Righi v. SMC Corp.

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1775

R OBERT R IGHI,

Plaintiff-Appellant,

v.

SMC C ORPORATION OF A MERICA,

a corporation, and L OUIS K ING,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 1:07-cv-1064—Joe Billy McDade, Judge.

A RGUED S EPTEMBER 23, 2009—D ECIDED F EBRUARY 14, 2011

Before F LAUM, W OOD , and SYKES, Circuit Judges.

S YKES, Circuit Judge. Robert Righi was employed as

a sales representative for SMC Corporation in the com-

pany’s Aurora, Illinois office. While at a mandatory

training seminar in Indianapolis, he learned that his

elderly mother was experiencing a medical emergency.

He left the seminar and returned to Illinois to assess

his mother’s situation. The next day, he e-mailed his

2 No. 09-1775

supervisor to explain that he needed “the next couple

days off” to make arrangements for his mother’s care;

he said in his e-mail that he had vacation time available

or “could apply for the family care act, which I do not

want to do at this time.” Righi’s supervisor then tried

for more than a week to reach him by telephone to

clarify his request for leave. Righi did not return these

calls or otherwise contact his employer. When he finally

returned to work nine days after leaving the training

session, he was fired for violating SMC’s leave policy.

Righi sued SMC and his supervisor alleging violations

of the Family and Medical Leave Act (“FMLA”), 29 U.S.C.

§§ 2601 et seq. The district court entered summary judg-

ment for the defendants on two separate grounds:

(1) Righi was not entitled to FMLA protection because

his e-mail specifically disavowed any intent to use

FMLA leave; and (2) even assuming Righi’s e-mail

invoked the FMLA, he failed to notify SMC of his antici-

pated return-to-work date—as required by company

policy and applicable FMLA regulations—and he

ignored his supervisor’s repeated phone calls seeking

more information about his leave request.

We affirm, though on the latter ground only. Righi’s

e-mail, read in his favor, allows an inference that he

was leaving at least some room to change his mind and

use FMLA leave rather than vacation time to cover his

absence. But the FMLA’s regulations place the burden

on the employee to notify his employer of the anticipated

duration of unforeseeable leave “as soon as practicable,”

which under the regulations then in effect meant “no

No. 09-1775 3

more than one or two working days of learning of the

need for leave.” 29 C.F.R. §§ 825.302(b) and (c), 825.303(a)

(2007). Moreover, an employer is entitled to enforce

compliance with its “usual and customary notice and

procedural requirements” regarding FMLA leave. Id.

§ 825.302(d) (2007). Because Righi failed to comply with

the applicable regulatory and workplace requirements

for family leave, his termination did not violate the FMLA.

I. Background

Robert Righi was employed as a sales representative

for SMC from 2004 until July 20, 2006, when he was fired

for violating the company’s leave policy.1 Throughout

his employment, Righi was assigned to SMC’s Aurora

office but was permitted to work primarily out of his

home in Henry, Illinois, where he lived with his elderly

mother, Ann Righi, and his roommate Chuck Purtscher.

Ann Righi was an insulin-dependent diabetic suffering

from a heart condition and was often in need of medical

attention.

Although Righi usually worked from home, he was

expected to work 40 to 50 hours per week and to check in

with his sales manager Louis King on a daily basis.2 Righi

and King typically communicated via Righi’s company-

issued cell phone or by e-mail. Occasionally, when King

1

SMC manufactures pneumatic automation products and

has offices throughout the United States.

2

Righi also attended biweekly meetings at SMC’s Aurora office.

4 No. 09-1775

could not reach Righi on his cell phone, King would

contact Righi on his home telephone or on the cell phone

belonging to Purtscher.

On several prior occasions, Righi needed vacation

time in order to care for his mother. He often e-mailed

King to request this leave. SMC policy required em-

ployees to obtain prior approval from a supervisor

before taking leave. SMC’s attendance policy also stated

that a “[f]ailure to report for work for two (2) consecutive

days without notifying your supervisor” is grounds for

termination.3 On these prior occasions, Righi complied

with company policy whenever he needed leave.

