Donna Nicholson v. Pulte Homes Corp

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2238

D ONNA N ICHOLSON,

Plaintiff-Appellant,

v.

P ULTE H OMES C ORPORATION and

C HRIS N AATZ, individually,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 10-cv-833—John W. Darrah, Judge.

A RGUED D ECEMBER 6, 2011—D ECIDED A UGUST 9, 2012

Before P OSNER, F LAUM, and S YKES, Circuit Judges.

S YKES, Circuit Judge. Donna Nicholson was a sales

associate for Pulte Homes Corporation, a national

homebuilder. When she failed to make her sales

quotas for several months in a row, Pulte put her on a

performance-improvement plan and later fired her

when her sales did not improve. Nicholson claimed

that her termination was related to her need to care for

2 No. 11-2238

her ailing parents. She sued Pulte under the Family and

Medical Leave Act (“FMLA” or “the Act”), 29 U.S.C.

§§ 2601 et seq., alleging that the company interfered

with her statutory rights and retaliated against her

in violation of the Act. The district court granted sum-

mary judgment for Pulte on both claims.

We affirm. Nicholson did not put Pulte on adequate

notice that she needed FMLA-qualifying leave to care

for her parents. At most, she made a few casual com-

ments to her supervisors about her parents’ ill

health. Moreover, at the time the decision to terminate

her employment was made, she had asked for only a

single day off to attend a doctor’s appointment with

her father, which her supervisor allowed. Accordingly,

Nicholson has not presented sufficient evidence that

Pulte interfered with her rights under the FMLA. Her

retaliation claim fails for the same reasons and also

because there is no evidence that Pulte imposed the

performance-improvement plan or terminated her em-

ployment as punishment for taking leave.

I. Background

Nicholson began work as a sales associate for Pulte

Homes in 1999. At all relevant times, her supervisors

were Maria Wilhelm and Chris Naatz. Pulte explained

its FMLA-leave procedures in its employee handbook,

which included the following provision regarding how

to give notice of the need for leave:

You must request leave from Human Resources,

not your manager or anyone else. Employees must

No. 11-2238 3

provide 30 days[’] advance notice of the need to take

FMLA leave when the need is foreseeable. Em-

ployees must provide sufficient information for the

Company to determine if the leave may qualify for

FMLA protection and the anticipated timing and

duration of the leave . . . [.] Employees will be re-

quired to provide a certification . . . supporting the

need for leave.

Nicholson understood that the handbook applied to her.

In 2005 Nicholson’s father was diagnosed with leu-

kemia. His condition progressively deteriorated there-

after, but he lived independently and generally took

care of himself. Occasionally, Nicholson attended a doc-

tor’s appointment with her father (five times or so

in four years) to help him remember information. Nichol-

son’s mother lived with her but did not require in-

home care. Nicholson administered her mother’s med-

ication, reminded her to eat (she could fix simple meals

on her own), paid her bills, and attended some doctor’s

appointments with her mother on her days off (though

her mother was able to drive and run basic errands on

her own). At some point—Nicholson could not remem-

ber exactly when—her mother was diagnosed with

chronic kidney disease.

In 2007 Pulte placed Nicholson on a performance-

improvement plan for failing to meet her monthly sales

goals. She continued to struggle in early 2008, receiving

an evaluation from Wilhelm that focused on her need

to achieve greater consistency in meeting her monthly

goals. Wilhelm also noted Nicholson’s need to improve

her poor attitude, which was causing her sales to suffer.

4 No. 11-2238

In December 2008 Nicholson first spoke of her father’s

condition to Wilhelm. Specifically, Nicholson men-

tioned that she might need time off in the first quarter

of 2009 due to her father’s possible need for chemother-

apy. Wilhelm offered to do anything she could to

help. Nicholson testified in her deposition that the

matter was “left open-ended” because of the uncer-

tainties surrounding her father’s need for treatment.

