Seventh Circuit Clarifies FMLA Notice and Protected Activity Standards

Practical Law Legal Update w-001-0096 (Approx. 6 pages)

Seventh Circuit Clarifies FMLA Notice and Protected Activity Standards

by Practical Law Labor & Employment

Background

Keith Curtis worked as an optical manager at a Costco in Orland Park, Indiana. Throughout 2011, Curtis was counseled due to customer complaints and his failure to sufficiently schedule his workers. In September 2011, he requested and received FMLA leave due to stress and anxiety. When he returned, his performance did not improve. In April 2012, he was placed on a performance improvement plan (PIP).

In May 2012, one of Curtis's employees notified store management that Curtis told her of a plan to scam the company by taking fraudulent medical leave to secure his managerial pay and position in the event of a demotion. Curtis was demoted to cashier for this violation of Costco's Manager Standard of Ethics. Two days later, he requested and received a second FMLA leave. In June 2012, Curtis requested a transfer to another store, but his request was declined since he was still on leave. In January 2013, Curtis's doctors released him to work in any store other than Orland Park. When a position opened at another store in July 2013, it was given to Curtis.

Before that transfer, Curtis sued Costco in May 2013, alleging:

FMLA retaliation and interference.
ADA discrimination.
Failure to provide reasonable accommodation.

Curtis argued that Costco:

Violated the FMLA when it:
- demoted him from optical manager to cashier; and
- rejected his initial request to be transferred to an alternate store.
Retaliated against him because he told his subordinate he was considering taking a second medical leave.

Outcome

The Seventh Circuit affirmed summary judgment in favor of Costco on the following four claims:

FMLA retaliation.
FMLA interference.
ADA discrimination/disparate treatment.
ADA failure to accommodate.

FMLA Retaliation Claim

Concerning Curtis's FMLA retaliation claim, the Seventh Circuit noted that:

To meet the direct method of proof, a plaintiff must show a causal connection between his engagement in protected activity and an adverse employment action taken against him by the employer (Cracco v. Vitran Express, Inc., 559 F.3d 625, 633 (7th Cir. 2009)).
The FMLA requires an employee to give notice (typically at least 30 days) when the need for leave is foreseeable, or the employer may deny the leave (Aubuchon v. Knauf Fiberglass GMBH, 359 F.3d 950, 951 (7th Cir. 2004)).
An employee who fraudulently obtains FMLA leave from an employer loses any FMLA protections his activity might normally receive (see 29 C.F.R. § 825.216(d)).
Summary judgment for an employer is appropriate when the employer provides undisputed evidence that the adverse employment action resulted from the employee's poor job performance (see Daugherty v. Wabash Center, Inc., 577 F.3d 747, 752–53 (7th Cir. 2009)).
An employer has no obligation to restore an employee to his position if the employee cannot perform his essential job functions (see James v. Hyatt Regency Chicago, 707 F.3d 775, 781 (7th Cir. 2013)).

The Seventh Circuit found that:

Curtis's comment to a subordinate co-worker about planning to take fraudulent medical leave did not constitute sufficient FMLA notice to Costco.
Since Curtis had previously taken FMLA leave, he was presumably aware of Costco's procedure for requesting leave.
Curtis's comment to his co-worker fell outside of FMLA protection because it concerned his intention to scam Costco by taking fraudulent medical leave.
Curtis's retaliation claim failed because Curtis did not establish the causal connection between the comment to his subordinate and his demotion from manager to cashier.
Costco provided undisputed evidence of Curtis's pre-demotion performance issues; meanwhile, Curtis provided no evidence:
- to dispute these performance facts;
- of animus from his superior; or
- to dispute or deny the comment that he made to his subordinate about fraudulent medical leave.
Curtis's claim that Costco retaliated against him by prohibiting him from returning to work when he requested a transfer to a different store failed because:
- When he initially requested the transfer, Curtis was not medically cleared to return to work for another six months; and
- Costco provided a position for Curtis at a different store once he was medically cleared to return to work.

FMLA Interference Claim

The Seventh Circuit found that Curtis's interference claim failed because:

Curtis failed to show he was denied any FMLA benefits or that his demotion interfered with his use of FMLA rights.
Costco provided Curtis with two FMLA leaves of absence, including one that was granted just two days after his demotion.
Once the doctor provided a note releasing Curtis to return to work, Costco reinstated him.

ADA Disparate Treatment and Reasonable Accommodation Claims

Concerning Curtis's ADA claims, the Seventh Circuit noted that:

To make a reasonable accommodation claim, the plaintiff must show that:
- he was a qualified individual with a disability;
- the employer was aware of the disability; and
- the employer did not reasonably accommodate the disability.
A qualified individual with a disability is someone who is disabled under the ADA who can perform the essential functions of the job, with or without reasonable accommodation.

The Seventh Circuit found that:

Curtis waived any arguments concerning his disparate treatment claim by not raising them to the district court or in his opening brief on appeal.
In opposing Costco's summary judgment motion, Curtis:
- simply stated that he satisfied his burden of proof; and
- directed the court to his FMLA claim arguments.
Costco did not fail to provide a reasonable accommodation to Curtis because:
- Curtis was not a qualified individual with a disability;
- Curtis was unable to work at the time he requested (and was denied) a transfer; and
- after his leave ended, he was given the new position he requested once it became available.

Practical Implications

Employers who receive requests for FMLA leave should be on the lookout for potentially fraudulent information submitted by employees. When defending FMLA claims, employers should also verify whether the employee provided sufficient notice as required under the statute.

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