Caroline Guzman v. Brown County

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 16-3599

CAROLINE GUZMAN,

Plaintiff-Appellant,

v.

BROWN COUNTY,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 15-CV-0215 — William C. Griesbach, Chief Judge.

____________________

ARGUED APRIL 21, 2017 — DECIDED MARCH 7, 2018

____________________

Before WOOD, Chief Judge, SYKES, Circuit Judge, and

COLEMAN, District Judge.

COLEMAN, District Judge. Caroline Guzman, a former 911

dispatcher for Brown County, claims that Brown County in-

terfered with her efforts to take leave under the Family Med-

ical Leave Act, discriminated against her because she was

 Of the Northern District of Illinois, sitting by designation.

2 No. 16-3599

disabled, refused to accommodate her disability, and retali-

ated against her for exercising her rights under the Family

Medical Leave Act and the Americans with Disabilities Act.

The district court granted summary judgment in Brown

County’s favor. We affirm.

I. Background

Guzman was employed as a Telecommunication Opera-

tor at the Brown County Public Safety Communications De-

partment 911 Call Center from 2002 until 2013. The 911 Call

Center is responsible for answering all emergency and most

non-emergency calls for the 9 police departments, 18 fire de-

partments, and 2 EMS agencies operating in Brown County

and dispatching those calls to the appropriate entities.

The call center operates around the clock, with nine to

twelve telecommunication operators assigned to each shift.

Guzman previously worked on the third shift under com-

munications supervisor Thomas Smith, but in 2012 she

moved to the day shift, where she was supervised by com-

munications supervisor David Panure. At the time of her

termination in 2013, the call center was overseen by interim

director of public safety Cullen Peltier. Since 2011, Brown

County has had a third-party vendor manage disability,

FMLA, and unpaid leave requests. Employees interested in

these programs directly contact the third-party vendor, and

do not need permission or approval from a supervisor.

Guzman was diagnosed with sleep apnea in February

2006, and was issued a CPAP machine to treat that condition.

In 2008, Guzman had gastric bypass surgery, which resulted

in substantial weight loss. Following the surgery, Guzman

stopped using her CPAP machine, which she threw away in

No. 16-3599 3

2014. Guzman was not re-diagnosed with sleep apnea fol-

lowing her gastric bypass surgery and does not recall if she

ever provided Brown County with documentation concern-

ing her 2006 sleep apnea diagnosis.1

Public Safety Communications Center employees’ con-

duct is governed by a policy manual, which requires that

employees report to work when scheduled and be ready to

relieve their counterpart at the scheduled start of their shift.

Brown County employs a progressive discipline system,

which escalates from verbal warnings to written warnings

(also known as performance reports), suspension, and ulti-

mately termination.

During her employment, Guzman was subject to a num-

ber of disciplinary actions. She received five verbal or writ-

ten warnings concerning her use of vacation time or casual

time between 2004 and 2013. She also received three verbal

or written warnings for failure to timely complete mandato-

ry proficiency tests, as well as one verbal warning for failure

to report to work on a date that she mistakenly believed that

she was not scheduled to work. In November 2012, Guzman

was questioned by the Brown County Sheriff’s Department

regarding potential professional misconduct, but was

cleared of the allegations following a hearing. Guzman took

FMLA leaves unrelated to her sleep apnea in 2007, 2008,

2010, and 2011, and several of these disciplinary actions took

place shortly after her return from those leaves.

1 Although Guzman repeatedly asserted that Brown County knew

about her 2006 diagnosis, the portions of the record that she relied on

provide no support for that proposition.

4 No. 16-3599

Guzman was disciplined for being late to work in Sep-

tember 2011, June 2012, August 2012, and December 2012.

