Brown v. Automotive Components Holdings, LLC

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1641

L ETECIA D. B ROWN,

Plantiff-Appellant,

v.

A UTOMOTIVE C OMPONENTS H OLDINGS, LLC,

and F ORD M OTOR C OMPANY,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:06-cv-1802—Richard L. Young, Chief Judge.

A RGUED N OVEMBER 9, 2009—D ECIDED S EPTEMBER 8, 2010

Before E VANS and S YKES, Circuit Judges, and

D ER-Y EGHIAYAN, District Judge.Œ

S YKES, Circuit Judge. Letecia Brown, an assembly-line

worker at a Ford Motor Company plant in Indianapolis,

Œ

The Honorable Samuel Der-Yeghiayan of the United States

District Court for the Northern District of Illinois, sitting by

designation.

2 No. 09-1641

was terminated for being absent from work without

properly following Ford’s leave policies and proce-

dures. She filed suit for sex discrimination and retalia-

tory termination under Title VII and interference with

her rights under the Family and Medical Leave Act

(“FMLA”), 29 U.S.C. §§ 2601 et seq. The district court

dismissed her sex-discrimination claim, and Brown

voluntarily dismissed her retaliation claim, leaving

only the FMLA claim before the district court. The

court initially denied Ford’s motion for summary judg-

ment on this remaining claim, but Ford moved for re-

consideration, noting a factual misunderstanding in the

court’s summary-judgment decision. The court agreed

and reversed itself, entering summary judgment dis-

missing Brown’s FMLA claim. Brown appealed.

We affirm. Brown’s appeal addresses only the FMLA

claim, and summary judgment in favor of Ford on that

claim was entirely appropriate. The undisputed facts

establish that Brown was absent without leave after

failing to give proper FMLA notice for an extension of

a previously requested leave period. Specifically, under

the FMLA rules then in effect, Brown had two working

days in which to give Ford notice that she intended to

extend her leave, see 29 C.F.R. § 825.303(a) (2007), and

she failed to do so. Further, an employer is entitled to

adhere to its own leave policies and procedures when

doing so does not otherwise violate the FMLA. Ford’s

termination of Brown’s employment based on her non-

compliance with its internal leave procedures did not

violate the FMLA.

No. 09-1641 3

I. Background

In December 1998 Brown started working for Ford

at the Indianapolis Visteon Plant, where she held several

different assembly-line positions. As an hourly em-

ployee, Brown was subject to the leave policies of the

plant as modified by the Collective Bargaining Agree-

ment (“CBA”). Under the terms of the CBA, an em-

ployee seeking medical leave must have a doctor fill out

a form—called “Form 5166”—and return it to the plant’s

Medical Clinic by the date the leave is to expire. 1 If

the employee fails to return the form on time, she will

be “coded as AWOL.” 2 An employee seeking an exten-

sion of medical leave will also be deemed AWOL if

she does not return the form by the ending date of her

initial period of leave.3 In accordance with the CBA, once

1

Technically, the Clinic administers non-FMLA leave; em-

ployees seeking FMLA leave are to use a different procedure

administered through the plant’s Labor Relations office,

which determines whether the employee is entitled to FMLA

leave and whether the leave sought qualifies under the

FMLA. Brown did not invoke the company’s leave process

for FMLA-qualifying leave, but we need not resolve any

dispute on this issue for purposes of this appeal. Like the

district court, we will give Brown the benefit of the doubt

and treat her absence from work as qualifying FMLA leave.

2

Although the company’s internal leave procedures do not

spell it out, AWOL is an acronym commonly used for “absent

without leave” or “absent without official leave.”

3

The paperwork given to employees taking medical leaves

of absence states in part:

(continued...)