From July 9, 2006, to July 21, 2006, Righi was scheduled

to attend a mandatory two-week training session in

Indianapolis. On Tuesday morning, July 11, while at the

seminar, Righi received an urgent phone call from his

sister, who informed him that their mother had gone

into a diabetic coma. Righi decided to return home. He

told a co-worker he was leaving to attend to a family

emergency and asked the co-worker to pass this infor-

mation to others at the training session. He then

embarked on the four-hour drive to his home in Illinois.

By the time Righi arrived, his mother’s condition had

stabilized.

Righi did not contact King, his supervisor, at any time

on July 11 to inform him about the situation. Meanwhile,

3

This policy was contained within a memorandum entitled

“Corrective Action Process.” On January 8, 2006, Righi signed

a separate memo acknowledging his receipt and understanding

of the Corrective Action Process.

No. 09-1775 5

King—apparently unaware that Righi had left the

training session—called Righi’s company-issued cell

phone three times on July 11, 2006, to discuss business

matters. But Righi had turned his phone off and therefore

did not answer these calls. King called again the next

morning, July 12, at 6:45 a.m. and once again received

no response.

At approximately 9 a.m. on July 12, Righi sent an e-

mail to King. He apologized for not contacting King

earlier and explained that he left the training session to

attend to his mother, who took an incorrect dosage of

insulin and slipped into a coma. Righi then stated:

I need the next couple days off to make arrangements

in an intermediate care facility for my Mother. . . . I do

have the vacation time, or I could apply for the family

care act, which I do not want to do at this time.

I hope you can understand my situation and approve

this emergency time off. I will be very busy the next

couple of days . . . so I might be slow getting back to

you.4

(Emphasis added.) Righi did not return to work until

July 20, 2006, nine days after leaving the training session.

4

Despite the contents of this e-mail, however, it is undisputed

that Righi’s mother did not visit an emergency room, a physi-

cian, or a health-care provider at any time during the two-

week period beginning July 11, 2006. Righi claims that during

this time he was attempting to make arrangements to move

his mother to an intermediate care facility.

6 No. 09-1775

This e-mail was Righi’s only contact with King until

July 19, 2006.

Righi also sent an e-mail to Kenta Joki, a co-worker, on

the morning of July 12. Joki was in charge of scheduling

the training classes in Indianapolis. Righi told Joki that

his mom was in poor health and that he would have

to reschedule the class. This e-mail was Righi’s last com-

munication with anyone at SMC until July 19, 2006.

When King received Righi’s July 12 e-mail, he re-

peatedly attempted to contact Righi by phone to

inquire further about his leave. King called Righi’s com-

pany cell phone four times on Wednesday, July 12; twice

on Thursday, July 13; four times on Friday, July 14; twice

on Monday, July 17; and once on Tuesday, July 18. Righi

apparently kept his cell phone turned off during this

period, and he did not answer or return any of King’s

phone calls or messages. King also attempted to reach

Righi on his home phone. On the evening of July 17, King

called Righi’s home phone and spoke to Purtscher, telling

him that Righi needed to “wrap this up.” 5 Purtscher

promptly relayed this message to Righi, but still Righi did

5

SMC also contends that on July 17 King explicitly instructed

Purtscher to have Righi call King. Righi denies this. Although

the parties dispute this fact, it is not material to our analysis.

As we explain, infra, to qualify for FMLA protection, it was

Righi’s responsibility to contact King and keep him apprised

about the duration of his leave. See 29 C.F.R. § 825.302(c). Righi

failed to do so. This regulatory requirement was never

excused by SMC, and it therefore remained regardless of

whether King expressly told Purtscher to have Righi call.

No. 09-1775 7

not call King back. Two days later, on July 19, King called

Righi’s cell phone again and Purtscher answered. King

asked Purtscher to tell Righi that he needed to contact

King as soon as possible. Later that day, after nine days

of silence, Righi finally called King. King told Righi to

come to the office for a meeting the next day. At that

meeting Righi was fired for violating SMC’s leave policy.

Righi sued SMC and King alleging FMLA violations.

Righi brought two claims—one for interference with his

right to FMLA leave and the other for discrimination or

retaliation for attempting to exercise FMLA rights. The

district court granted the defendants’ motion for sum-

mary judgment and dismissed both of Righi’s claims.

On appeal Righi challenges only the dismissal of his

FMLA interference claim.