On February 9, 2013, Guzman failed to report at the start of

her shift. Her supervisor, Panure, called her repeatedly and,

when the calls went unanswered, requested that the Sheriff’s

department dispatch a deputy to check on Guzman. The

deputy made contact with Guzman, who subsequently ar-

rived at work. On February 25, 2013, Guzman attended a

meeting to address her February 9, 2013, tardiness. At that

meeting, Guzman was given a three-day suspension and

warned that if she was late again she could be fired. Guzman

attributed her tardiness on February 9 to having slept

through her alarms and made no mention of sleep apnea.

Guzman’s suspension was to be served on March 4, March

11, and March 12, 2013.

On March 8, 2013, Guzman was again late for work.

Panure informed Peltier, who decided to terminate Guz-

man’s employment. When she arrived at work, Guzman

asked Panure if it would be helpful for her to have a doctor’s

note regarding her absence, and was informed that it would

be. Although she might have mentioned her sleep apnea to

Panure during that conversation, it is undisputed that he did

not convey that information to Peltier.

That evening, Guzman called her psychiatrist, Dr.

Stamm, to obtain a note excusing her tardiness. In light of

Guzman’s medical history, Dr. Stamm felt that it was likely

that Guzman was suffering from recurrent sleep apnea, and

accordingly wrote a note stating that Guzman “most proba-

bly” had sleep apnea, and that she needed to be retested and

treated for that condition.

No. 16-3599 5

On March 15, 2013, Panure, Smith, and Peltier met with

Guzman, and informed her that she was being terminated.

Guzman, in turn, provided the March 8, 2013, note written

by Dr. Stamm. The parties dispute whether Guzman provid-

ed the note before or after she was informed of her termina-

tion. They also dispute whether Guzman requested FMLA

leave during or after that meeting. Notwithstanding Guz-

man’s note or verbal requests, her employment was termi-

nated on that date.

In an unrelated series of events relevant to Guzman’s

claims in this case, a replevin judgment was entered against

Guzman in Brown County’s small claims court in favor of

Lebakkens Inc. on October 11, 2012. A writ of replevin was

simultaneously issued, directing the Brown County Sheriff’s

Department to deliver furniture in Guzman’s possession to

Lebakkens. Guzman was served with the writ of replevin on

November 14, 2012. After several months, Lebakkens filed

an ex parte application for a warrant to permit the Brown

County Sheriff’s Department to use reasonable and neces-

sary force to enter Guzman’s residence in order to secure the

return of the items, which was granted on April 4, 2013.

Guzman testified that both the issuance of such a warrant

and its execution by nine deputies was abnormal. She also

testified that a Lebakkens employee had informed her that it

had sought the warrant based upon a sheriff deputy’s repre-

sentation that Guzman would not voluntarily return the fur-

niture in question.

On February 25, 2015, Guzman filed the complaint in this

action, alleging Family Medical Leave Act (FMLA) interfer-

ence and FMLA retaliation in violation of 29 U.S.C. § 2601 et

seq., disability discrimination and retaliation in violation of

6 No. 16-3599

the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112

et seq., and discrimination in violation of the Rehabilitation

Act, 29 U.S.C. § 794, et seq. Following the close of discovery,

Brown County moved for summary judgment, which the

district court granted. This appeal followed.

II. Discussion

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

ment de novo, construing the evidence and drawing all rea-

sonable inferences in Guzman’s favor. Petties v. Carter, 836

F.3d 722, 727 (7th Cir. 2016). Summary judgment is appro-

priate only “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A. FMLA Interference

Guzman first contends that the district court erred in

granting summary judgment on her FMLA interference

claim. The FMLA entitles eligible employees suffering from

serious health conditions to twelve workweeks of leave dur-

ing each twelve-month period. 29 U.S.C. § 2612(a)(1)(D). The

FMLA also makes it unlawful for an employer to interfere

with an employee’s attempt to exercise FMLA rights or to

retaliate against employees who exercise their FMLA rights.

29 U.S.C. § 2615. In order to prevail on a FMLA interference

claim, an employee must establish that (1) she was eligible

for the FMLA’s protections, (2) her employer was covered by

the FMLA, (3) she was entitled to leave under the FMLA, (4)

she provided sufficient notice of her intent to take leave, and

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

entitled. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006).