4 No. 09-1641

an employee has gone AWOL, she is sent a five-day

quit notice by registered mail. The quit notice states

that the employee will be terminated unless within five

working days she reports to work or explains in writing

or by phone the reason for the absence. If the employee

chooses to explain the absence over the phone, she must

request a “call-in code number.” Disputes regarding

the procedural requirements of the quit notice are sub-

ject to the United Auto Workers’ (“UAW”) grievance

procedures.

Brown went to the Clinic on August 11, 2006, to re-

quest medical leave and was given the Form 5166 leave

form. Her primary-care physician, Dr. Joyce Bilby, faxed

the completed form to the Clinic on August 21, stating

that the reason for the leave was “stress.” The form indi-

cated that her “return to work date” was August 29;

therefore, her leave was to expire on August 28.

While Brown was on leave, Dr. Bilby referred her to

Dr. James Shoot, a psychiatrist. However, the earliest

appointment Brown could get with Dr. Shoot was

August 29—the same day she was to return to work. To

cover the one-day extension of her leave, Brown sent a

3

(...continued)

You must submit a completed 5166 to justify your

medical condition prior to the ending date of your

medical leave. (This is also the case if an extension is

required beyond the current ending date). If this is not

done, your medical will be considered not justified &

you will be coded as AWOL.

(Emphasis added.)

No. 09-1641 5

fax to Dr. Bilby’s office on August 21, asking that addi-

tional paperwork be sent to the Clinic. She did not

follow up, however, and the Clinic never received a

leave form extending Brown’s leave request through

August 29.

Brown saw Dr. Shoot as scheduled on August 29,

at which time she was diagnosed with depression.

Dr. Shoot recommended that she rest and not return to

work until September 16 and scheduled a follow-

up appointment on September 11. Brown says that

she called the Clinic on August 30 and spoke with

Nurse Angela Diguilio. Ford has no record of this call. On

Brown’s version of events, she told Diguilio that her

doctor had extended her leave to September 16, and the

nurse said she would place a leave form at the Clinic

for Brown to pick up.

Brown did not immediately do so, and because she

had not submitted a Form 5166 extending her leave

through August 29, her leave expired as scheduled on

August 28. On August 31 Ford sent a quit notice to

Brown via certified mail, informing her that she would

be terminated unless she reported to work within

five business days or provided proper verification of

her illness. Brown’s union representative also sent her

a copy of the quit notice by certified mail on August 31.

Brown did not pick up either of these letters until after

she was terminated, though she admits she knew there

was certified mail waiting for her at the post office.

On September 6 Brown went to the Clinic and spoke

with Nurse Irene Rice. Brown showed Rice a hand-

6 No. 09-1641

written note from Dr. Shoot stating, “This person will

require a medically excused absence from work until

9/16/06.” Rice then gave her a leave form to fill out,

and Brown left with the form and Dr. Shoot’s note in

hand. Brown also claims that she called the Clinic some-

time after September 6 and spoke with a nurse. Ac-

cording to Brown, she informed the nurse that she could

not return a completed leave form until September 11

because she was not going to see her doctor until then.

She says the nurse told her to “[j]ust get the paperwork

in as soon as possible.”

Brown had her follow-up appointment with Dr. Shoot

on September 11, and that same day she learned she

had been terminated. On September 12 Brown faxed a

completed leave form to the Clinic. The following

day, September 13, the UAW filed a grievance on her

behalf, but later withdrew it because Brown had not

followed the plant’s leave procedures. Brown then

filed this suit against Ford, Automotive Components

Holdings, LLC, and Visteon Corporation for sex dis-

crimination and retaliatory discharge under Title VII

and interference with her FMLA rights. The district

court dismissed the sex-discrimination claim and

also dismissed Visteon Corporation as a defendant.3

3

Visteon Corporation is no longer a defendant in this action,

although both parties list it as a Defendant/Appellee in their

briefs. During the events at issue, Automotive Components

Holdings, LLC, owned Ford’s Indianapolis plant, having

acquired it from Visteon in 2005. The district court dismissed

(continued...)

