Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—C.D. Ill.: Village official, fired after leave for knee surgeries, stated FMLA retaliation claim, (Oct 15, 2025)

By Jason Albright, J.D.

He alleged that “opportunities for light-duty work existed” but that his request for light duty was denied.

A former assistant director of public works for the Village of Bourbonnais, Illinois, fired under a new village ordinance regarding paid leave benefits, while on leave following knee surgeries, stated an FMLA retaliation claim, though his ADA failure to accommodate, FMLA interference, and Illinois retaliation claims were dismissed. Although the employee did not allege that he was able to return to work when his FMLA leave expired, he averred that the village board passed an ordinance regarding paid leave that was less friendly to village employees and “likely in Response to Plaintiff’s medical leave,” he alleged that he was “terminated under pretextual circumstances,” and the village failed to address its actual motivation(s) in firing him (Herberger v. Village of Bourbonnais, No. 25-CV-2045 (C.D. Ill. Oct. 14, 2025)).

Assistant director of public works. The plaintiff began working for the village on February 12, 2018, when he was hired as its assistant director of public works. His duties in that role “were mostly administrative and supervisory.”

Diabetic and amputee. He is an amputee and has diabetes. Notwithstanding those conditions, he consistently performed the essential functions of his job with or without reasonable accommodation.

Knee surgeries. In June 2023, he required medical leave “for complications necessitating knee surgeries and therapy.” The village approved his leave under the FMLA, to run from June 28 through December 7, 2023. Between June 28 and October 24, 2023, he then underwent surgery and rehabilitation. He was discharged from the Mayo Clinic on October 24, 2023.

Update. On October 31, 2023, he and his wife visited the village’s administration building, in part to update certain village officials on his recovery and his plans to continue his rehabilitation in Florida. During that visit, his wife spoke with the HR director about extending his FMLA leave, and on November 3, the plaintiff formally requested an extension of his FMLA leave in an email to the HR director. He cited an upcoming knee surgery scheduled for December 19, 2023, which would require six to eight weeks of rehabilitation.

Additional information? The HR director responded on November 9, 2023, stating that she was too busy to address the request. One week later, he received a letter from the village requesting additional information from his surgeon.

He submitted his surgeon’s response via email on November 21, 2023. His surgeon at the Mayo Clinic submitted an additional letter in response to the village’s original inquiry. The plaintiff then followed up with the HR director via email on December 4, and she stated in response that she hoped to provide an answer soon.

Then, on December 7, 2023, he received another letter from the village. This one again requested information from his surgeon, with many of the inquiries overlapping with those already made in the village’s November letter. His surgeon, in turn, responded to that letter on December 12, 2023.

Total knee replacement. Meanwhile, also on December 7, the employee underwent total knee replacement surgery, and he was discharged the next day.

Village’s new ordinance On December 18, 2023, however, the village board passed an ordinance regarding paid leave benefits for village employees. The plaintiff alleged, upon information and belief, that the ordinance was “more friendly to the Village and less friendly to Village employees—likely in Response to Plaintiff’s medical leave.”

Invitation to discuss extension. The next day, he received a phone call from the mayor, inviting him to meet in the mayor’s office the following afternoon to discuss his requested extension. He agreed to the meeting.

Discharge. On December 20, 2023, he attended a meeting with the village attorney and the HR director at which the mayor was not present. The village attorney read a separation of employment letter and informed him that he “would be terminated because he could not return to work until January 28, 2024, according to his doctor’s letter.”

He then requested “light-duty work,” and though he alleged that “opportunities for light-duty work existed” and that he “could have performed his duties as of December 20, 2023,” his request for light duty was denied.

Failure to accommodate. The assistant director’s ADA failure to accommodate claim was dismissed. He argued that his only disabilities were his diabetes and his amputation, and that the complications that gave rise to the need for multiple surgeries were “associated with his disability,” but he did not state—explicitly or implicitly—that those “complications” had anything to do with diabetes or his amputation, and thus he wholly failed, according to the court, to allege that either disability played any role in the events leading up to his firing.

FMLA interference. His FMLA interference claim failed because he did not plausibly allege that the village “denied him FMLA benefits to which he was entitled.” He was approved for FMLA leave from June 28, 2023, through December 7, 2023, and his FMLA-mandated 60 working days of leave was well exhausted within that 162-day span. Indeed, said the court, it was clear that the village provided him with extra leave beyond that which was required.

FMLA retaliation. However, the assistant director’s FMLA retaliation claim survived. He alleged that he was “terminated under pretextual circumstances,” suggesting, according to the court, that while he was ostensibly terminated because he could not return to work, the real reason for his termination was retaliation for having taken FMLA leave. And the village failed to address its actual motivation(s) in firing him.

Illinois retaliatory discharge claim. Finally, the assistant director’s Illinois retaliatory discharge claim was dismissed. He failed to cite a single case in which either a federal or state court has allowed an Illinois retaliatory discharge claim to proceed on an FMLA retaliation theory.

The case is No. 25-CV-2045.

Judge: Bruce, C.

Attorneys: Matthew R. Custardo (Law Offices of Matthew R. Custardo) for David Herberger. Caroline Kneafsey Vickrey (Johnson & Bell) for Village of Bourbonnais.

Companies: Village of Bourbonnais

Cases: EmployeeLeave Discharge DisabilityDiscrimination Discrimination PublicEmployees StateLawClaims IllinoisNews