No. 16-3599 7

It is undisputed that Guzman was eligible for FMLA pro-

tection and that Brown County was subject to the FMLA.

Guzman contends that she was also entitled to leave under

the FMLA. An employee is entitled to FMLA leave if (1) she

is afflicted with a “serious health condition” and (2) that

condition renders her unable to perform the functions of her

job. Id. at 477–78. Guzman asserts, without citation to sup-

porting legal authority, that sleep apnea is a chronic condi-

tion meeting the definition of “serious health condition” un-

der the FMLA regulations. The FMLA defines a serious

health condition as “an illness, injury, impairment, or physi-

cal 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). Here, it is not altogether clear that Guzman suf-

fered from sleep apnea in 2013. Although Guzman had been

diagnosed with sleep apnea seven years prior, she had not

been diagnosed since that time,2 sought no further treatment

for that condition, and had reported that she no longer suf-

fered from the symptoms of sleep apnea. Even if Guzman

did suffer from sleep apnea, moreover, she has offered no

evidence that she received inpatient care for that condition

or was subject to continuing treatment for that condition at

2 On March 8, 2013, Guzman obtained a note from Dr. Stamm, her

treating psychiatrist, reading “[t]he above patient most probably has

sleep apnea. Please excuse her tardiness due to oversleeping. She needs

to be re-tested and treated for that condition.” Dr. Stamm’s note did not

diagnose Guzman with sleep apnea or state that her oversleeping was a

result of sleep apnea. Instead, it indicated that her oversleeping “proba-

bly” was a result of sleep apnea—a logical suspicion based on her past

diagnosis—and that she needed to be tested so that she could be diag-

nosed with sleep apnea and treated appropriately.

8 No. 16-3599

the time of her leave request. To the contrary, she concedes

that she was not seeing any medical professional for her

sleep apnea and had thrown away her CPAP machine.

Guzman has accordingly failed to introduce any evidence

capable of establishing that she suffered from a “serious

health condition” under the FMLA.

Guzman also failed to identify evidence capable of estab-

lishing that she provided adequate notice of her need for

FMLA leave. Typically, an employee must give notice of the

need for FMLA leave at least 30 days in advance but, if the

need for leave is not known in advance, an employee may

give notice “as soon as practicable under the facts and cir-

cumstances of the particular case.” 29 C.F.R. § 825.303(a).

[T]he employee’s duty is merely to place the

employer on notice of a probable basis for

FMLA leave. [She] doesn’t have to write a brief

demonstrating a legal entitlement. [She] just

has to give the employer enough information

to establish probable cause, as it were, to be-

lieve that [she] is entitled to FMLA leave.

Aubuchon v. Knauf Fiberglass, GmbH, 359 F.3d 950, 953 (7th

Cir. 2004).

Guzman argues that she orally requested FMLA leave

during her March 8 conversation with Panure. Although

perhaps supported by the record, this argument was not

raised by Guzman in her brief opposing summary judgment

in the district court, and is therefore waived on appeal. Puffer

v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) (citations

omitted).

No. 16-3599 9

Guzman also argues that Brown County had constructive

notice of her need for FMLA leave. We have previously rec-

ognized that clear abnormalities in an employee’s behavior

can provide constructive notice to an employer of serious

health conditions that require FMLA leave. Byrne v. Avon

Prods., Inc., 328 F.3d 379, 381–82 (7th Cir. 2003).3 Here, Guz-

man contends that Brown County was on constructive notice

of her medical condition because her six late arrivals be-

tween September 2011 and March 2013 were uncharacteristic

with her performance history.

The cases in which we have previously found possible

constructive notice of the need for FMLA leave have entailed

stark behavioral changes, such as an employee who sudden-

ly and uncharacteristically began aggressively shouting at

coworkers over minor occurrences. See, e.g., Stevenson v. Hyre

Elec. Co., 505 F.3d 720, 726–727 (7th Cir. 2007). Six incidents

of oversleeping, spread over eighteen months, do not consti-

tute the sort of stark and abrupt change which is capable of

providing constructive notice of a serious health condition.