II. Discussion

We review a district court’s grant of summary judgment

de novo, construing all facts and drawing reasonable

inferences in the light most favorable to the nonmoving

party. Ridings v. Riverside Med. Ctr., 537 F.3d 755, 760

(7th Cir. 2008). Summary judgment is appropriate when

there is no material dispute of fact and the moving party

is entitled to judgment as a matter of law. Id. Here, the

question is whether Righi could prevail on a claim

for FMLA interference based on the facts we have re-

counted.

The FMLA permits an eligible employee to take up to

12 weeks of leave per year in order to “care for . . . [a]

8 No. 09-1775

parent [with] a serious health condition.” 29 U.S.C.

§ 2612(a)(1)(C). The Act further provides that employers

may not “interfere with, restrain, or deny the exercise of

or the attempt to exercise, any right provided under

[the Act].” Id. § 2615(a)(1). To prevail on a claim for

FMLA interference, the employee must prove that: (1) he

was eligible for FMLA protections; (2) his employer

was covered by the FMLA; (3) he was entitled to leave

under the FMLA; (4) he provided sufficient notice of his

intent to take FMLA leave; and (5) his employer denied

him FMLA benefits to which he was entitled. Brown v.

Auto. Components Holdings, LLC, 622 F.3d 685, 689 (7th

Cir. 2010); Ridings, 537 F.3d at 761.

The first three elements of the claim are not seriously

in dispute; this appeal turns on whether Righi provided

SMC with sufficient notice under the FMLA and its

regulations. 6 When the employee fails to give his

employer proper notice, the employer is under no duty

to provide FMLA leave. See Stevenson v. Hyre Elec. Co.,

505 F.3d 720, 724 (7th Cir. 2007); Aubuchon v. Knauf Fiber-

glass, GMBH, 359 F.3d 950, 951 (7th Cir. 2004). Stated

differently, an employee’s failure to comply with the

6

SMC maintains that Righi was not entitled to FMLA leave

because his mother did not suffer from a “serious health

condition” as that phrase is defined by the Act and because

Righi failed to complete the required medical certification

forms. See 29 U.S.C. §§ 2611(11) (defining “serious health

condition”), 2613 (discussing certification). Because Righi’s

claim fails for lack of sufficient notice regarding the duration

of his leave, we need not address these arguments.

No. 09-1775 9

notice requirements of the FMLA and its regulations

“forecloses . . . an FMLA interference claim because [the

employee] did not fulfill her obligations in order to be

protected.” Ridings, 537 F.3d at 771.

The Department of Labor has issued detailed regula-

tions governing the notice requirement. See 29 C.F.R.

§§ 825.300 et seq. (2007). The regulations were most

recently amended in 2009; we apply the version in effect

as of July 2006—when these events occurred—to inform

our analysis. See Brown, 622 F.3d at 690 (applying con-

temporaneous regulations); Haefling v. United Parcel Serv.,

Inc., 169 F.3d 494, 498 (7th Cir. 1999) (same).

The district court held as an initial matter that Righi did

not provide sufficient notice to properly invoke the

protections of the FMLA. Generally speaking, it does

not take much for an employee to invoke his FMLA

rights; he must simply provide enough information “to

place the employer on notice of a probable basis for

FMLA leave.” Aubuchon, 359 F.3d at 953; see also

Stevenson, 505 F.3d at 724-25. The applicable regulations

make clear that an employee “need not expressly assert

rights under the FMLA or even mention the FMLA” in

order to invoke his rights; he need only note that leave

is requested for some reason covered by the FMLA.

29 C.F.R. § 825.303(b); see also Aubuchon, 359 F.3d at 953

(the employee must provide enough information to

establish “probable cause” to believe the employee

may qualify for FMLA leave).

Ordinarily, an employee’s statement to his employer

indicating that he needs leave to care for a seriously ill

10 No. 09-1775

parent would be sufficient to invoke the protections of

the FMLA. Cf. Ridings, 537 F.3d at 762-63, 766 (FMLA

rights invoked where employer was aware that em-

ployee had a serious health condition even though the

employee did not explicitly request FMLA leave). That

said, our caselaw also suggests that an employee may

waive his FMLA rights if he clearly expresses to his

employer that he does not wish to use the protections

of the FMLA. See id. (indicating that an employee may

decline to invoke the protections of the FMLA).

