Melissa Myers v. Sunman-Dearborn Community Schools

In the

United States Court of Appeals

for the Seventh Circuit

____________________

No. 22-1966

MELISSA MYERS,

Plaintiff-Appellant,

v.

SUNMAN-DEARBORN COMMUNITY

SCHOOLS and KELLY ROTH,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, New Albany Division.

No. 4:20-cv-00049-SEB-DML — Sarah Evans Barker, Judge.

____________________

ARGUED JANUARY 12, 2023 — DECIDED JULY 1, 2025

____________________

Before SYKES, Chief Judge, and EASTERBROOK and RIPPLE,

Circuit Judges.

SYKES, Chief Judge. For many years Melissa Myers served

as an instructional aide at an elementary school in the Sun-

man-Dearborn Community Schools. When her husband

died, grief disrupted her work, so she took a leave of ab-

sence under the Family and Medical Leave Act (“FMLA”) at

the end of the 2017–2018 school year. Myers returned to

2 No. 22-1966

work for the 2018–2019 school year, but in the first two

months she accumulated absences exceeding the limit of her

paid leave days. She had also exceeded her allotted leave

time in the 2017–2018 school year before taking FMLA leave.

The school principal warned Myers that she needed to

improve her attendance or face the prospect of termination.

Myers resigned and then sued the school district and the

principal alleging violations of her rights under the FMLA,

the Americans with Disabilities Act (“ADA”), and the

Fourteenth Amendment’s Equal Protection Clause. The

district court entered summary judgment for the defendants.

Myers appealed, but she lacks evidence to support any

viable theory of relief. She was neither eligible nor had a

condition qualifying for FMLA leave in the weeks preceding

her resignation, and she did not give the school district

notice that she intended to take statutory leave. She tries to

recast her claim as one for “anticipatory retaliation,” but that

theory fails for similar reasons: she has no evidence that she

could or would take FMLA leave at the start of the 2018–

2019 school year, and the evidence is insufficient to show

that the principal punished her for taking leave the year

before. The ADA claim cannot succeed because Myers was

not subjected to an adverse employment action. She argues

that she suffered a constructive discharge, but her working

conditions were not objectively intolerable and termination

was neither imminent nor unavoidable. The equal-protection

claim likewise fails for lack of proof. We therefore affirm.

I. Background

From 2001 until her resignation in the fall of 2019, Myers

was employed as an instructional aide at Bright Elementary

No. 22-1966 3

School in the Sunman-Dearborn Community Schools in

southeastern Indiana. By all accounts her employment was

trouble free until the 2017–2018 school year. In May 2017

Myers’s husband died unexpectedly. Her mother, who had

lived with Myers and her husband, had died two years

earlier, and Myers struggled with depression from the

combined effect of her losses. For these and other reasons,

she was absent 25.5 days during the 2017–2018 school year—

14.5 days more than the 8 paid sick days and 3 paid personal

days that she was entitled to each year. Myers eventually

applied for FMLA leave, which was approved from March 1

to April 16, 2018, and then extended through the end of the

school year.

Myers returned to work at the start of the 2018–2019

school year, but her absences again piled up. By the begin-

ning of November—a little over two months into the school

year—she had used all 11 of her paid leave days and an

additional 6 days of unpaid leave. She attributes these

absences to bouts of pneumonia, bronchitis, and strep throat.

At the beginning of that school year, Kelly Roth became

the principal at Bright Elementary. Myers claims that when

the two met on the first day of school in August 2018, Roth

remarked, “Oh, … you’re Missy Myers, I’ve heard a lot

about you, you have problems at home.” Myers claims that

in the weeks that followed, Roth encouraged her to seek

counseling and once suggested that she should consider

leaving Bright Elementary and instead open her own craft

business. Myers also claims that she twice found a brochure

for counseling services in her school mailbox. Roth insists

that she did not place the brochures there but admits that

she mailed an Employee Assistance Program pamphlet to

4 No. 22-1966

Myers because she had suffered a tragic event and Roth

believed that the program offered helpful resources to

employees.

The issue of Myers’s frequent absences came to a head in

November. Myers claims that Roth approached her in the

hallway on Friday, November 9, and said “in a harsh tone”:

“If you miss one more day, I’m going to terminate you.”

(Recall that by this point Myers had exceeded her paid-leave

allotment by 6 days.) Myers also contends, however, that

Roth promised not to write her up for her previous absences.

Despite that assurance, on the following Monday—

November 12—Roth issued the following written warning to

Myers:

I am writing to express my concern regarding

your excessive absences at work. According to

my documentation, you missed 14.5 days, in

addition to the allotted 11 sick and 3 personal

days (totaling 25.5 days) in the 2017-2018

school year.1 You have missed your allotted

8 sick and 3 personal days, and an additional

6 unpaid days (totaling 17 days) to date in the

2018-2019 school year. Your position is a valua-

ble asset to student learning. Because of this, I

expect to see a drastic improvement in attend-

ance or you will be at risk of termination due

to excessive absences.

