Stevenson, Beverly v. Hyre Electric Co

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3501

BEVERLY STEVENSON,

Plaintiff-Appellant,

v.

HYRE ELECTRIC CO.,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 7990—Virginia M. Kendall, Judge.

____________

ARGUED MAY 21, 2007—DECIDED OCTOBER 16, 2007

____________

Before RIPPLE, WOOD, and EVANS, Circuit Judges.

WOOD, Circuit Judge. On February 9, 2004, Beverly

Stevenson had an extreme emotional and physical re-

sponse to a stray dog entering her workspace at Hyre

Electric Company. She left work soon after and for the

most part stayed home for the next several days. The few

times she tried to return to work, she felt unable

to function and demonstrated erratic and emotional

behavior. Her coworkers were so concerned that they

eventually locked her out of the building. Then on March

9, 2004, Stevenson was informed by letter that she had

been terminated effective February 25.

Stevenson claims that Hyre had notice that she was

suffering from a serious health condition and thus vio-

2 No. 06-3501

lated her rights under the Family and Medical Leave Act

(“FMLA”), 29 U.S.C. § 2601 et seq., when it fired her.

Despite the unprecedented nature of Stevenson’s trouble-

some behavior following the dog incident, Hyre claims

it was unaware that she might be suffering from a

serious mental health condition. The district court agreed

with Hyre and granted its motion for summary judg-

ment. We see some genuine issues of material fact lurk-

ing in this case, and we therefore reverse and remand

for further proceedings.

I

We review a district court’s decision to grant summary

judgment de novo, and we construe all facts in the light

most favorable to the nonmoving party. Vallone v. CNA

Fin. Corp., 375 F.3d 623, 631 (7th Cir. 2004). Our account

of the facts reflects that perspective.

Prior to February 9, 2004, Stevenson had no docu-

mented history of misconduct or health problems at Hyre.

All that changed at approximately 10:00 am on February

9, when a stray dog climbed through the window of the

Hyre warehouse where Stevenson worked and ap-

proached her. She immediately felt physical symptoms,

including a headache, a rush of blood to her head, and a

tightening of her neck and back. Stevenson’s supervisor

Mary Cicchetti recounted that immediately after the dog

incident, she entered the office area where Stevenson

worked and found Stevenson very agitated and “spraying

Glade,” a room deodorizer. Upon seeing Cicchetti,

Stevenson began yelling and cursing, screaming that

“f**king animals shouldn’t be in the workplace.” Cicchetti

said that Stevenson was “very intimidating” and belliger-

ent, and that her agitated behavior lasted three or four

minutes.

No. 06-3501 3

Two hours after the dog incident, Stevenson informed

Hay Lee Yuen, the accounting manager, that she was

ill and needed to go home. She left and went home im-

mediately; she did not go to a doctor’s office or hospital

that day. The next morning, Stevenson left a voicemail

for Cicchetti and said that she “wasn’t feeling well and . . .

wouldn’t be in today.” At that point she went to the

hospital for an unrelated medical test.

Hyre’s president, Charles Guest, testified in his deposi-

tion that he knew the individual employees who work at

Hyre and that prior to February 9, Stevenson’s behavior

had been satisfactory and that he could not recall any

verbal or written warnings. On February 11, Stevenson

went to her workplace at approximately 7:00 am to

speak with Guest. It was an explosive encounter. Guest

testified that “[Stevenson] charged into my office yelling

and in a very aggressive manner.” He continued, “She

said it was wrong for her to be subjected to this kind of

thing in the office, to have f**king dogs running by her

desk and threatening her, and that management needs

to do something about this.” He tried unsuccessfully to

calm her down, but she continued to scream at him. He

also assured her that every effort would be made to

prevent anything similar from happening in the future.

The conversation lasted eight to ten minutes. Guest

testified that after the incident, other employees came

up to him and made statements such as “What was that

all about?” and “Boy, that was something.”

