Seventh Circuit Holds That Casual Comments About A Family Member’s Poor Health Are Not Sufficient To Place An Employer On Notice Under FMLA

Clifford Geiger
Clifford Geiger

Donna Nicholson was a sales associate for Pulte Homes.  In April 2009, following several months in which she failed to meet sales goals and generated two customer complaints, Nicholson was placed on a performance improvement plan (PIP).   The PIP required Nicholson sell two homes in both May and June.  Nicholson’s performance did not improve.  On June 22, Nicholson’s supervisors decided to terminate her employment, because she had not made a single sale in May or June.

Nicholson later sued, claiming that her termination was related to her need to care for her ailing parents.  Nicholson contended that Pulte terminated her employment to prevent her from exercising, or in retaliation for exercising, her FMLA rights.  Nicholson also believed that her performance suffered because caring for her parents made her unable to work outside of the regular 10:00 a.m. to 6:00 p.m. workday.

Nicholson’s father was diagnosed with leukemia in 2005, but she did not tell Pulte about her father’s condition until December 2008.  Nicholson told her supervisor that she might need leave to care for her father in early 2009 because of the possibility that his treatment may include chemotherapy. Nicholson left the matter “open-ended,” because of uncertainties about her father’s need for treatment.  Later, in February 2009, Nicholson had a “casual conversation” with several Pulte employees, including one of her supervisors, about the challenges of dealing with aging parents.  Nicholson may have alluded to her father’s condition during this conversation.  On April 25, Nicholson received permission to accompany her father to a doctor’s appointment on April 27.  Nicholson later told her supervisor that her father had stage III cancer, but she did not indicate a need for any time off.

In March or April 2009, Nicholson’s mother experienced a significant weight loss.  Nicholson told her supervisors about her mother’s situation, and that she was driving her mother to doctor’s appointments on her days off.

To establish a claim for FMLA interference, a plaintiff must show that she provided sufficient notice of her intent to take FMLA-qualifying leave.  An FMLA retaliation claim requires proof that the plaintiff engaged in FMLA protected activity (e.g., asking for FMLA-qualifying leave).  Therefore, the key preliminary issue in the case was whether Nicholson put Pulte on notice that she wanted to take FMLA-qualifying leave.  While an employee is not required to mention the FMLA to provide sufficient notice, she must alert the employer to the seriousness of the health condition involved.  And if it is a family member’s serious health condition, the employee also must notify the employer that leave is sought to care for that person.

The Seventh Circuit concluded that Nicholson did not put Pulte on notice of a need for FMLA-qualifying leave.  It held that a casual workplace conversation about aging parents does not notify an employer that an employee needs FMLA-qualifying leave, nor does an employee’s comment on the possibility that she might need leave sometime in the future.   Furthermore, although Pulte knew that Nicholson’s father had a serious health condition, Nicholson never said that she needed (or wanted) time off to care for her father.  Similarly, while Nicholson told her supervisor that she drove her mother to medical appointments on her days off, Nicholson did not describe her mother’s medical condition (it was chronic kidney disease) or indicate that she needed time off to care for her mother.

The Court distinguished its earlier decision in Burnett v. LFW Inc., 472 F.3d 471 (7th Cir. 2006), which it characterized as a case that involved FMLA for an employee’s own medical needs, not for the purpose of caring for an ill family member.   In Burnett the employee regularly communicated with his employer about his symptoms, continuing doctor’s visits, and the results of medical testing, all of which put the employer on notice of a need for FMLA-qualifying leave.  There was no such regular communication from Nicholson, and the fact that it was Nicholson’s parents who were ill, rather than Nicholson herself, made the need for leave less obvious.

Nicholson v. Pulte Homes Corp., 7th Cir., No. 11-2238, 8/9/12.

You can read the opinion at

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