Based on this principle, the district court held that

Righi unequivocally declined to invoke FMLA leave and

therefore could not prevail on his FMLA interference

claim. This holding flowed from the district court’s inter-

pretation of the e-mail Righi sent to King on July 12. In

that e-mail Righi explained his mother’s medical emer-

gency and said he needed to take “the next couple days

off” to arrange for an intermediate care facility for his

mother. He then stated: “I do have the vacation time, or

I could apply for the family care act, which I do not

want to do at this time.” The district court held that this

last statement manifested an explicit waiver of FMLA

rights.

We disagree. Read in the light most favorable to Righi,

the e-mail leaves open the possibility that Righi might

want to use FMLA leave after all; this makes it equivocal

or at least ambiguous, and therefore sufficient to alert

SMC to the potential that Righi would need FMLA

leave. The e-mail specifically mentioned his mother’s

diabetic coma, suggesting that Righi may qualify for

No. 09-1775 11

FMLA leave. See Stevenson, 505 F.3d at 725 (sufficient

notice requires employee to alert employer that a

relative’s health condition is serious). Righi also said he

was aware that he could apply for the “family care act,” a

clear reference to the FMLA. Although he mentioned

he had vacation time available and did not want to

apply for family leave “at this time,” the qualifying

phrase “at this time” could be read to imply that Righi

might change his mind and opt to exercise his FMLA

rights. Because Righi’s e-mail contained this qualifier, it

was not an unequivocal waiver of FMLA leave.

Once an employee invokes his FMLA rights by alerting

his employer to his need for potentially qualifying leave,

the regulations shift the burden to the employer to take

certain affirmative steps to process the leave request.

29 C.F.R. § 825.301. In particular, after notice is given,

the employer has a duty to provide a written ex-

planation of the employee’s rights and responsibilities

under the FMLA, id., and a duty to make further

inquiry if additional information is needed before

the employer can process the leave request, see id.

§§ 825.302(c) (“[T]he employer should inquire further of

the employee if it is necessary to have more information

about whether FMLA leave is being sought . . . . ”),

825.303(b) (’The employer will be expected to obtain

any additional required information through informal

means.”). Righi’s e-mail—while too ambiguous to trigger

SMC’s affirmative duty to provide written FMLA mate-

rials and accompanying medical certification forms,

see id. § 825.305—was sufficient to give rise to the em-

12 No. 09-1775

ployer’s duty to make further inquiry.7 As we will

explain, in this situation, the regulations contemplate

that SMC would use informal means to gather more

information from Righi regarding his intent to take

FMLA leave.

There is no dispute that SMC attempted to fulfill its

regulatory obligation to inquire further. As soon as King

received Righi’s e-mail, King called Righi many times in

an effort to learn more about the situation. Righi had

apparently turned his cell phone off and did not

respond to the 15 phone calls that King placed from

July 12 to July 18. Righi did not call King until July 19,

and this occurred only after King spoke to Righi’s room-

mate and told him that Righi needed to call him as soon

as possible.

Righi’s failure to respond to these calls or otherwise

contact his employer dooms his FMLA claim. The FMLA

does not authorize employees to “keep their employers

in the dark about when they will return” from leave.

Gilliam v. United Parcel Serv., Inc., 233 F.3d 969, 971 (7th

Cir. 2000). Indeed, employers are “entitled to the sort of

notice that will inform them not only that the FMLA

7

In the alternative, Righi argues that his e-mail to King should

be read in light of the e-mail he sent to SMC’s scheduling

coordinator Joki. In that e-mail Righi explained he

would have to reschedule his training because he needed to

care for his sick mother. Because we have concluded that

Righi’s e-mail to King did not unequivocally waive his FMLA

rights, we need not consider this argument.

No. 09-1775 13

may apply but also when a given employee will return to

work.” Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008

(7th Cir. 2001) (emphasis added). This principle derives

from the applicable regulatory scheme, which imposes

certain duties on employees requesting FMLA leave. In

all cases, the employee must give his employer notice

about the “anticipated timing and duration of the

leave.” 29 C.F.R. § 825.302(c). This requirement also

applies where, as here, the need for leave is unfore-

seeable. See id. and 29 C.F.R. § 825.303(a) (specifying

notice requirements where need for leave is unforesee-

able); Collins, 272 F.3d at 1008 (explaining that even

in situations where FMLA leave is unforeseeable, the

employee’s notice must conform with the substantive

requirements of 29 C.F.R. § 825.302(c)). In cases (like this

one) involving unforeseeable leave, the employee must

provide notice to his employer about the anticipated

duration of his leave “as soon as practicable.” 29 C.F.R.