The accounting manager, Yuen, overheard part of the

February 11 meeting between Stevenson and Guest.

She reported that she could not make out the entire

conversation but “[Stevenson’s] voice was loud and

sounded like screaming at the president.” She acknowl-

edged that Stevenson sounded “very upset.” After the

meeting with Guest, Stevenson told Cicchetti that “she

could not work” and left the premises.

4 No. 06-3501

Later that day, Stevenson filed a complaint with the

Occupational Safety and Health Administration regard-

ing stray animals at Hyre’s workplace. Stevenson also

went to the emergency room. She was examined by a

doctor after complaining of three days of headaches,

insomnia, anxiety, and loss of appetite following an

“emotionally stressful incident at work.” An EKG test and

CAT scan both came back normal. Stevenson was dis-

charged with a diagnosis of “anxiety and stress” and was

prescribed Ativan.

The next day, February 12, Stevenson left a message

for Cicchetti stating that she was ill and would not be

coming to work. Later that day she met with a union

representative, Richard Sipple, to discuss the dog in-

cident. During the meeting, Stevenson mentioned that

she was “off sick” but did not elaborate. On Friday,

February 13, and Monday, February 16, Stevenson again

called in sick but gave no additional details about her

condition.

On February 17, Stevenson went to work at 7:00 am.

Cicchetti had boxed up the contents of Stevenson’s desk

and moved them to another room. Cicchetti claimed that

she did so to accommodate Stevenson’s fear of stray

animals. Stevenson stayed at work for a few hours, but

she was still agitated, completed little or no work, and

ultimately called the police because she believed that

she was somehow being harassed. At approximately

10:00 am, she told Cicchetti that she was not feeling

well and left work. Before leaving, Stevenson left the

hospital’s report of her February 11 emergency room visit

on Yuen’s desk. After Stevenson left, Guest gave Cicchetti

permission to change the locks on the doors of Hyre’s

office. Guest then sent a letter by overnight mail to

Stevenson that stated in part:

You no longer have any accrued vacation or sick leave

available. Therefore, any additional leave must

No. 06-3501 5

be governed by Hyre’s Family and Medical Leave

Policy. Under the provisions of Hyre’s Employment

Manual, you are required to obtain a medical certifica-

tion from your physician or other health care provider

for a serious health condition FMLA leave. If you do

not do so within fifteen (15) days from the commence-

ment of your leave or by Tuesday, February 24, 2004,

your absences will be deemed unexcused and you

will be terminated from Hyre’s employ.

On February 18, Stevenson again called in sick. She went

to a doctor’s appointment that she had scheduled on

February 13 or 14. There she met with Dr. Mary Jo Liszek,

her primary care physician, and told Dr. Liszek about her

medical concerns. Dr. Liszek prescribed a sleep aid for

Stevenson and scheduled a follow-up visit for February 20.

Stevenson claims that Dr. Liszek told her to stay home

for the next two days.

On February 20, Stevenson again met with union

representatives and recounted her story once more. She

also gave the representatives the documentation from her

ER visit. Then Stevenson went to her follow-up appoint-

ment with Dr. Liszek. She was seen first by Dr. Mahan, an

associate of Dr. Liszek, to whom she reported that her

anxiety, sleeping difficulties, and headaches had im-

proved. She told Dr. Mahan that she wanted to return to

work, but that she needed a doctor’s note to do so. Dr.

Liszek then saw Stevenson briefly and wrote a note

excusing her absence from February 9 through February

20. The parties agree that this note does not establish that

Stevenson had been instructed by Dr. Liszek not to work

for those days.

On Monday, February 23, Stevenson did not return to

work. She claims that her union representatives told her

that the union did not want her to return. Sipple recalled

telling Stevenson that she could not return to work until

6 No. 06-3501

she had a “doctor’s release.” That day, Sipple and another

union representative met with Guest and Hyre employee

Jim Palm to discuss Stevenson’s situation. Also that day,

Stevenson faxed to the union a copy of the note from

Dr. Liszek; the union passed the note along to Hyre.

