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Litigants who prevail at summary judgment must be cautious at the appellate level. While it is tempting for counsel to portray the facts in their client’s best interests, federal appellate precedent is very clear that this is a bad idea. That lesson was reflected by the recent Seventh Circuit decision of Ziccarelli v. Sheriff Thomas Dart, No. 19-3435. The case boiled down to a “he said-she said” dispute over whether the plaintiff, Ziccarelli, was discouraged by his employer from exercising his FMLA rights. The Seventh Circuit ultimately held that an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without actually denying an FMLA leave request.

As for the procedural context, Ziccarelli’s account of his conversation with the Sheriff’s Office employee differed starkly from the employee’s. In reviewing a grant of summary judgment, the appellate court must credit Ziccarelli’s account, leaving factual disputes for a jury. But the Sheriff argued in his appellate brief that there was no factual dispute by relying on the employee’s version of events. This, despite Ziccarelli directly contradicting her version. This prompted a reversal of the summary judgment and a scolding from the Seventh Circuit: “our precedent demands more of the moving party at summary judgment.” Thus, Ziccarelli is a reminder for appellate litigants to resist the urge to shade the facts in their favor when the rules prohibit them from doing so.

The decision can be read here.

About the Author
Christopher Keleher clerked for the Hon. William J. Bauer of the U.S. Court of Appeals for the Seventh Circuit.  This unique opportunity provided Mr. Keleher with an invaluable understanding of the inner workings of an appellate court.  He saw what persuades judges and what does not, and utilizes this knowledge every time he writes an appellate brief. The Keleher Appellate Law Group handles all phases of appellate litigation in federal and state courts across the country. Read more here.