On February 15, 2009, Nicholson received another

performance evaluation from Wilhelm, this time noting

that when Nicholson maintained a positive attitude

and sustained effort, she was capable of being a

successful salesperson, and emphasizing the need for

consistency in her performance. In a follow-up email,

Wilhelm reminded Nicholson of the importance of

making her sales goals every month, saying that

“[c]onsistency will be extremely important as it was in

2008.” Also in February, Wilhelm became concerned that

Nicholson was not properly managing buyers’ expecta-

tions. In March Pulte received two customer complaints

about Nicholson. One stated that “Donna . . . is rude,

condescending and unprofessional,” and “I will not be

buying a Pulte home from you because of Donna.” Another

customer reported that she hung up on Nicholson out

of frustration with her unwillingness to wrap up a con-

versation. Then, during an important field-operations

meeting, Nicholson was unable to answer questions

pertaining to her sales area, leading Naatz to question

her knowledge, preparedness, and attitude. Wilhelm

raised these concerns with Nicholson and asked her to

acknowledge them by return email. Nicholson did so.

No. 11-2238 5

That same month Nicholson had a “casual conversa-

tion” with Naatz and other Pulte employees about the

challenges of dealing with aging parents and alluded to

her father’s illness. Naatz recalled only that Nicholson

mentioned wanting to downsize her home because too

many people were living with her. Nicholson never

said anything else to Naatz about her parents’ health.

In March or April, Nicholson’s mother experienced a

significant weight loss. Shortly thereafter, Nicholson

mentioned her mother’s condition to Wilhelm for the

first time. Specifically, Nicholson told Wilhelm that she

was driving her mother to medical appointments on

her days off to minimize interference with her work

schedule. Wilhelm again offered to do anything she

could to help.

On April 25 Nicholson asked Wilhelm for permission to

take April 27 off to attend a doctor’s appointment with

her father to help him understand and retain his

doctor’s advice. Wilhelm gave Nicholson the day off

but rescheduled a mandatory meeting that had been

planned for that day to a time before normal business

hours to avoid a conflict with the medical appointment.

After the appointment, Nicholson told Wilhelm that

her father’s diagnosis had worsened to stage III cancer.

Nicholson did not make a single sale during the

month of April. In response, and also based on concerns

about the customer complaints and Nicholson’s lack of

knowledge during the field-operations meeting, Naatz

asked Wilhelm to prepare a performance-improvement

plan for Nicholson. On May 5 Naatz and Wilhelm gave

6 No. 11-2238

Nicholson a written warning and performance-improve-

ment plan that identified her poor attitude and failure

to make her sales goals as areas of deficiency. The

plan established a modest goal of two net sales in both

May and June. Although Pulte’s performance-improve-

ment plans were normally 30 days in duration, the com-

pany gave Nicholson 60 days based on her longevity

with the company. But she was also told that her perfor-

mance would be assessed beginning May 31 and that

her employment might be terminated before the plan

expired if she did not make sufficient progress. When

she received the performance-improvement plan, Nichol-

son told Wilhelm that she could not work outside

her normal hours because of her responsibilities to her

parents. But she did not say she anticipated a need for

time off. At Wilhelm’s request Nicholson sent another

email to Naatz confirming that she understood the com-

pany’s concerns about her lagging performance.

Nicholson made no sales at all during May and June.

On June 22 Naatz, Wilhelm, and a company executive

decided to terminate Nicholson’s employment. Naatz

and Wilhelm testified that the termination decision was

made before Nicholson’s performance-improvement

plan expired because she had not shown any improve-

ment in her attitude or effort and did not make any

sales. They did not notify Nicholson of their decision

that day, however. Instead, they delayed meeting

with Nicholson for two days—until June 24, the end

of her workweek—so they could arrange coverage at

Nicholson’s sales office.