The next morning, Stevenson called Cicchetti and said

that, in keeping with the union’s instructions, she was

not coming to work that day. Later, she changed her

mind and arrived at Hyre at approximately 10:00 am. She

discovered that the locks had been changed, and so she

knocked on the door until Guest answered it. Guest

refused to accept her note from Dr. Liszek; instead, Guest

gave her a box containing her personal belongings “because

she wasn’t coming back into the office.” Later, the union

called Guest, and he told them that the note from Dr.

Liszek was not sufficient. This information was relayed to

Stevenson, and the union advised her to get another

doctor’s note. Stevenson returned to Dr. Liszek and asked

for a note certifying that she could return to work; she

did not, however, mention the FMLA specifically. Dr.

Liszek obliged with a second note purporting to excuse her

through February 24. Stevenson faxed this note to the

union that evening with a cover letter explaining that

Dr. Liszek was willing to answer questions and complete

additional forms if needed. The union then asked Guest

in writing to “[k]indly put forth in writing your reasons

why this [first] release was not enough and let us know

what is needed to return Beverly to work.” Guest never

responded.

On February 25, the union faxed the second doctor’s note

to Hyre. It is unclear whether the cover letter from

Stevenson was faxed as well. From that point until March

9, Stevenson heard nothing from Hyre and did not contact

anyone at Hyre herself. On March 9, Hyre sent a letter

to Stevenson stating that she had been terminated effec-

tive February 25.

No. 06-3501 7

II

A

We begin our inquiry with the question whether

Stevenson gave Hyre notice of her need for FMLA leave. If

she did not, then Hyre had no duty to give her this leave.

Aubuchon v. Knauf Fiberglass, GMBH, 359 F.3d 950, 951

(7th Cir. 2004). Typically, an employee must inform her

employer 30 days in advance that she will need FMLA

leave. 29 C.F.R. § 825.302. When the need for FMLA leave

is not known in advance, however, “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.” 29 C.F.R. § 825.303(a). In such a

case, “[i]t 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, except in extraordi-

nary circumstances where such notice is not feasible.” Id.

Aubuchon explained that the FMLA places the burden of

giving notice on the employee as “the quid pro quo for

the employer’s partial surrender of control over his work

force.” 359 F.3d at 951. On the other hand, the notice

requirement is not demanding:

The employee’s duty is merely to place the employer on

notice of a probable basis for FMLA leave. He doesn’t

have to write a brief demonstrating a legal entitle-

ment. He just has to give the employer enough infor-

mation to establish probable cause, as it were, to

believe that he is entitled to FMLA leave.

Id. at 953. Once that is done, then it becomes “the em-

ployer’s duty to request such additional information from

the employee’s doctor or some other reputable source as

may be necessary to confirm the employee’s entitlement.”

Id.

Although the notice requirement is not overly formal-

ized, the notice must succeed in alerting the employer to

8 No. 06-3501

the seriousness of the health condition. So, for example, in

Aubuchon it was not enough for an employee to inform his

employer that he needed leave because his wife was

pregnant. Id. Had the employee added that his wife was

having “complications,” that “would have sufficed.” Id.

Likewise, “[a] reference to being ‘sick’ ” is insufficient

because “not only [did it] withh[o]ld important information

from the employer but likely threw it off the scent [be-

cause] . . . [c]ertainly it did not suggest to the employer

that the medical condition might be serious.” Collins v.

NTN-Bower Corp., 272 F.3d 1006, 1008-09 (7th Cir. 2001).

This is because FMLA leave is available only for a “serious

health condition” affecting an employee or one of her

family members.

In this case, taking the facts in the light most favorable

to Stevenson, it is possible that she herself was unaware

that she was suffering from a serious medical condition

until she went to the emergency room on February 11.