No. 09-1641 7

Responding to Ford’s motion for summary judgment,

Brown voluntarily dismissed her retaliation claim,

leaving only the FMLA claim before the district court.

The court initially denied Ford’s summary-judgment

motion on this claim, finding material facts in dis-

pute. The court assumed that Brown’s leave was FMLA-

qualifying, but held there were material facts in dispute

regarding whether Brown had a serious medical condi-

tion and whether she had provided Ford with sufficient

notice of her intent to take FMLA leave. The court also

held, however, that Brown’s August 30 phone call to

Diguilio provided sufficient notice of her intent to

extend her FMLA leave because it occurred within two

working days of the expiration of her initial leave on

August 28, as required by FMLA regulations.

Ford filed a motion for reconsideration, arguing that

the court had committed a manifest error in calculating

the two-day notice period for an extension of Brown’s

leave from August 28, the day Brown’s initial leave

was scheduled to expire. Ford pointed out to the court

that the FMLA regulations in effect at that time pro-

vided that employees must give notice “within no more

than one or two working days of learning of the need for

3

(...continued)

Visteon from the case in an order dated November 1, 2007.

Despite naming Visteon in the case caption of their briefs,

both parties make clear that the only remaining defendants

in this appeal are Ford and Automotive Components

Holdings, LLC (collectively “Ford”).

8 No. 09-1641

leave”—not within two working days of the expiration

of leave.4 29 C.F.R. § 825.303(a) (2007) (emphasis

added). Ford noted that Brown had learned on Au-

gust 21 that she would need to extend her leave

because her appointment with Dr. Shoot was on

August 29, the day she was supposed to return to

work. Even assuming that Brown had a qualifying

medical condition and provided sufficient notice of her

initial need for leave, Ford argued that the FMLA reg-

ulations required her to provide notice within two

working days of August 21—not August 28, as assumed

by the court—of her need for an extension. To the

extent that the court had relied on Brown’s August 30

phone call as a valid notice of an extension of her

leave, Ford maintained that the denial of its motion for

summary judgment was in error. The district court

agreed and granted summary judgment in favor of

Ford dismissing the FMLA claim. Brown appealed.

4

The “within no more than one or two working days”

language of § 825.303(a) was removed in 2009. The section

now reads: “It generally should be practicable for the em-

ployee to provide notice of leave that is unforeseeable within

the time prescribed by the employer’s usual and customary

notice requirements applicable to such leave.” 29 C.F.R.

§ 825.303(a) (2009). We apply the regulations contem-

poraneous with the events in question, which in this case is

the 2007 regulations. (The 2007 regulations came into effect

June 31, 2006.)

No. 09-1641 9

II. Discussion

We review the district court’s grant of summary judg-

ment de novo, construing all facts and inferences in

favor of the nonmoving party. Simpson v. Office of Chief

Judge of Circuit Court, 559 F.3d 706, 711-12 (7th Cir.

2009). The FMLA permits eligible employees to take

12 workweeks of leave within a 12-month period if a

serious health condition renders them unable to

perform their job function. 29 U.S.C. § 2612(a)(1)(D). To

protect these rights, the FMLA provides that an

employer may not “interfere with, restrain, or deny

the exercise of or the attempt to exercise, any right pro-

vided [by the Act].” Id. § 2615(a).

To prevail on an FMLA-interference claim, an em-

ployee must demonstrate that: (1) she was eligible for

FMLA protection; (2) her employer was covered by the

FMLA; (3) she was entitled to FMLA leave; (4) she pro-

vided sufficient notice of her intent to take leave; and

(5) her employer denied her benefits to which she was

entitled. Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir.

2009). For an extension of unforeseeable FMLA leave,

as is the case here, the regulations in effect at the time

state in relevant part:

When the approximate timing of the need for leave

is not foreseeable, an employee should give notice

to the employer of the need for FMLA leave as soon

as practicable under the facts and circumstances of

the particular case. It is expected that an employee

will give notice to the employer within no more than

one or two working days of learning of the need for leave,

10 No. 09-1641

except in extraordinary circumstances where such

notice is not feasible.