1 The warning incorrectly states that Myers exceeded the school district’s

allotted 11 paid sick days instead of the allotted 8 paid sick days and 3

paid personal days—for a total of 11 days of approved paid leave.

No. 22-1966 5

Myers resigned the next day. In February 2020 she sued

the Sunman-Dearborn Community Schools and Kelly Roth

alleging that they interfered with her FMLA rights and

discriminated against her under the ADA. She also brought

a claim under 42 U.S.C. § 1983 alleging that the defendants

violated her Fourteenth Amendment right to equal protec-

tion.

Following discovery, the defendants moved for summary

judgment on all claims. The district judge granted the mo-

tion, explaining that Myers’s claim for interference with her

FMLA rights failed because she did not have a condition

entitling her to FMLA leave nor had she notified school

officials of her intent to take such leave. Myers argued in the

alternative that her FMLA interference claim could be con-

strued as one for “anticipatory retaliation.” The judge rea-

soned that any retaliation theory also failed because the

evidence did not suggest that Roth had reason to believe that

Myers would use FMLA leave or punished her for her use of

FMLA leave the year before. Turning to the ADA claim, the

judge explained that the evidence was insufficient to show

that Myers was constructively discharged. And the equal-

protection claim could not proceed because Myers had not

identified any similarly situated school employee who was

treated more favorably. The judge accordingly entered

summary judgment for the defendants across the board.

II. Discussion

We review the summary judgment de novo, construing

the evidence in the light most favorable to Myers as the

nonmoving party. Trahanas v. Nw. Univ., 64 F.4th 842, 852 (7th

Cir. 2023). Summary judgment is appropriate when the

material facts are undisputed and the moving party is

6 No. 22-1966

entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).

Not all factual disputes are material: to defeat an opponent’s

motion for summary judgment, the nonmoving party must

produce sufficient evidence to permit a jury to return a

verdict in his favor on the essential elements of his claim.

Moran v. Calumet City, 54 F.4th 483, 491 (7th Cir. 2022).

Myers argues that she produced enough evidence to pro-

ceed to a jury trial on each of her claims. We disagree.

A. FMLA Claim

The FMLA entitles an eligible employee to take up to

12 weeks of leave from work each year “[b]ecause of a

serious health condition that makes the employee unable to

perform the functions of the position.” 29 U.S.C.

§ 2612(a)(1)(D). An employer may not “interfere with, re-

strain, or deny the exercise of or the attempt to exercise” any

FMLA rights. Id. § 2615(a)(1). Retaliation for exercising

FMLA rights is also prohibited. See id. § 2615(a)(2); see also

Juday v. FCA US LLC, 57 F.4th 591, 595 (7th Cir. 2023). An

interference claim requires proof that the employer inter-

fered with, restrained, or denied an employee’s exercise of

FMLA rights to which he was entitled; proof of discriminato-

ry intent is not necessary. Id. “A retaliation claim, in contrast,

‘requires proof of discriminatory or retaliatory intent.’” Id.

(quoting Nicholson v. Pulte Homes Corp., 690 F.3d 819, 825 (7th

Cir. 2012)).

Myers does not always clearly distinguish between her

interference and retaliation theories of liability. Her argu-

ments overlap and sound in both theories. She claims that

Roth’s threat to fire her if she continued to miss work and

the subsequent written warning prevented her from apply-

No. 22-1966 7

ing for future FMLA leave. She also contends that Roth

issued the warning in “anticipatory retaliation” for any

future leave-taking or in retaliation for her use of leave

during the 2017–2018 school year.

To prevail on a claim for interference with her FMLA

rights, Myers had the burden to establish the following five

elements: (1) she was eligible for FMLA protection; (2) her

employer was covered by the FMLA; (3) she was entitled to

take leave under the FMLA; (4) she provided sufficient

notice of her intent to take leave; and (5) her employer

“interfered with, restrained, or denied FMLA benefits to

which he was entitled.” Ziccarelli v. Dart, 35 F.4th 1079, 1089

(7th Cir. 2022). Myers’s evidence falls far short of establishing

these elements.

Start with eligibility: the FMLA defines an “eligible em-

ployee” as “an employee who has been employed … for at

least 12 months by the employer” and who has “at least

1,250 hours of service with such employer during the previ-

ous 12-month period.” 29 U.S.C. § 2611(2)(A). We’ve ex-

plained that “the statutory text is perfectly clear”: FMLA

leave rights are “conferred only on employees who have

worked at least 1,250 hours in the previous 12 months.”

