewhere. It also does not protect every termination that happens near a leave request. Ascension’s position was strong because its policy was clear and consistently applied, and the termination reason was independent of the leave. A vague policy or a thin paper trail can cut against an employer just as easily.
Facing an attendance or performance issue that collides with a leave request? Reach out to your leave administrator before finalizing any decision.