29 C.F.R. § 825.303(a) (2007) (emphasis added).

The district court was right to correct itself and grant

summary judgment in favor of Ford based on this reg-

ulation and the undisputed facts about when Brown

learned of her need to extend her leave. The court’s

first ruling improperly calculated the triggering date

for notice to extend FMLA leave as August 28—the day

Brown’s initial leave was to expire. But the regulations

are clear that notice of an unforeseeable need for

leave—including an unforeseeable extension of med-

ical leave—must be given within two working days of

“learning of the need for leave,” id., not two working

days of the expiration of leave. The correct triggering

date here was therefore August 21—the day Brown

learned she would need to extend her leave because

she had a doctor’s appointment on August 29, the day

she was scheduled to return to work. By not contacting

Ford within two working days of August 21, Brown

failed to provide notice of her need to take FMLA leave,

or in this case, to extend her FMLA leave. In fact,

Brown did not contact Ford until August 30, which was

well outside of the two-day window calculated from

August 21. Without the appropriate notice under the

FMLA regulations, Brown failed to make out a prima

facie case of FMLA interference.

Though we could end our analysis here, we note for

completeness that Ford was well within its rights (at

least for FMLA purposes) to terminate Brown’s employ-

No. 09-1641 11

ment according to its standard leave procedures. FMLA

regulations specifically provide that an employer may

require employees “to comply with the employer’s usual

and customary notice and procedural requirements for

requesting leave, absent unusual circumstances.” Id.

§ 825.302(d); see Gilliam v. United Parcel Serv., Inc., 233

F.3d 969, 972 (7th Cir. 2000) (“Nothing in the FMLA or

the implementing regulations prevents an employer

from enforcing a rule requiring employees on FMLA

leave to keep the employer informed about the em-

ployee’s plans.”). In Gilliam we held that an employer

does not violate the FMLA by terminating an employee

who fails to follow the notice provisions of a collective-

bargaining agreement. 233 F.3d at 971. The plaintiff in

that case had requested leave for one day to see his

fiancée and newborn child, and his employer granted

the request. Id. at 970. But he did not contact his

employer again until five days later. Id. He was then

fired for violating the employer’s notice procedures for

leaves of absence, which required anyone who failed to

report to work for three consecutive days to notify the

company before starting time on the third day. Id.; see

also Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 710

(7th Cir. 2002) (no FMLA violation where employee

was terminated for failure to comply with company’s

attendance policy). We observed in Gilliam that the

FMLA does not “authorize employees on leave to keep

their employers in the dark about when they will re-

turn.” Gilliam, 233 F.3d at 971.

Here, just as in Gilliam, Brown was terminated for

being AWOL after failing to comply with the notice

12 No. 09-1641

procedures specified in the CBA. Specifically, Brown

was sent a quit notice on August 31, and she failed to

comply with that notice’s requirements that she either

report to work or explain her absence in person or by

phone within five days.5 Brown did not even pick up

the quit notice until September 12—the day after she

was fired pursuant to the terms of the CBA. When

Brown did not report to work on August 29 as contem-

plated by the only proper leave request form the com-

pany had on file for her, Ford was entitled to proceed

with its normal AWOL procedures, including the five-

day quit notice. Her termination in accordance with

these procedures is not in any way an interference with

her FMLA rights.

Brown raises three new arguments in this court to

overturn the district court’s ruling. Arguments not

raised in the district court are considered waived on

appeal, see Econ. Folding Box Corp. v. Anchor Frozen Foods

Corp., 515 F.3d 718, 720 (7th Cir. 2008), but Brown’s

5

Ford deemed Brown’s alleged phone call on August 30 to be

insufficient because she did not receive a “call-in code num-

ber” per normal leave procedures. Whether Brown’s

August 30 phone call was sufficient to satisfy Ford’s notice

requirements is a question for a labor arbitrator and does

not affect our analysis of the FMLA claim. See Gilliam v.