Even though she left work feeling ill on February 9 and

called in sick on February 10, she might have thought that

the illness would soon lift. Once she went to the emergency

room, however, she was given a diagnosis of “anxiety”

along with a prescription for anti-anxiety medication,

Ativan. At this point, her obligations under 29 C.F.R.

§ 825.303 were triggered. Yet Stevenson did not give

Hyre any explicit notice of her need for leave within one or

two working days of February 11 (which was a Wednes-

day). Instead, she again called in sick on February 12,

February 13, and (Monday) February 16. Each time, she

said only that she was “ill” and “wouldn’t be in today.” It

was not until February 17 that she left a copy of her ER

discharge with someone at Hyre (assuming for now that

this might have been adequate notice).

We can find no meaningful difference between the facts

of this case and those of Aubuchon, discussed above. Just

as the plaintiff in Aubuchon had an obligation to tell his

No. 06-3501 9

employer that his wife was having pregnancy complica-

tions in order to make his employer aware that he needed

FMLA leave, Stevenson had an obligation to tell Hyre

something more than that she was out sick for a

day—something that might have been explained by a

mundane 24-hour upset stomach. See Burnett v. LFW Inc.,

472 F.3d 471, 479 (7th Cir. 2006) (holding that calling

in sick while providing no additional information is

insufficient for the FMLA).

Stevenson contends that Hyre’s letter to Stevenson on

February 17 “constitutes an admission that it was aware

of an ‘alleged illness’ and was therefore taking the next

logical step of requesting some kind of certification,” but

we do not see it this way. First, the letter came after the

two-day time period in which Stevenson should have

given Hyre notice of her need for FMLA leave. 29 C.F.R.

§ 825.303(a). Second, if notice could be presumed when-

ever an employer asks an employee if she needs FMLA

leave, then the FMLA notice requirement would be

rendered meaningless. Stevenson does not make the

argument that Hyre’s insistence that she provide certifica-

tion demonstrates that Hyre recognized her need for

FMLA leave, and so we do not consider that interpreta-

tion of Hyre’s actions. At best, Hyre’s letter gave Steven-

son more time to give notice than the statute does, but

it still required that documentation be provided within

15 days of the onset of her leave. Therefore, although

Stevenson did tell Hyre that she was missing work be-

cause of illness, she did not, within the period required

by 29 C.F.R. § 825.303(a), verbally or in writing make

Hyre aware that her illness might trigger its FMLA

responsibilities.

B

Direct notice from the employee to the employer is not,

however, always necessary. Stevenson’s case may go

10 No. 06-3501

forward if Hyre had constructive notice of her need for

FMLA leave. In Byrne v. Avon Products, 328 F.3d 379 (7th

Cir. 2003), this court held that either an employee’s

inability to communicate his illness to his employer or

clear abnormalities in the employee’s behavior may

constitute constructive notice of a serious health condition.

Id. at 381-82. “It is enough under the FMLA if the em-

ployer knows of the employee’s need for leave; the em-

ployee need not mention the statute or demand its bene-

fits.” Id. at 382.

In Byrne, we found such notice when an employee with

four years of highly regarded service started to sleep on

the job for time periods approaching half of his shift. The

employer also learned from a family member that the

employee was “very sick.” When a company representative

finally contacted him directly, the employee could only

mumble several odd phrases. The day after speaking to

the employee’s sister, the company learned that he

had been hospitalized. Under these circumstances, the

court in Byrne concluded that “unusual behavior” alone

can be “enough to notify a reasonable employer that [an

employee] suffered from a serious health condition.” Id.

at 382-83.