No. 11-2238 7

On the morning of June 23, Nicholson contacted

Wilhelm to tell her that she would not be in that

day because she had to take her mother to the emer-

gency room. Wilhelm excused Nicholson from work

and notified Naatz and an administrative assistant that

Nicholson was taking a personal day off. The next after-

noon Nicholson received a call from the hospital

about her mother; at about 3 p.m., she asked Wilhelm

for permission to leave work to attend to her mother in

the hospital. Wilhelm agreed. At the end of that

day—June 24—Wilhelm went to Nicholson’s office to

notify her of the termination decision. She did not give

Nicholson a specific reason for the termination. But

Nicholson testified that at the time she assumed that

she was fired for failing to meet the terms of her

performance-improvement plan.

Sometime later, Nicholson’s former sales partner Juan

Chaidez asked Wilhelm about Nicholson’s termination.

Wilhelm told him she could not discuss the reasons for

the termination. At some point during this conversa-

tion, Wilhelm mentioned that Nicholson had “some

personal family matters to attend to.” She did not say,

however, that Nicholson’s parents’ medical conditions

played any role in the termination decision.

Nicholson sued Pulte and Naatz alleging that they

interfered with her FMLA rights and retaliated against

her in violation of the Act. The district court granted

Pulte’s motion for summary judgment on both claims. The

court held that Nicholson’s interference claim failed

because she provided insufficient notice of her intent

8 No. 11-2238

to take FMLA leave. The court rejected the retaliation

claim for essentially the same reason, concluding that

because Nicholson never engaged in FMLA-protected

activity, she could not prevail on a claim of retaliation.

II. Discussion

Nicholson’s appeal rests primarily on her contention

that the district court impermissibly construed the

factual record in Pulte’s favor instead of hers. We review

the court’s summary-judgment ruling de novo, con-

struing all facts and reasonable inferences in the light

most favorable to Nicholson, the nonmoving party. Righi

v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011). Summary

judgment is appropriate when the material facts are

undisputed and the moving party is entitled to judg-

ment as a matter of law. Id.

The FMLA permits an eligible employee to take up to

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

[with] a serious health condition.” 29 U.S.C. § 2612(a)(1)(C).

An employer may not “interfere with, restrain, or deny

the exercise of or the attempt to exercise” any FMLA

rights. Id. § 2615(a)(1). Nor may an employer retaliate

against an employee for exercising FMLA rights. See id.

§ 2615(a)(2) (prohibiting “any employer to discharge

or in any other manner discriminate against any indi-

vidual for opposing any practice made unlawful by

this subchapter”); id. § 2615(b) (making it unlawful for

any employer to discharge or discriminate against

anyone for exercising rights under the FMLA); see also

No. 11-2238 9

Kauffman v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir.

2005) (“We have construed [§ 2615(a)(2) and (b)] to

create a cause of action for retaliation.”). An interference

claim requires proof that the employer denied the em-

ployee FMLA rights to which she was entitled; a retalia-

tion claim requires proof of discriminatory or retaliatory

intent. Goelzer v. Sheboygan County, Wis., 604 F.3d 987,

995 (7th Cir. 2010); Kauffman, 426 F.3d at 884-85.

A. FMLA Interference

To prevail on an FMLA interference claim, an employee

must show that: (1) she was eligible for FMLA protection;

(2) her employer was covered by the FMLA; (3) she was

entitled to leave under the FMLA; (4) she provided suffi-

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

employer denied her the right to FMLA benefits. Burnett

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

the focus is on the fourth and fifth elements: whether

Nicholson provided sufficient notice to Naatz or

Wilhelm of her intent to take FMLA-qualifying leave

and whether Pulte denied her FMLA benefits to which

she was entitled.1

1

Pulte also disputes the third element and argues that Nichol-

son did not establish her entitlement to FMLA leave in the

first place. It is undisputed that Nicholson’s father had stage III

cancer and her mother was ultimately diagnosed with kidney

disease. FMLA regulations explicitly list both of these

diagnoses as “serious health conditions.” See 29 C.F.R.

(continued...)

10 No. 11-2238

Pulte first argues that the interference claim fails

because Nicholson did not follow the company’s internal

notice procedures. It is true that FMLA regulations gen-

erally permit an employer to enforce notice and other

procedural requirements for invoking FMLA leave: “An

employer may require an employee to comply with

the employer’s usual and customary notice and

procedural requirements for requesting leave, absent

unusual circumstances.” 29 C.F.R. § 825.302(d). Accord-

ingly, we have held that an employee’s failure to

comply with an internal leave policy is a sufficient

ground for termination and forecloses an FMLA claim.