Pirant v. U.S. Postal Serv., 542 F.3d 202, 206 (7th Cir. 2008)

(internal quotation marks omitted). Although Myers had

been employed by the school district for many years, she

worked only 705 hours in the 12-month period prior to

Roth’s oral and written warnings. Indeed, Myers concedes

her noneligibility, acknowledging that “she had not applied

for FMLA nor was she eligible for FMLA” when she resigned.

(Emphasis added.)

8 No. 22-1966

That defeats her claim. In the interest of completeness,

however, we note that Myers also failed to show that she had

a serious health condition entitling her to take FMLA leave.

§ 2612(a)(1)(D). The FMLA defines a “serious health condi-

tion” as “an illness, injury, impairment, or physical or mental

condition that involves … inpatient care in a hospital, hos-

pice, or residential medical care facility[,] or … continuing

treatment by a health care provider.” § 2611(11). Myers had

previously struggled with depression after the deaths of her

mother and husband, but she does not claim that this condi-

tion interfered with her ability to work during the 2018–2019

school year. On the contrary, she agrees that she had recov-

ered well enough to return to work at the start of the 2018–

2019 school year and instead attributes her frequent absences

to discrete bouts of pneumonia, bronchitis, and strep

throat—in addition to “a low immune system,” thyroid

disease, and arthritis. She has made no effort, however, to

connect these illnesses to the statutory standard for a quali-

fying health condition.

Finally, there is no evidence that Myers gave the school

district notice of her intent to take FMLA leave. Myers points

to the fact that she called in sick multiple times and some-

times supplied doctor’s notes. But merely calling in sick “is

insufficient to put the employer on notice that the employee

may qualify for FMLA leave.” Lutes v. United Trailers, Inc.,

950 F.3d 359, 366 (7th Cir. 2020). And the doctor’s notes were

nothing more than generic templates asking the school

district to “[p]lease excuse Melissa L. Myers … from

work/school” and stating that she had “[n]o limitations” on

activity. None of these notes even hinted that Myers might

need FMLA leave. See de la Rama v. Ill. Dep’t of Hum. Servs.,

541 F.3d 681, 687 (7th Cir. 2008) (explaining that notice is not

No. 22-1966 9

sufficient under the FMLA “if the [doctor’s] note does not

convey the seriousness of her medical condition”).

As we’ve noted, Myers tries to recast her FMLA claim

under a theory of “anticipatory retaliation.” A retaliation

claim generally requires proof that the plaintiff engaged in

FMLA-protected activity and that the employer acted with

discriminatory or retaliatory intent. Nicholson, 690 F.3d at

828. We have not explicitly endorsed a theory of “anticipa-

tory retaliation” in this context. That makes sense: an FMLA

interference claim provides employees with a cause of action

against employers who “interfere with, restrain, or deny the

exercise of or the attempt to exercise” their statutory rights.

See Ziccarelli, 35 F.4th at 1084.

Even if the concept of “anticipatory retaliation” is a dis-

tinct and viable theory of FMLA liability (an issue we do not

decide today), Myers has no claim. To repeat, she has not

shown that she either could or intended to use FMLA leave

when Roth warned her to improve her attendance. And to

the extent that Myers’s retaliation theory rests on a claim that

she was constructively discharged, her evidence is woefully

insufficient for reasons we will explain next in connection

with our analysis of the ADA claim.

B. ADA Claim

The ADA prohibits employers from discriminating

against “a qualified individual on the basis of disability.” 42

U.S.C. § 12112(a). To prevail on her ADA claim, Myers had

the burden to prove that that “(1) she is disabled; (2) she is

otherwise qualified to perform the essential functions of the

job with or without reasonable accommodation; (3) she

suffered an adverse employment action; and (4) the adverse

10 No. 22-1966

action was caused by her disability.” Brooks v. Avancez, 39

F.4th 424, 433 (7th Cir. 2022). Myers does not argue that she

was disabled in the fall of 2018 when Roth warned her to

improve her attendance; she argues instead that Roth im-

permissibly “regarded” her as disabled, which is an alterna-

tive basis for ADA liability. 42 U.S.C. § 12102(1)(C). And

because the school district did not fire her—she resigned—

the ADA claim rests on a theory of constructive discharge.

It’s on this last point that Myers’s claim is most obviously

deficient.

“Under the constructive discharge doctrine, an employ-

ee’s reasonable decision to resign because of unendurable

working conditions is assimilated to a formal discharge for

remedial purposes.” Pa. State Police v. Suders, 542 U.S. 129,

141 (2004). In Suders the Supreme Court framed the doctrine

succinctly: “The inquiry is objective: Did working conditions

become so intolerable that a reasonable person in the em-

ployee’s position would have felt compelled to resign?” Id.