In Stevenson’s case, the district court appears to have

merged the two allowable means of constructive notice

(inability to communicate and clear abnormalities). It must

have thought that Stevenson had to satisfy both, since

it concluded that the Byrne exception could not apply

because “Stevenson . . . maintained an ability to relate her

symptoms and feelings at length.” Byrne, however, held

that “[a] sudden change may supply notice even if the

employee is lucid,” giving the example of an employer

seeing an employee break her arm and concluding that

this observation would give the employer sufficient

notice of a need for FMLA leave without the employee’s

No. 06-3501 11

saying a word. 328 F.3d at 381-82. The district court

therefore erred as a matter of law by not considering

Stevenson’s claims of unusual behavior as constructive

notice regardless of her ability to communicate.

If the record shows that there are disputed issues of

material fact, once we apply the correct legal standard, the

summary judgment for Hyre must be reversed. In

Stevenson’s case, only one of the two approaches recog-

nized in Byrne applies—clear abnormalities—as she does

not claim an inability to communicate. Taking the facts

in the light most favorable to Stevenson, we conclude

that a trier of fact could find that her behavior was

so bizarre that it amounted to constructive notice of the

need for leave. Hyre has not disputed Stevenson’s claim

that she was a “model employee” prior to February 9, 2004.

Her behavior changed dramatically immediately after

the dog incident on February 9, as the testimony of

Cicchetti, Guest, and Yuen bears out.

Cicchetti also testified about Stevenson’s behavior on

February 17, when she returned to the office and at-

tempted to work. Cicchetti testified that “I tried to ex-

plain to her that we moved her desk so she could close

the door, and she started yelling again,” and that

Stevenson responded “I don’t want to sit in there. I can’t

breathe in there,” and then she called the police.

Stevenson testified about her agitated state during all

three of these encounters. Guest, the company president,

acknowledged that they thought the problem was severe

enough to warrant changing the locks—as he put it,

“[w]e were concerned about Beverly coming into the

workplace.” He testified further, “I was concerned about

having a very angry employee,” and said that this con-

cern was based solely on the incidents that took place

between February 9 and 17.

On this record, a trier of fact could conclude that

Stevenson’s behavior on February 9, 11, and 17 was so

12 No. 06-3501

unusual that it gave Hyre constructive notice of her need

for FMLA leave. Lengthy encounters of yelling and swear-

ing at one’s superiors so severe that a company locks out

an employee with a previously unblemished record for

safety concerns, coupled with that employee’s calling

the police because her belongings have been moved to

another desk, are undeniably unusual and could be

viewed by a trier of fact as unusual enough to give Hyre

notice of a serious mental health condition. Of course, the

factfinder could find that Stevenson just had a bad

temper that erupted during the period in question. The

point here is that this is not a decision the court can make

as a matter of law. (We also note that Hyre insists on

characterizing the February 9 dog incident as involving “a

stray puppy,” which would serve only to make Stevenson’s

subsequent responses to the incident more unusual than

if the incident had involved a large, menacing dog. The

record does not otherwise reveal the size or breed of the

dog.) For these reasons, summary judgment for Hyre

based on Stevenson’s alleged lack of notice of her need

for FMLA leave was inappropriate.

III

Providing notice is not enough to receive FMLA benefits.

An employee must also have (in the “self ” branch of the

statute under which Stevenson is proceeding) a serious

health condition. Haefling v. UPS, 169 F.3d 494, 498 (7th

Cir. 1999). The FMLA itself defines a “serious health

condition” as “an illness, injury, impairment, or physical or

mental condition that involves—(A) inpatient care in a

hospital, hospice, or residential medical care facility; or

(B) continuing treatment by a health care provider.” 29

U.S.C. § 2611(11). The FMLA regulations further define

“serious health condition,” stating in relevant part that a

“serious health condition must involve:

No. 06-3501 13

Continuing treatment by a health care provider. A

serious health condition involving continuing treat-

ment by a health care provider includes any one or

more of the following:

(i) A period of incapacity (i.e., inability to work,

attend school or perform other regular daily activi-

ties due to the serious health condition, treatment

therefor, or recovery therefrom) of more than three

consecutive calendar days, and any subsequent

treatment or period of incapacity relating to the

same condition, that also involves:

(A) Treatment two or more times by a health

care provider, by a nurse or physician’s assis-

tant under direct supervision of a health care

provider, or by a provider of health care ser-

vices (e.g., physical therapist) under orders of,

or on referral by, a health care provider; or

(B) Treatment by a health care provider on at

least one occasion which results in a regimen

of continuing treatment under the supervision

of the health care provider.