See Righi, 632 F.3d at 411-12 (citing cases). Pulte requires

its employees to notify the human-resources depart-

ment—not just a supervisor—of their need for FMLA

(...continued)

§ 825.115(e)(2). Pulte claims that the regulations further

require that the employee certify that the family member is

“unable to care for his or her own basic medical, hygienic, or

nutritional needs or safety, or [be] unable to transport himself

or herself to the doctor.” Id. § 825.124(a). The regulation in

question is illustrative only; it describes the kinds of situa-

tions in which employees might be needed to care for family

members and may use FMLA leave. Here, Nicholson went

with her father to a medical appointment to help him retain

information and instructions from his doctor. On her days

off, she also attended doctor’s appointments with her mother,

who was less independent and needed more assistance.

A reasonable jury could find that Nicholson qualified for

FMLA leave to care for her parents.

No. 11-2238 11

leave. Nicholson did not do so and therefore failed to

comply with Pulte’s internal leave policy.

But unlike in Righi, Pulte was not terminated for exces-

sive absenteeism or failure to follow FMLA leave proce-

dures. She was terminated for performance problems.

On the two occasions when she asked for time off to

attend to her parents—once in April and again on June 23,

after the decision to terminate her had been made—she

simply followed Pulte’s usual and customary procedures

for requesting non-FMLA leave by contacting her super-

visor, who approved the requests. Because an employee

can be completely ignorant of the benefits conferred by

the FMLA and still be entitled to its protections, see

Stoops v. One Call Commc’ns., Inc., 141 F.3d 309, 312

(7th Cir. 1998), the more pertinent question is whether

Nicholson put Pulte on inquiry notice that she wanted

FMLA-qualifying leave, see id.; see also Aubuchon v. Knauf

Fiberglass, GmbH, 359 F.3d 950, 953 (7th Cir. 2004) (“[T]he

employee’s duty is merely to place the employer on

notice of a probable basis for FMLA leave.”).

To put Pulte on inquiry notice, Nicholson was not

required to specifically refer to the FMLA so long as she

“alert[ed] [her] employer to the seriousness of the

health condition.” Stevenson v. Hyre Elec. Co., 505 F.3d 720,

725 (7th Cir. 2007).2 And where, as here, the need for

2

An employee may be excused from specifically expressing

a need for medical leave in certain limited situations—when,

for example, the employee’s circumstances obviously suggest

(continued...)

12 No. 11-2238

leave concerns a family member rather than the

employee herself, the employee should also indicate that

leave is sought to care for that person. See 29 C.F.R.

§ 825.302(c) (providing that notice may state “that

the condition renders the family member unable to per-

form daily activities”); see also id. § 825.124(a) (defining

when an employee is “needed to care for” a family mem-

ber). If Nicholson provided sufficient notice that she

needed time off to care for her seriously ill parents, then

Pulte had a duty to inquire further to confirm Nichol-

son’s FMLA entitlement. Aubuchon, 359 F.3d at 953 (citing

29 C.F.R. §§ 825.302(c), 825.303(b), 825.305(d)).

Here, the evidence falls short of establishing inquiry

notice. Nicholson had one “casual conversation” with

Naatz and others about the challenges of dealing with

aging parents and may have mentioned her father’s

condition. This is clearly insufficient as a matter of

law to notify Naatz that FMLA-qualifying leave was

needed. Wilhelm knew more, but still not enough to

give rise to the duty to inquire further. With respect to

Nicholson’s mother, prior to June 22—the day the deci-

sion was made to fire Nicholson—Nicholson had only

2

(...continued)

the need for medical leave. See Byrne v. Avon Prods., Inc., 328

F.3d 379, 381-82 (7th Cir. 2003). Assuming this exception is

available where the employee is caring for a family member,

it does not apply here. Nicholson has not shown that her

parents’ medical conditions resulted in a “dramatic, ob-

servable change” in her work performance. See Burnett v.