Guzman, moreover, attributed some of her late arrivals to

non-medical factors such as her car not starting or using her

cellphone as an alarm clock. These admissions of non-

medical excuses further dispel any potential constructive no-

tice provided by her tardiness. Guzman has therefore failed

3 We acknowledge that other circuits have called the continued ap-

plicability of Byrne and its progeny into question in light of the 2009

amendments to 29 C.F.R. § 825.303(a). See, e.g., Scobey v. Nucor Steel-

Arkansas, 580 F.3d 781, 788 (8th Cir. 2009). That issue, however, has not

been presented here, and its resolution is not necessary to the present

case. We accordingly assume, without deciding, that Byrne continues to

apply for the purposes of this appeal.

10 No. 16-3599

to produce evidence capable of establishing that Brown

County had constructive notice of her sleep apnea.

Guzman alternatively argues that she gave Brown Coun-

ty actual notice of her belief that she suffered from sleep ap-

nea on March 15, when she requested FMLA leave. Alt-

hough it is disputed whether she raised this issue before or

after being informed that she was being terminated, if at all,

it is undisputed that the decision to terminate her was made

before Peltier had any knowledge that Guzman had request-

ed FMLA leave or believed that she had sleep apnea. Guz-

man therefore cannot establish that she was denied FMLA

benefits to which she was entitled. See Cracco v. Vitran Ex-

press, Inc., 559 F.3d 625, 636 (7th Cir. 2009) (quoting Throne-

berry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 977 (8th Cir.

2005) (“[A]n employer who interferes with an employee’s

FMLA rights will not be liable if the employer can prove it

would have made the same decision had the employee not

exercised the employee’s FMLA rights.”)); see also Nicholson v.

Pulte Homes Corp., 690 F.3d 819, 828 (7th Cir. 2012) (affirming

summary judgment on the plaintiff’s FMLA interference

claim where the employee asked for leave after the termina-

tion decision had already been made). Accordingly, the dis-

trict court did not err in granting summary judgment in

Brown County’s favor on Guzman’s FMLA interference

claim.

B. FMLA Retaliation

Guzman contends that the district court erred by con-

cluding that her FMLA retaliation claim could not survive

summary judgment. In order to prevail on a FMLA retalia-

tion claim, a plaintiff must present evidence that she was

subject to an adverse employment action that occurred be-

No. 16-3599 11

cause she requested or took FMLA leave. Preddie v. Bartholo-

mew Consol. Sch. Corp., 799 F.3d 806, 819 (7th Cir. 2015). It is

undisputed that Peltier decided to fire Guzman on March 8,

2013. It is also undisputed that, if Guzman informed Panure

of the possibility that she suffered from sleep apnea, he did

not relay that information to Peltier. Accordingly, Guzman

cannot establish a causal link between requests for FMLA

leave on or after March 8, 2013, and her termination.

Guzman appears to alternatively contend that she was

subjected to retaliation for past FMLA leaves. Guzman took

FMLA leave from October 2010 through March 2011, and on

June 5, 2011, was disciplined for failure to complete required

trainings. Guzman again took FMLA leave from October 14

to October 21, 2011, and on November 2, 2011, was again

disciplined for failing to complete required training. Guz-

man also received subsequent discipline in January and June

of 2012 regarding vacation issues, as well as the previously

described discipline for tardiness. A sheriff’s deputy was also

sent to check on Guzman when she was late for work, alt-

hough Guzman admits that this had happened a couple of

times previously when telecommunication operators were

late and did not answer the phone.

Guzman has not established that any of the discipline

that she received was unwarranted, and has identified no

direct evidence linking her discipline to her FMLA leaves.

