Labor & Employment Law Daily Wrap Up, PROCEDURE—7th Cir.: District court improperly granted employer JMOL, but new trial properly granted, (Jul 8, 2025)

By Ronald Miller, J.D.

Nothing in the pretrial transcripts or filings mentioned the specific fact upon which the district court granted judgment as a matter of law.

The Seventh Circuit reversed a district court’s entry of judgment as a matter of law (JMOL) in a suit by a correctional offer based on an FMLA interference claim. The employee retired from the sheriff’s office after being threatened with discipline for using FMLA leave. The sheriff’s office prevailed on a Rule 50(b) motion after a jury verdict in his favor. However, the motion did not provide the employee with the specific ground on which the district court granted JMOL. Thus, the appeals court agreed with the employee that the grounds underlying the Rule 50(b) motion were not properly presented before the verdict. On the other hand, the appeals court affirmed the district court’s conditional grant of a new trial, since the ruling was not an abuse of discretion (Ziccarelli v. Dart, No. 24-2377 (7th Cir. June 30, 2025)).

Intermittent FMLA leave. The employee began working as a correctional officer for the sheriff’s office in 1989. In 2011, he started using intermittent FMLA leave to manage his post-traumatic stress disorder (PTSD). The sheriff’s office approved his taking up to seven days of FMLA leave per month and allowed him to use accumulated sick leave to receive his regular salary while on FMLA leave.

In 2016, the employee’s PTSD worsened. His doctor recommended that he take eight weeks off for treatment. During the week of September 12, the employee contacted the sheriff’s FMLA coordinator, apparently to discuss taking his FMLA leave in large chunks. According to the employee, the FMLA coordinator warned him to “not use any more [FMLA leave] or you will be disciplined.” The employee used one more day of FMLA leave on September 19, then resigned.

Lawsuit. The employee filed this lawsuit alleging that the sheriff’s office interfered with his FMLA rights and retaliated against him in violation of the statute. After the district court granted summary judgment for the sheriff’s office on both claims, the Seventh Circuit affirmed summary judgment on the retaliation claim. It reversed the district court’s judgment on the interference claim.

On remand, the case went before a jury on the FMLA interference claim. At the close of the employee’s case, counsel for the sheriff’s office made an oral motion for “a judgment of directed finding.” The jury ultimately returned a verdict for the employee, awarding him $240,000.

The sheriff’s office then filed a Rule 50(b) renewed motion for JMOL, a Rule 59 motion for a new trial, and a motion for remittitur. The court granted JMOL for the sheriff’s office and a conditional new trial if the judgment were later vacated or reversed.

Judgment as a matter of law. On appeal, the employee challenged the district court’s ruling on the proper Rule 50 procedure, the substance of the judgment as a matter of law, and the new trial ruling.

Fed R. Civ. P. 50(a)(2) provides that a court can grant a motion for judgment as a matter of law made “any time before the case is submitted to the jury.” Rule 50(a)(2) also requires the motion to “specify the judgment sought and the law and facts that entitle the movant to the judgment.” If a court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court may entertain a “renewed” post-verdict motion under Rule 50(b).

Here, the district court concluded that the grounds for the sheriff’s office’s Rule 50(b) motion were preserved because the parties and the court discussed evidence of prejudice before trial. Because the appeals court did not see the pre-trial conferences the same way, it reversed the grant of judgment as a matter of law.

Rule 50(a) motion. Applying an abuse of discretion standard, the appeals court observed that the district court granted the sheriff’s office’s Rule 50(b) motion because evidence at trial showed that the employee took FMLA leave after his phone call with the FMLA coordinator. It found that this fact negated “any reasonable inference” of prejudice. The appeals court concluded that the sheriff’s office’s Rule 50(a) motion did not provide the employee with notice of this ground for judgment as a matter of law.

Notice function. Rule 50(a) motions must be made with specificity because “the purpose of the rule is to allow the responding party an opportunity to cure any defect in its case before it is submitted to the jury.” Because Rule 50(a)’s specificity requirement serves a notice function, the question is whether the non-moving party should have understood the grounds that were raised by the Rule 50(a) motion.

The district court concluded here that the employee knew of the “extra day” ground for the sheriff’s office’s Rule 50(a) motion because of discussion in a pretrial conference. However, the appeals court concluded that the pretrial proceedings did not make this ground adequately clear. First, nothing in the pretrial transcripts or filings mentioned the specific fact upon which the district court granted judgment as a matter of law.

The second problem was that the pretrial filings and transcripts focused on whether the employee could seek damages “snowballing” from his resignation, not whether he could show prejudice at all and therefore prove liability notwithstanding his having taken FMLA leave on September 19. A party may rely on specific facts or arguments not expressed in a Rule 50(a) motion only when the non-moving party is clearly on notice of a more general argument in the same genre. Here, the pre-trial arguments focused on the availability of a specific category of damages.

The pre-trial discussions focused specifically on whether the employee could seek damages flowing from his resignation. That said nothing about whether he could seek other damages or show prejudice in other ways.

Motions in limine. The appeals court also reviewed the motions in limine to see if any of them should have put the employee on notice that the district court might grant judgment as a matter of law based on his additional day of leave when the sheriff’s office made its content-free Rule 50(a) motion during trial. The sheriff’s office’s motion asked the court to exclude evidence on backpay, pension credit, and reinstatement, but acknowledged that those potential damages were separate from the employee’s “remaining sick leave.” This motion confirmed that the pretrial conversations were aimed at only post-resignation damages, not the consequences of the employee’s one more day of FMLA leave.

Even the district court’s invocation of Rule 50 focused on a different issue than the one on which it ultimately granted judgment as a matter of law. Elsewhere, the court hinted that another possible procedural vehicle might be a motion for remittitur.

These pretrial discussions did not notify the employee of an argument that he might not be able to show prejudice because he took that one additional day of FMLA leave, which was the specific ground on which the district court granted judgment as a matter of law. That makes the judgment procedurally improper. Accordingly, the appeals court reversed the district court’s entry of judgment as a matter of law without addressing the merits.

New trial. The district court conditionally granted a new trial under Rule 59 in the alternative to its judgment as a matter of law ruling. Here, the district court granted a new trial for the same substantive reason it granted judgment as a matter of law. It concluded that the employee had presented “insufficient evidence of prejudice.”

The appeals court affirmed the conditional grant of a new trial. The district court’s new trial ruling was not an abuse of discretion for two reasons. First, the district court interpreted Ziccarelli I to foreclose a theory of relief based on constructive discharge. On this basis, it concluded that the employee could not claim prejudice resulting solely from his decision to retire. Second, the district court did not abuse its discretion by concluding that the employee had not presented evidence of prejudice aside from his resignation and the resulting harm. The employee’s resignation can be thought of as a non-interference-related event that precludes a claim of ongoing prejudice resulting from FMLA interference.

Thus, the district court’s grant of JMOL was reversed. However, the district court’s conditional grant of a new trial was affirmed.

The case is No. 24-2377.

Judge: Hamilton, D.

Attorneys: Kenneth N. Flaxman (Law Offices of Kenneth N. Flaxman) for Salvatore Ziccarelli. Kathleen Cunniff Ori, Office of the Cook County State’s Attorney, for Thomas J. Dart.

Companies: Cook County Sheriff’s Office

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