29 C.F.R. § 825.114(a)(2). Thus, under this section of the

regulations, an employee must show by a preponderance of

the evidence that she was incapacitated for “more than

three consecutive calendar days,” meaning that she either

could not work for those days or could not perform regular

daily activities, and that she received ongoing treatment

for her condition by a medical professional, either in the

form of multiple doctor’s visits or continuing medication.

Stevenson easily satisfies the medical treatment require-

ment, as she had an emergency room visit on February 11

and two visits to her doctor, Dr. Liszek, on February 18

and February 20. Her ongoing prescriptions, given to her

by the emergency room doctor and Dr. Liszek, could be

14 No. 06-3501

seen as “a regimen of continuing treatment,” meaning

Stevenson might only need to show one doctor’s visit.

The district court concluded, however, that Stevenson

had failed to present evidence that would show that she

was incapacitated. She needed something indicating either

an inability (1) to work, (2) attend school or (3) perform

other regular daily activities as a result of her serious

health condition. 29 C.F.R. § 825.114(a)(2)(i). The “school”

option does not apply to her, and so we set it aside.

Because Stevenson left work early on Monday, February 9,

2004, and was scheduled to work the remaining days

of that week, in order to qualify under “inability to work,”

she would need to show that she was unable to work on

February 10, 11, and 12 as well, or for any time period of

more than three days prior to February 20, when she

began feeling better. To qualify under the “other daily

activities” option, she would need to show that she was

unable to perform regular daily activities on more than

three consecutive days in that same period. 29 C.F.R.

§ 825.114(a)(2)(i).

We agree with the district court that Stevenson failed

to create a genuine issue of fact under the third option

provided by the regulations, her ability to perform regular

daily activities. The record reflects that Stevenson engaged

in a variety of activities during the period at issue.

She visited work on February 11, phoned in a complaint

about the dogs to OSHA that afternoon, attended a

meeting at her union’s offices on February 12 about the

incident, returned to work again on February 17, had

another meeting at the union offices on February 20, and

tried to begin working again on February 24 but was

turned away. This means that she must show that she

can meet the first option by showing her inability to work.

The district court pointed out that the notes from Dr.

Liszek “were not intended to suggest that Plaintiff had

No. 06-3501 15

an FMLA-qualifying condition.” But the fact that the

doctor’s statement might have said more about incapacity

does not transform it into a “ ‘negative certification,’ that

is, an affirmative statement by [the plaintiff ’s doctor] that

[the plaintiff ]’s incapacity lasted less than three days.”

Kauffman v. Fed. Express Corp., 426 F.3d 880, 886 (7th

Cir. 2005). In Kauffman, the medical record at issue

appeared to state clearly that the plaintiff was incapaci-

tated; here, in contrast, the written records are incon-

clusive.

In Stevenson’s favor, Dr. Liszek testified in her deposi-

tion that Stevenson suffered from a “serious medical

condition.” Hyre argues that “serious health condition” is

a “term of art,” and therefore Dr. Liszek’s testimony about

a “serious medical condition” is insufficient for FMLA

purposes. This argument is a bit ridiculous, especially

given the context of the statement. Dr. Liszek said, “Yes,

they [the forms she filled out for Stevenson] were not

FMLA. [Stevenson] did have a serious medical condition,

but it was not—it was not—the form I filled out was not

an FMLA form.” Drawing inferences from this testimony

in the light most favorable to Stevenson, as we must

at this stage, Dr. Liszek was saying she could have

filled out an FMLA form for Stevenson because Steven-

son had a qualifying medical condition, but that she had

not been asked to fill out a form that had “FMLA” printed

at the top.