Unfortunately for Guzman, “mere temporal proximity” is

not enough to establish a genuine issue of material fact to

survive summary judgment. Cole v. Illinois, 562 F.3d 812, 816

(7th Cir. 2009) (quoting Andonissamy v. Hewlett-Packard Co.,

547 F.3d 841, 851 (7th Cir. 2008)).

12 No. 16-3599

Guzman also argues that she was subjected to greater

scrutiny and discipline than similarly situated employees

who had not taken FMLA leave. In determining whether two

employees are directly comparable in all material respects,

we consider whether the employees held the same job de-

scription, were subject to the same standards, were subordi-

nate to the same supervisor, and were similarly qualified.

Hull v. Stoughton Trailers, LLC, 445 F.3d 949, 952 (7th Cir.

2006).

Guzman, in a self-drafted document, identifies twenty-

seven coworkers who she contends were late to work but

were not disciplined. Guzman, however, does not consistent-

ly identify when the identified employees were late or how

late they were, what shift they worked at the time of the al-

leged infraction, who their supervisor was at the time of the

alleged infraction, or what their disciplinary history was at

the time of the alleged infraction. See Atanus v. Perry, 520 F.3d

662, 675 (7th Cir. 2008) (recognizing that employers are justi-

fied in reprimanding employees more severely for repeated

errors or infractions). To the contrary, Guzman admits that

some of the identified employees held different job titles or

did not work the same shift as her at the time of their tardi-

ness. Guzman also admits that she does not know whether

any of the putative comparators are disabled or whether

they had used FMLA leave, beyond the fact that they did not

mention it in their conversations with her. Because Guzman’s

evidence cannot establish that her proposed comparators are

similarly situated to her, she cannot establish that she was

treated worse than similarly situated employees as a result

of her past FMLA leaves.

No. 16-3599 13

Finally, Guzman appears to contend that Brown County

retaliated against her by dispatching the Sheriff’s Depart-

ment to assist a private company in repossessing Guzman’s

furniture following her termination. Acts taking place after

an employee is terminated, however, do not constitute ad-

verse employment actions. Reed v. Shepard, 939 F.2d 484, 492–

93 (7th Cir. 1991). Guzman, moreover, has identified no evi-

dence capable of establishing that the execution of the judi-

cially-issued warrant was motivated by her past FMLA re-

quests or other protected conduct.

C. Disability Discrimination

Guzman next contends that the district court erred in

granting summary judgment on her disability discrimination

claims. The ADA and Rehabilitation Act prohibit an employ-

er from discriminating against a qualified individual with a

disability. 4 42 U.S.C. § 12112; 29 U.S.C. § 794. In order to de-

feat summary judgment on her disability discrimination

claim, Guzman must point to evidence capable of establish-

ing that (1) she is a person with a disability within the mean-

ing of the ADA and Rehabilitation Act; (2) she is qualified to

perform the essential functions of her job with or without a

reasonable accommodation; and (3) she suffered from an ad-

4 Brown County contends that Guzman abandoned or waived her

Rehabilitation Act claim in the district court. The district court recog-

nized that Guzman “did not respond to or even address Defendant’s

arguments for summary judgment on the issue of Guzman’s Rehabilita-

tion Act claim.” The district court, however, did not hold that this claim

had been waived or abandoned and instead proceeded to deny it on its

merits. Because the district court ruled on the merits of this issue, we

decline to hold that it has been waived on appeal.

14 No. 16-3599

verse employment decision as a result of her disability. Jack-

son v. City of Chicago, 414 F.3d 806, 810 (7th Cir. 2005).