LFW Inc., 472 F.3d 471, 479-80 (7th Cir. 2006).

No. 11-2238 13

told Wilhelm that she was driving her mother to

medical appointments on her days off and that she could

not work outside her normal hours because of her respon-

sibilities to her parents. Nicholson never indicated that

she needed time off to care for her mother; nor did

she describe the seriousness of her mother’s condition.

Whether Nicholson gave sufficient notice to Wilhelm

regarding her father is a closer question. Nicholson told

Wilhelm in December 2008 about her father’s cancer

diagnosis and said that she might need time off in the

first quarter of 2009 due to her father’s possible need for

chemotherapy. Nicholson herself characterized the

matter as “open-ended” because of the uncertainties

surrounding her father’s need for treatment. After that

Nicholson asked for, and was granted, one day off in

April 2009 to attend a medical appointment with her

father. She later told Wilhelm that her father’s diagnosis

had worsened to stage III cancer, but did not mention

a possible need for additional time off. Thus, while Wil-

helm was alerted to the seriousness of Nicholson’s

father’s health condition, she was not on notice that

Nicholson needed medical leave to care for him.

Nicholson relies on Burnett, but that case is easily

distinguishable. Burnett involved FMLA leave for an

employee’s own medical needs, not for the purpose

of caring for an ill family member. In Burnett the

employee gave “an account of symptoms and com-

plaints, which formed a coherent pattern and progres-

sion, beginning with initial symptoms, continuing with

doctor’s visits, and then additional testing and re-

14 No. 11-2238

sults—all communicated (in one form or another) to [his

supervisor].” 472 F.3d at 480. This, we held, was suf-

ficient to place the employer on inquiry notice. Id. at 478.

Here, there was no similar pattern of communication.

And because it was Nicholson’s parents—not Nicholson

herself—who suffered from serious medical conditions,

the need for FMLA leave was not as obvious as it was

in Burnett. While Nicholson did inform Wilhelm of her

father’s serious diagnosis, she did not communicate

that she needed time off to care for him. At most, she

commented on the possibility that she might in the

future have a need to take time off to care for her father.

But Nicholson herself said the matter was “left open-

ended” because of uncertainties surrounding her father’s

need for care. Thereafter, on just one occasion, she asked

for—and was granted—a day off to attend a doctor’s

appointment with him. There were no leave requests

pending when Naatz and Wilhelm decided to ter-

minate Nicholson’s employment. Nicholson’s conversa-

tions with Wilhelm were too indefinite to put Pulte

on FMLA inquiry notice.

The facts we have just discussed illuminate another

problem with Nicholson’s claim. There is insufficient

evidence that Pulte did anything to deny or otherwise

interfere with Nicholson’s right to FMLA benefits. At

no time did Wilhelm decline Nicholson’s request for

leave; on the contrary Wilhelm offered to do anything

she could to help. Nicholson makes a half-hearted

attempt to argue that her request for a day off on April 27

to attend her father’s doctor’s appointment was only

No. 11-2238 15

partially granted. But Wilhelm excused Nicholson

during regular business hours that day and merely re-

scheduled a mandatory meeting to the early morning

hours to accommodate the medical appointment.

Of course, a termination may constitute a denial of

benefits. See Kauffman, 426 F.3d at 884 (7th Cir. 2005) (“A

claim under the FMLA for wrongful termination can be

brought under either a discrimination/retaliation or

interference/entitlement theory . . . .”). But here, Naatz and

Wilhelm made the decision to terminate Nicholson two

months after Wilhelm granted her isolated leave request

and before any additional requests were made. Nicholson

suggests that the decision was made on June 24—not

June 22—after she asked for time off on June 23 to take

her mother to the hospital. This is entirely speculative.