Even if we thought that Dr. Liszek’s opinion that

Stevenson had a qualifying condition was too conclusory

to create a triable issue of fact by itself, see Moore v.

J.B. Hunt Transport, Inc., 221 F.3d 944, 952 (7th Cir.

2000) (an ADA case, not an FMLA case), there is more

here. Dr. Liszek testified that the Ativan dosage that had

been prescribed for Stevenson at the ER was a “medium

dose,” not a light dose. After the ER visit, Dr. Liszek

prescribed additional medication for Stevenson. Dr. Liszek

16 No. 06-3501

testified that Stevenson’s pulse on February 11, according

to the ER documents, was “high for her.” She noted

that Stevenson complained at her February 18 appoint-

ment that she had a headache that dated back to the

February 9 incident. Dr. Liszek said that on February 18,

“my final evaluation of her was that she had anxiety,”

which matches the ER diagnosis on February 11.

As for Stevenson’s ability to return to work, Dr. Liszek

stated that on February 20, “[Stevenson’s] medical condi-

tions were more stable.” The doctor did not say one way

or the other whether Stevenson could have worked during

the time she stayed home from work. Dr. Liszek testified,

however, that she did not just blindly fill out the work

excuse form, but “would make my judgment based on, you

know, her illness that I was seeing in the clinic and her

history of the ER visit.” In that context, she noted

that Stevenson presented with anxiety and insomnia, as

well as ongoing anemia and hypertension. Hyre claims

“Dr. Liszek did not attach any time period” for the med-

ical conditions she described, but that is not quite right.

Dr. Liszek stated definitively that “[Stevenson] had

anxiety at the point when I was seeing her.” (Emphasis

added.) This was not an opinion only about Stevenson’s

previous maladies, as Hyre suggests. Thus, Stevenson’s

testimony about the effect of her health condition on her

ability to work does not exist in a vacuum; it is reinforced

by medical records, prescription records, and her doctor’s

testimony.

Hyre points to the FMLA regulations that state that

“[a]n employee is ‘unable to perform the functions of the

position’ where the health care provider finds that the

employee is unable to work at all or is unable to perform

any one of the essential functions of the employee’s

position within the meaning of the Americans with Dis-

abilities Act.” 29 C.F.R. § 825.115. This regulation, how-

ever, deals with what a medical provider needs to write

No. 06-3501 17

down in a certification, not with the underlying defini-

tion of “serious health condition.” It does not say that the

lack of such a written certification is conclusive evidence

that there is no qualifying medical condition or that there

is no other way to prove this point. We conclude, on this

record, that a material issue of fact exists on the question

whether Stevenson did have a “serious health condition.”

It was therefore error to grant summary judgment in

Hyre’s favor.

IV

Stevenson also appeals the denial of her own motion for

summary judgment, claiming that Hyre violated the FMLA

by failing to allow her to cure deficiencies in the certifica-

tion of her serious health condition, failing to allow her

the minimum 15 days it promised to provide that certi-

fication, failing to inform her of her FMLA rights, and

failing to answer questions concerning her FMLA rights

responsively. The district court rejected these claims based

on its conclusion that Stevenson failed to give Hyre

adequate notice. We have concluded only that there are

genuine issues of fact on the notice question, not that

the record establishes as a matter of law that notice

was proper. It would therefore be inappropriate for us

to find that Stevenson is entitled to judgment as a matter

of law, with this critical question still contested. We note,

however, that we agree with the district court that

Stevenson failed to give Hyre notice in her complaint of

her contention that it failed properly to inform her of her

FMLA rights. The district court thus acted within its

discretion when it refused to allow her to raise that

argument for the first time in her summary judgment

motion.