United Parcel Serv., Inc., 233 F.3d 969, 971 (7th Cir. 2000) (noting

that the interpretation of the details of a company’s internal

leave procedures is a “subject for a labor arbitrator, not a

court”). As we have noted, Brown’s union has withdrawn

a grievance on her behalf.

No. 09-1641 13

new arguments would fail even if they had not been

waived. She contends that she complied with the

FMLA regulations because she provided notice for her

FMLA leave extension “as soon as practicable under

the facts and circumstances of the particular case.” 29

C.F.R. § 825.303(a) (2007). This ignores that the regula-

tions specifically contemplate that in the ordinary case,

notice will be given “within no more than one or two

working days of learning of the need for leave, except

in extraordinary circumstances where such notice

is not feasible.” Id. Brown has not established that it

was impracticable or infeasible to give notice within

two working days of August 21, and whether she sub-

jectively believed it was “more practicable” to wait

until August 30 to notify Ford of her need for an exten-

sion is beside the point.6

Second, Brown argues that Ford’s five-day quit notice

was an explicit waiver of its right to rely on the “one or

two working days” notice provision of the FMLA. For

support Brown points to a provision in the regulations

explaining that “[a]n employer may waive employees’

FMLA notice obligations or the employer’s own internal

rules on leave notice requirements.” Id. § 825.304(a). The

employer’s establishment of internal notice procedures,

6

We also reject the assertion that Brown did not know on

August 21 that she would need additional leave. Her leave

form clearly indicated that her return to work date was

August 29. Brown knew as of August 21 that she could not

get an appointment with Dr. Shoot until August 29, neces-

sitating an extension of at least a day.

14 No. 09-1641

however, does not operate as an automatic waiver of

FMLA notice obligations. To the contrary, the regula-

tions expressly permit employers to require compliance

with their “usual and customary notice and procedural

requirements for requesting leave,” id. § 825.302(d), and

our circuit has recognized an employer’s right to

terminate employees on this basis, see Lewis, 278 F.3d at

710; Gilliam, 233 F.3d at 971. That Ford’s internal pro-

cedures gave Brown a five-day grace period before ter-

mination has no effect on FMLA notice requirements.

We also reject Brown’s related argument that by

failing to terminate her immediately on the day she

went AWOL (August 29), Ford waived its right to rely

on the FMLA provisions governing notice. As we have

already explained, nothing in the FMLA prevented

Ford from using its own internal leave procedures, and

under the CBA Ford could not fire Brown immediately

as of August 29. The CBA’s quit-notice process entitled

her to five days’ notice and an opportunity to either

return to work or provide proper notice of her leave

within that grace period. Only noncompliance at the

end of that period was grounds for termination under

the CBA.

Finally, Brown argues that her August 30 phone call

to Nurse Diguilio was a request for a new FMLA leave,

rather than an extension of her initial FMLA leave.

Under this theory she would have had 15 days to pro-

vide Ford with medical certification of the need for the

leave, see 29 C.F.R. § 825.308(d) (2007), and she believes

that she complied with this requirement by faxing the

No. 09-1641 15

completed leave form to the Clinic on September 12.

Brown does not explain, however, why the August 30

phone call should be construed as a request for new

leave as opposed to an extension of her initial leave.

She did not return to work at the end of her initial

leave period and was in fact suffering from the same

medical condition that kept her out of work in the first

place. In any event, whether we characterize the addi-

tional leave as an “extension” or as a “second” leave,

the result is the same. In each case Brown needed to

comply with the FMLA regulations, which required

her to give notice within two working days of learning

of the need for leave. Labeling it as “second” leave

does not change the fact that the triggering date for

FMLA notice was August 21, and Brown failed to

notify Ford within two working days of that date.

A FFIRMED.

9-8-10