§ 825.303(a). Under the regulations in effect at the time

of the events in this case, “as soon as practicable” meant

“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.

An employee who fails to comply with this notice re-

quirement is not entitled to FMLA protection. See

Brown, 622 F.3d at 689-90.

Righi’s July 12 e-mail told King that he needed “the

next couple days off” to attend to his mother, but then

Righi fell silent for a full week, ignoring King’s many

follow-up phone calls. Righi never gave his employer

notice of the timing and duration of his requested leave

14 No. 09-1775

beyond the ambiguous “next couple days” reference,

which he exceeded in any event. Righi was absent with-

out permission from July 11 to July 20, a nine-day period

that included six work days; his vague reference to

needing “the next couple days” cannot be considered

adequate notice of a request for FMLA leave of this

more substantial duration. This is especially so in light

of King’s persistent efforts to reach Righi to clarify

his request, which were essentially ignored. It is true

that the regulations contemplate relaxing the notice

requirement in “extraordinary circumstances,” 29 C.F.R.

§ 825.303(a), but Righi has not identified anything about

his circumstances that qualifies as “extraordinary.”

Of course when the need for leave is unforeseeable, the

employee will sometimes not know exactly how much

leave he will need. But the employee must at least com-

municate this fact to the employer, together with an

estimate of the likely duration of the requested leave.

Here, Righi made no effort whatsoever to keep SMC

apprised of his fluid situation and was absent and out of

touch with his supervisor for more than a week. It

is undisputed that by the time Righi arrived home on

July 11, his mother’s condition had stabilized; once the

emergency abated, it was entirely practicable for Righi to

call King to provide the required notice of when he ex-

pected to return.

Righi argues that he innocently believed that his

absence was excused. He notes that he often kept his

cell phone turned off, and when he could not be

reached via cell phone, King would sometimes call

No. 09-1775 15

Righi’s home phone. Righi contends that because King

had a “usual and customary practice” of calling his

home phone on these prior occasions, King’s duty to

make further inquiry included a duty to call Righi’s

home phone. Righi claims that because King did not

call his home phone until July 17, he was entitled to

assume his leave was excused.

This argument is easily dismissed. First, it is undis-

puted that even after King called Righi’s home phone

for the first time on July 17, Righi still did not return

the call. He did not return his supervisor’s call until two

days later on July 19, and this was only after King

called again and left another message with Purtscher.

Regardless, the argument has no support in the ap-

plicable regulations. Instead, when an employee is

unclear about whether he wants FMLA leave or not, the

regulations contemplate that the employer will make

further inquiry and will “obtain any additional required

information through informal means.” Id. § 825.303(b).

We think this means only that the employer must make

a reasonable effort to clarify the employee’s leave re-

quest. Here, King’s concerted effort for more than a

week to reach Righi by cell phone certainly qualifies as

reasonable.

Finally, it bears repeating that the regulations explicitly

provide that employers may require their employees to

comply with their “usual and customary notice and

procedural requirements” when requesting FMLA leave.

Id. § 825.302(d). SMC had a written policy requiring

its employees to obtain approval for leave from their

16 No. 09-1775

supervisors. SMC’s attendance policy also stated that

an unapproved absence of two consecutive days or

more was grounds for termination. We have previously

held that an employee’s failure to comply with his em-

ployer’s internal leave policies and procedures is a suffi-

cient ground for termination and forecloses an FMLA

claim. Brown, 622 F.3d at 689-90; Ridings, 537 F.3d at 769

n.3, 771; Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706,

710 (7th Cir. 2002); Gilliam, 233 F.3d at 971. Righi never

obtained King’s approval for his leave, and his unap-

proved absence persisted for far longer than the two

days contemplated by the regulations. Of course, an

employer cannot deny FMLA leave when an employee

has a legal entitlement to it. But Righi’s failure to follow

the applicable regulatory and workplace requirements

for notifying his employer of the expected duration of

his leave forecloses his FMLA interference claim.

A FFIRMED.

2-14-11