18 No. 06-3501

V

Although Stevenson has not demonstrated the absence

of disputed issues of material fact and an entitlement to

judgment as a matter of law, she has presented enough to

survive Hyre’s summary judgment motion on all but one

theory. We therefore AFFIRM the district court’s dismissal

of Stevenson’s claim that Hyre did not inform her of her

FMLA rights, but we REVERSE the district court’s grant of

summary judgment for Hyre and REMAND this case to the

district court for further proceedings on the remaining

claims. Costs on appeal are to be taxed against Hyre.

EVANS, Circuit Judge, dissenting. Because I am con-

vinced that there are no genuine issues of material fact

in this case, I would affirm the grant of summary judg-

ment that Judge Kendall awarded to Hyre.

It is, of course, well-understood that in determining

whether a genuine issue of fact exists, courts must view

the evidence and draw all reasonable inferences in favor

of the party opposing the motion, in this case Stevenson.

I part company with the majority, however, as to

whether—by any stretch of the imagination—Stevenson is

entitled to the inferences being granted to her.

The majority concedes that Stevenson did not properly

provide her employer with direct notice of her need for

FMLA leave. But the majority then proceeds to find that

the employer had constructive notice of Stevenson’s need

for leave, based on an exception to the direct notice

No. 06-3501 19

requirement set out in Byrne v. Avon Products, 328 F.3d

379 (7th Cir. 2003). I cannot see how the evidence pre-

sented allows any conceivable inferences that bring

Stevenson’s case within shouting distance of Byrne.

We said in Byrne that sometimes unusual behavior gives

all the notice that is required to inform an employer that

an employee needs leave. The Byrne case is, in fact, so

dramatic that almost no other conclusion would have been

possible. Byrne, who had previously been a model em-

ployee, began to fall asleep on the job and failed to show

up for work. When his employer telephoned him, his

sister said he was “very sick.” In fact, suffering from

depression, Byrne himself could not speak beyond “mum-

bling several odd phrases.” His relatives took him to a

hospital—after talking him out of a room in which he had

barricaded himself. He began to hallucinate, attempted

suicide, and during a panic attack tried to “flush his

head down a toilet.” To say that Stevenson’s behavior

was comparably unusual to Byrne’s would be to let the

exception swallow the rule. I believe that as a matter of

law, the “Byrne exception” is not applicable, as, by the

way, we found it not to be applicable in Burnett v. LFW,

Inc., 472 F.3d 471 (7th Cir. 2006).

Although the problem with notice should be con-

sidered dispositive, I am also troubled by the majority’s

conclusion that Stevenson has raised a factual dispute

as to her serious health condition. Stevenson shows that

she visited doctors during the relevant period. One of the

visits, however, was for an unrelated medical test. A

second was to an emergency room where she complained

about a stressful incident at work—presumably the

unwelcome appearance of the dog. The doctors performed

an EKG and a CAT scan, both of which were normal.

She was diagnosed with anxiety and prescribed medica-

tion to calm her nerves. Anxiety comes in all degrees,

however, and Stevenson does not provide information as

20 No. 06-3501

to how her anxiety level prevented her from working.

She also visited her own doctor, who later wrote an ex-

cuse for missed work but who never told Stevenson that

her condition required her to stay away from her job.

During this time, Stevenson was able to meet with a

union representative and showed up at Hyre for short

periods of time. It is, of course, possible that Stevenson

was suffering from a qualifying health condition, but my

point here is that she provides no evidence which would

prevent summary judgment on the issue. It is not too

much to expect her to do that.

Stevenson, who bears the ultimate burden of proof

in this case, was obligated at the summary judgment

stage to come “forward with properly supported argu-

ments or evidence to show the existence of a genuine

issue of material fact.” Treadwell v. Office of Ill. Secretary

of State, 455 F.3d 778, 781 (7th Cir. 2006). This she has

utterly failed to do.

For these reasons, I respectfully dissent.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-16-07