Wilhelm and Naatz testified that they made the decision

to terminate Nicholson on June 22 based on her failure

to show any progress on her performance-improve-

ment plan. They also testified that they postponed noti-

fying Nicholson until the end of her workweek two

days later so that they could arrange coverage for her

office. There is nothing in the record contradicting

this account. Accordingly, the district court properly

entered summary judgment in Pulte’s favor on

Nicholson’s FMLA interference claim.

B. FMLA Retaliation

As a threshold matter, Nicholson’s retaliation claim

requires some evidence that she engaged in FMLA-pro-

tected activity. See Burnett, 472 F.3d at 481-82. The

16 No. 11-2238

district court held that because Nicholson did not

provide sufficient notice of the need for FMLA-qualifying

leave, she never engaged in any activity protected by

the FMLA. For the reasons we have explained, we

agree. But even assuming that Nicholson engaged in

protected activity—assuming, that is, that her request

for a day off on April 27 to attend her father’s medical

appointment counted as a request for FMLA leave—her

retaliation claim still falls short.3

A retaliation claim requires proof of discriminatory

or retaliatory intent, which can be established directly or

indirectly. Kauffman, 426 F.3d at 884. Under the direct

method of proof, the plaintiff must have sufficient evi-

dence, direct or circumstantial, that her employer

intended to punish her for requesting or taking FMLA

leave. Smith v. Hope Sch., 560 F.3d 694, 702 (7th Cir.

2009). Additionally, the plaintiff can try to prove retali-

atory intent indirectly by showing that she was

performing her job satisfactorily but was treated dif-

ferently from similarly situated employees who did not

request FMLA leave. Id. Nicholson attempts both

methods of proof. The undisputed evidence plainly

establishes that Nicholson was not performing her job

satisfactorily, so her case under the indirect method fails

at the first step in the analysis. As for the direct method

3

Nicholson also alleges that she engaged in protected

activity on June 23 by requesting leave to take her mother to

the emergency room. As previously discussed, however,

Pulte had already decided to fire her at that point.

No. 11-2238 17

of proof, Nicholson offers only circumstantial evidence

of retaliatory intent, and it comes up short.

First, Nicholson points to what she claims is suspicious

timing, noting that Naatz instructed Wilhelm to place

her on a performance-improvement plan on April 26,

the day after she asked Wilhelm for a day off to attend

her father’s doctor’s appointment. But there is no

evidence that Naatz knew about Nicholson’s request for

a day off or the reason for it. Moreover, there is ample

evidence that Naatz imposed the performance-improve-

ment plan because of Nicholson’s failure to make a

single sale in April and for other on-the-job prob-

lems—namely, her lack of knowledge about her sales

area and two specific customer complaints.

Nicholson also argues that the “shifting and inconsis-

tent” timing of the termination decision is circum-

stantial evidence of retaliatory intent. There is simply

no evidence to support this claim. Naatz and Wilhelm

testified that they made the decision to terminate Nichol-

son on June 22 because she had not made progress on

her performance-improvement plan; indeed, Nicholson

failed to make a single sale in either May or June. They

also testified that they delayed notifying Nicholson

of their decision until June 24 to arrange coverage at

Nicholson’s sales office. There is no inconsistency or

“shifting” rationale here, and no evidence contradicts

their account.

Finally, Nicholson contends that she was treated dif-

ferently than other sales associates who were placed on

performance-improvement plans. This contention rests

18 No. 11-2238

primarily on her assertion that it was unusual for

the company to terminate an employee before the ex-

piration of a performance-improvement plan. But the

evidence is undisputed that Nicholson’s plan was

itself unusual—she was given 60 days instead of the

usual 30 to improve, and she was also told that she

was subject to termination if she showed insufficient

improvement at the end of the first month. She also

notes that only a few sales associates actually made or

exceeded their sales goals in 2009 based on the down-

turn in the housing market, and not all those who failed

to meet their targets were fired. This general trend

among sales agents is too attenuated to raise an

inference that Naatz and Wilhelm were motivated by

retaliatory intent. The district court properly entered

summary judgment for Pulte on Nicholson’s retaliation

claim.

A FFIRMED.

8-9-12