Labor & Employment Law Daily Wrap Up, RETALIATION—7th Cir.: University employee fired due to insubordinate emails, not FMLA leave, accommodation requests, (Feb 13, 2026)

By Marjorie Johnson, J.D.

“The mere fact that [she] raised the specter of discrimination and retaliation at the end of this sanctionable course of conduct is not enough to infer that IU’s reason for firing her was pretextual.”

A former eLearning instructor at Indiana University, who was granted several request for FMLA leave and accommodations for her mental health disabilities, and who was fired for insubordination after she sent a series of emails to high-level university officials accusing the eLearning group’s leaders of mismanagement, wasting resources, and miscommunicating expectations, failed to convince the Seventh Circuit to reverse the dismissal of her Rehab Act and FMLA retaliation claims on summary judgment. Though the district court mistakenly applied the “sole” causation standard to her Rehab Act claim, her claims still failed under the “but-for” standard because any remarks by her managers regarding her lack of proper notice about an upcoming leave and her “ridiculous” accommodation requests were isolated and unrelated to her termination months later, and the record showed that the university approved all her leave, granted most of her accommodation requests, and investigated all her complaints (Shirk v. Trustees of Indiana University, No. 22-3212 (7th Cir. Feb. 12, 2026)).

The university hired the employee as an intern in the eLearning group September 2018, and she moved up the ranks to become an online instructional designer by February 2019. The group assists the university’s educational departments (clients) with online instructional resources. Most of the group’s funding comes from the university’s office of online education.

Seeks reclassification. Around September 2019, the employee and a coworker requested that their positions be reclassified to higher ranks on the pay scale. The employee then received approval for FMLA leave from October 29 to January 1, 2020, for treatment of her obsessive-compulsive and post-traumatic stress disorders. During her absence, the coworker was granted her reclassification request.

Sex discrimination complaint. The COVID-19 pandemic arrived in March 2020, and due to the pandemic, IU imposed a hiring freeze and placed the employee’s reclassification request on hold. In June, she complained that this was sex discrimination. HR investigated and determined that her pay was in line with her duties and not discriminatory.

Unexpected leave. In September, she requested and received another extended period of FMLA leave from September 14 to October 16, but did not provide notice to her group leaders. Her sudden absence created operational hardships, and her manager and the group’s newly appointed director complained about the lack of notice to HR. Meanwhile, she filed another complaint about her stalled reclassification request and also alleged disability bias. When she returned in mid-October, HR notified her that its investigated found no violations of university policy.

Accommodation requests. In December, she submitted a long list of requested accommodations that included remote work and a flexible schedule; advance notice and a written agenda for leadership meetings; a support person at the meetings; the use of a shared, virtual document system to communicate with colleagues and supervisors on assignments, with express statements of expectations; and “transparency” regarding her job performance and feedback. Though her manager viewed the request as a demotion and the group’s director called them “ridiculous,” the university engaged in the interactive process and ultimately granted almost all the requests. Meanwhile, she sought and received a few more days of FMLA leave.

When she returned in January 2021, she filed a formal complaint with the university, which was ultimately deemed unsubstantiated. She also filed an EEOC charge. On February 22, the university advised her that it had approved all of her requested accommodations except for a support person at meetings. She contested the decision and also asked to record the meetings, but that request was denied based on confidentiality concerns.

Email incidents. On April 15, the eLearning group met to discuss a project for IU’s online orientation program for new students. The director reported that there was insufficient funding and that he would be consulting with the head of the office of online education (OOE leader). Minutes later, the employee emailed the OOE leader herself, asking him to review the “urgent” funding dilemma and questioning the director’s competence.

In the meantime, the director solved the funding issue. Nevertheless, the employee sent a series of follow-up emails to the OOE leader critical of the director. The next day, she emailed both the OOE leader and the VP who was the director’s boss and accused the group leaders of mismanaging the situation and wasting resources. The VP curtly responded: “The situation has been resolved.”

Her supervisor learned about these emails and her to send them to him. In response, she again emailed the university officials and complained that management was trying to silence her. She also stated that she was a victim of discrimination and retaliation, which the university had not adequately addressed, and that her “work environment remains hostile.”

HR conducted a due-process meeting to discuss her emails, explaining that she had inappropriately bypassed her unit leadership in escalating the funding dilemma. Immediately after the meeting, she sought and was granted FMLA leave. That same afternoon, the director decided to fire her because of her emails. On April 23, she was advised she was being terminated based on “serious misconduct” that included discussing “private matters” regarding her unit and “sharing disparaging personal opinions” about her supervisors.

Lawsuit. She filed this lawsuit against IU trustees and several individuals alleging several claims under the Rehab Act and the FMLA. The court granted the defendants’ motion for summary judgment, and she appealed only the dismissal of her retaliation claims.

Causation standard. At the outset, the Seventh Circuit agreed with the employee that the district court mistakenly applied the “sole” causation standard for claims of discrimination under the Rehab Act rather than the more lenient but-for standard for a retaliation claim. Accordingly, the Seventh Circuit disregarded this legal error and reviewed the record under the correct causation standard.

Isolated remarks. The Seventh Circuit rejected the employee’s assertion that causation could be inferred from certain remarks that her group leaders made when they learned of her September 2020 FMLA leave and her list of requested accommodations. Significantly, the isolated remarks about the leave were expressed frustration over the lack of notice of her September 2020 medical leave and not the leave itself. “That’s a distinction with a difference.”

Her reliance on the negative reaction to her request for accommodations was similarly misplaced. Her manager commented that they seemed like a request for a “demotion” rather than an accommodation, but to acknowledge this concern did not suggest she deserved to be demoted or fired. And the director’s characterization of the list as “ridiculous” was a stray remark unrelated to his stated reason for firing her several months later—namely, her denigrating and unprofessional emails to top university leadership.

No causal connection. She also lacked evidence connecting the remarks to the decision to fire her months later. First, the director made the decision in collaboration with HR, and nothing suggested that either had her protected activity in mind. Further, her requests were favorably received and for the most part all granted, and her discrimination complaints were thoroughly investigated and found unsubstantiated. Given the entire record, no reasonable jury could infer that her protected activity caused her termination.

Manager not proper comparator. The Seventh Circuit also rejected her argument that a jury could infer pretext since another individual who allegedly helped her draft her original offending email faced no consequence. This purported comparator occupied a managerial role two levels above the employee, and thus was not similarly situated. “Moreover, it’s one thing to help draft an email” and “quite another to attach your name and hit send.”

Final complaint. The fact that she mentioned her prior complaints of discrimination and retaliation in the last of her emails also did not suggest pretext. These references “neither inoculates the conduct from discipline nor supports a reasonable inference that the discipline ultimately imposed was retaliatory,” stated the Seventh Circuit. “In the end, [she] ‘completely ignores the elephant in the room’: the highly inappropriate nature of her emails to [top IU officials].”

The case is No. 22-3212.

Judge: Sykes, D.

Attorneys: Matthew R. Gutwein (Delaney & Delaney) for Jennifer Shirk. Melissa Anne Macchia (Taft Stettinius & Hollister) for Trustees of Indiana University, Anna Lynch, Justin Zemlyak, and Peter Ermey.

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