As the Court explained, if a plaintiff is subjected to severe or

pervasive unlawful harassment in the workplace—in Suders

it was sexual harassment—and the hostile environment

creates such intolerable working conditions that a reasonable

person would feel compelled to resign, then the plaintiff’s

resignation amounts to a constructive discharge, which “is

functionally the same as an actual termination.” Id. at 147–

48.

Our cases sometimes refer to two forms of constructive

discharge, “but neither dispenses with the requirement that

the work environment had become intolerable.” Chapin v.

Fort-Rohr Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010). The

first form involves an employee who resigns in response to

No. 22-1966 11

unlawful discriminatory harassment; these cases require

evidence of working conditions “even more egregious than

that required for a hostile work environment claim because

employees are generally expected to remain employed while

seeking redress, thereby allowing an employer to address a

situation before it causes the employee to quit.” Id. (citation

omitted).2 This understanding of constructive discharge

aligns with Suders.

We have also said, however, that “[w]hen an employer

acts in a manner so as to have communicated to a reasonable

employee that she will be terminated, and the plaintiff

employee resigns, the employer’s conduct may amount to

constructive discharge.” EEOC v. Univ. of Chi. Hosps., 276

F.3d 326, 332 (7th Cir. 2002); see also Chapin, 621 F.3d at 679.

Importantly, however, we have emphasized that this form of

constructive discharge “does not eliminate the need for the

plaintiff to show that his working conditions had become

intolerable.” Id. at 679. Indeed, retaining the requirement of

objectively intolerable working conditions is necessary to

2 Myers argues on appeal that the district judge “overlooked” her

standalone claim against the defendants for subjecting her to a hostile

work environment. Not so. Myers never mentioned such a claim below;

rather, her only reference to a “hostile work environment” in her sum-

mary-judgment brief was to describe the test for constructive discharge.

We have squarely rejected attempts to raise claims of a hostile work

environment for the first time on appeal. See, e.g., Hackett v. City of South

Bend, 956 F.3d 504, 509 (7th Cir. 2020) (explaining that the conduct

underlying a retaliation claim and a hostile-environment claim may

overlap in the employment-discrimination context, but “the[y] are

legally distinct theories” and “a plaintiff needs to spell out these distinct

theories separately” to give “the district judge fair notice that the theory

is being asserted”).

12 No. 22-1966

conform to the Supreme Court’s articulation of the doctrine

in Suders. Moreover, an employee’s working conditions do

“not become intolerable or unbearable merely because a

‘prospect of discharge lurks in the background.’” Id. (quot-

ing Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 333 (7th

Cir. 2004)).

Properly understood, the constructive-discharge doctrine

does not help Myers here. No evidence suggests that she

suffered serious or persistent harassment based on an actual

or perceived disability, much less that her working condi-

tions were objectively intolerable. Her anodyne and infre-

quent run-ins with Roth do not suffice under the objective

test. Nor is there sufficient evidence to establish that Myers

“immediately and unavoidably [would] be terminated,”

Ziccarelli, 35 F.4th at 1091 (quotation marks omitted). She

risked being fired if she did not improve her attendance, but

that does not amount to an imminent and unavoidable

termination. Because the evidence falls far short of what’s

needed to establish a constructive discharge, Myers’s ADA

claim fails.

C. Equal-Protection Claim

We close by briefly addressing Myers’s equal-protection

claim, which never really got off the ground because she

produced no evidence that she was treated differently from

others similarly situated. See Smith v. City of Chi., 457 F.3d

643, 650–51 (7th Cir. 2006) (outlining the requirements for a

plaintiff to prove an equal-protection claim). Myers made no

effort to identify any similarly situated employee who was

treated more favorably. Instead, she relied entirely on Roth’s

deposition testimony in which she was asked if other in-

structional aides ever exceeded their allotted sick days. Roth

No. 22-1966 13

replied: “Yes, you’ll have that. In administration, I’ve seen

that happen. They’ll go a few days over, but it’s not typical to

run out of days in October.” That’s far from sufficient to

satisfy Myers’s burden on the constitutional claim.3

AFFIRMED

3 In a final argument, Myers raises a brief procedural challenge to the

district judge’s decision to strike portions of her surreply to the defend-

ants’ summary-judgment motion. Under the district court’s Local Rule

56-1(d) “[a] party opposing a summary judgment motion may file a

surreply brief only if the movant cites new evidence in the reply or objects to

the admissibility of the evidence cited in the response. The surreply …

must be limited to the new evidence and objections.” (Emphases added.) As

we have said many times, “district courts may require strict compliance

with their local rules.” Hinterberger v. City of Indianapolis, 966 F.3d 523, 528

(7th Cir. 2020). District judges have wide latitude to interpret and apply

their local rules in individual cases; our review is highly deferential, for

abuse of discretion only. Id. There was no abuse of discretion here. The

judge applied the local rule and made a reasonable judgment about

which portions of Myers’s surreply did not conform to its terms.