We need not decide whether Guzman is a qualified indi-

vidual with a disability because, even assuming that she

was, she has failed to identify any evidence establishing that

an adverse employment action occurred as a result of her

alleged disability. Guzman has not identified any evidence

that Peltier knew that Guzman suffered from sleep apnea

prior to deciding to fire her. Instead, the undisputed evi-

dence establishes that Guzman was fired based on her re-

peated failures to show up to work on time, in violation of

multiple provisions of the Public Safety Communications

Center Policy Manual. It might well be the case that Guz-

man’s repeated tardiness was a side effect of undiagnosed

sleep apnea. But “[v]iolation of a workplace rule, even if it is

caused by a disability, is no defense to discipline up to and

including termination.” Budde v. Kane Cnty. Forest Preserve,

597 F.3d 860, 863 (7th Cir. 2010) (citing Pernice v. City of Chi-

cago, 237 F.3d 783, 785 (7th Cir. 2001)). Here, moreover, there

can be no dispute that the rule in question was an important

one and that Guzman’s violations constituted a recurring

pattern of conduct. Accordingly, Guzman has failed to

demonstrate that her termination was a result of her disabil-

ity as opposed to her repeated late arrivals.

D. Failure to Accommodate

Guzman further contends that the district court erred in

rejecting her failure to accommodate claim. In order to pre-

vail on this claim, Guzman would need to point to evidence

showing that (1) she is a qualified individual with a disabil-

ity; (2) her employer was aware of this disability; and (3) her

employer failed to reasonably accommodate the disability.

No. 16-3599 15

E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir.

2005). Generally, an employer is not obligated to accommo-

date an employee’s disability until the employee informs the

employer of the existence of the disability and requests an

accommodation. Jovanovic v. In-Sink-Erator Div. of Emerson

Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000).

Guzman contends that she requested a reasonable ac-

commodation, or, alternatively, that Brown County was on

notice of her disability. There is no evidence, however, estab-

lishing that Brown County was aware of Guzman’s initial

diagnosis of sleep apnea or subsequent treatment. Even

Guzman’s 2011 fitness-for-duty exam, which undisputedly

was received by Brown County, failed to mention sleep ap-

nea, acknowledging only that Guzman “no longer has exces-

sive need for sleep or sleep hunger and is really feeling

much more like her normal self.” Such a general statement,

buried in a psychiatric fitness-for-duty report, is incapable of

providing notice that an employee suffers from a specific,

unmentioned medical condition.

The next possible time that Guzman could have provided

notice was in 2013, either during her March 8 conversation

with Panure or her March 15 termination meeting. The evi-

dence is not conclusive as to whether Brown County was in-

formed that Guzman had sleep apnea on either of these

dates. Even if it was, however, the conduct for which Guz-

man was terminated had already occurred. The undisputed

evidence establishes that Guzman was terminated based on

her repeated late arrivals, the last of which occurred on

March 8, 2013, prior to her conversation with Panure. After

the fact requests for accommodation do not excuse past mis-

conduct. Tate v. Ancell, 551 F. App’x 877, 886 (7th Cir .2014).

16 No. 16-3599

Guzman has accordingly failed to introduce evidence estab-

lishing that Brown County failed to accommodate her al-

leged disability.

E. Disability Retaliation

Finally, Guzman contends that the district court erred in

granting summary judgment on her disability retaliation

claim. In order to survive summary judgment on this claim,

Guzman must identify evidence showing that (1) she en-

gaged in a statutorily protected activity; (2) she suffered an

adverse employment action; and (3) there is a causal connec-

tion between the two. Dickerson v. Bd. of Trs. of Cmty. Coll.

Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011).

Guzman argues that her termination was an adverse em-

ployment action and that it occurred as a result of her re-

quest for a reasonable accommodation. As previously dis-

cussed, however, it is undisputed that Peltier was unaware

of Guzman’s asserted need for an accommodation when he

decided to fire her. Guzman accordingly cannot establish a

causal link between her request for accommodations and her

subsequent termination.

Guzman additionally asserts that Brown County took an

adverse employment action against her by sending the sher-

iff’s department to repossess her furniture. As previously

noted, however, actions taking place after an employee has

already been terminated do not constitute adverse employ-

ment actions. Reed, 939 F.2d at 492–93. Guzman therefore

cannot establish that Brown County retaliated against her for

exercising her ADA rights.

No. 16-3599 17

III. Conclusion

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.