DAVID BURNETT, Plаintiff-Appellant, v. LFW INC., doing business as THE HABITAT COMPANY, Defendant-Appellee.
No. 06-1013
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 18, 2006—DECIDED DECEMBER 26, 2006
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 3835—Charles P. Kocoras, Judge.
I. BACKGROUND
The following facts are recounted in the light most favorable to Burnett, the nonmovant. Burnett began working as a janitor for The Habitat Company (“Habitat”), a property management company, in 1989. Beginning in 1990, Burnett came under the supervision of Sergio Polo. In 1994, Burnett became a “detailer,” responsible for verifying that apartment equipment and furnishings were in working order before the arrival of a new tenant. As a detailer, Burnett was sometimes required to lift heavy objects, such as closet doors and appliances. According to Polo, no complaints regarding Burnett’s performance were brought to his attention before October 2003.
In October 2003, Burnett first informed Habitat that he was experiencing some medical difficulties. That month, Polo offered to transfer Burnett to a different location in the facility, presumably because of recurring conflicts between Burnett and an assistant engineer. Burnett, however, declined the transfer, telling Polo that given his “weak bladder,” he did not wish to transfer to the position, which would result in reduced restroom access. Further, he informed Polo that he was going to see a doсtor to determine the cause of the bladder problem. At the end of November, Polo gave Burnett a verbal warning regarding his performance.
After his week-long absence in December 2003, Burnett again spoke with Polo about his health. On December 11, Burnett presented Polo with a copy of a doctor’s order for blood testing to justify some of his absences. Burnett
On December 16, Burnett met with Polo, other Habitat managers, and a union representative to further discuss his absences. Burnett told the individuals present at the meeting that he had been “sick” during his week-long absence. He elaborated that although he “didn’t look sick,” he felt he was “getting sick or was sick.” And, he named the probable source of his illness by comparing his circumstance with that of his brother-in-law who had been afflicted with prostate cancer. That same day, Polo sent an email to other supervisors informing them that Burnett should be afforded sick lеave on January 6 and 8, 2004, to attend doctor’s appointments.
On January 7, 2004, Burnett notified Habitat that he would be undergoing a prostate biopsy on January 27. Burnett gave one of his supervisors, Mitch Hehr, a document describing the prostate ultrasound and biopsy procedures. The document provided that “[i]ndications for the examination are an abnormal rectal exam or an elevation of prostate cancer screening blood test (PSA).” Under standard Habitat policy, Hehr should have provided Polo with a copy of the document, although Polo denies receiving it. That same day, Polo issued Burnett a reprimand for “substandard work.”
One week later, on January 14, Polo gave Burnett written reprimands regarding two events occurring on that day. First, Polo accused Burnett of wasting company time by disrupting another employee’s work. Second, Polo
Polo met Burnett at the time clock as Burnett prepared to leave work to attend the meeting with Human Resources. At that time, Polo stated that he would not grant Burnett the desired transfer, because Burnett was a “loose cannon.” He also gave Burnett a written reprimand concerning the first episode of the day. When Burnett asked whether that would be his final reprimand, Polo said “no.” Instead, Polo referred to a document in his hand as Burnett’s final reprimand. Burnett claims to have understood Polo’s conduct to indicate that he was being terminated.
Thereafter, Burnett filed a union grievance, and a union meeting was set fоr January 26. On the advice of his union representative, Burnett did not return to work until the day of the union meeting. As a result, Polo issued a reprimand stating that Burnett had missed work on January 15, 16, and 19, and suspended Burnett for three days without pay.
At the union meeting, Burnett told Polo and others that he was scheduled to have a biopsy the following day. He described the biopsy as “a nasty, nasty procedure” involving bleeding and infections. He also stated that if he were ultimately diagnosed with a progressive form of prostate cancer like that of his brother-in-law, he might commit suicide, because he lived alone, had no means of caring for himself, and did not wish to be bedridden.
On January 27, Burnett underwent the prostate biopsy, as scheduled. The next day, Burnett gave Habitat a document entitled “Treatment Plan,” confirming that he had had the biopsy and instructing him to avoid heavy lifting or strenuous activity following the biopsy. It is undisputed that Polo received a copy of the document. Additionally, Burnett spoke to one of his supervisors about his work restrictions and asked for help with his duties. According to Burnett, the supervisor ignored his request, and Burnett agreed to perform his duties to the best of his ability. That same day, Burnett submitted a previously-approved vacation request for the second week of February (the week he anticipated receiving the biopsy results). The next day, January 29, he submitted an additional vacation request, this time for the first week in February, purportedly because he did not get a light duty assignment or the help that he had requested on the previous day and was worried about being injured.
Burnett’s second request for leave set off a flurry of activity among the Habitat supervisors. One supervisor informed Burnett that Polo wished to see him in his office. In response, Burnett asked the supervisor to notify Polo that he felt sick and wanted to go home. Two other supervisors then confronted Burnett at the time clock and demanded that he visit Polo before leaving work. Burnett refused, saying again that he felt sick. At that time, the supervisors сontacted Polo via radio, requesting that Polo immediately meet them (and, by implication, Burnett) at the time clock. When Polo arrived, Burnett told him that he felt sick and wanted to go home. According to Burnett, Polo stated that if Burnett was referring to the “1-27-04 document [the Treatment Plan, which advised Burnett to refrain from heavy lifting], it’s not important.” Burnett replied that the Treatment Plan was important to him and that, “I’m not going to sit here and argue . . . my health is more important than arguing with [you].”
After Burnett left work on January 29, Polo and the other managers met to discuss him. Polo testified that at that point he “probably” knew that Burnett had undergone a prostate biopsy, and that he generally knew that biopsies were a method of testing for cancer. Nonetheless, on February 2, Polo sent a letter to Burnett terminating his employment effective January 30, 2004.
On January 31, Burnett went to the emergency room due to complications from the biopsy. He delivered the discharge paperwork to a colleague on or about February 3, who passed the documents on to a supervisor. Polo testified that he “briefly” looked at the documents, but did not reconsider his decision. On February 10, Burnett was diagnosed with prostate cancer.
Burnett filed suit against Habitat, claiming violations of the FMLA and the ADA. The district court granted summary judgment in favor of Habitat, primarily because it concluded that Burnett could not show that he had provided adequate notice to Habitat that he suffered from a serious health condition, and thus no FMLA or ADA claim could be made. Burnett timely appealed.
II. ANALYSIS
We review a district court’s grant of summary judgment de novo, viewing all facts and the reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. See, e.g., Anders v. Waste Mgmt. of Wis., Inc., 463 F.3d 670, 675 (7th Cir. 2006). Summary judgment is only appropriate where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.”
A. The FMLA Claims
We begin with Burnett’s claims under the Family and Medical Leave Act of 1993,
1. FMLA Interference Claim
To prevail on an FMLA interference claim, an employee need only show that his employer deprived him of an FMLA entitlement; no finding of ill intent is required. Hoge, 384 F.3d at 244. Accordingly, the employee must establish that: (1) he was eligible for the FMLA’s protections, (2) his employer was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled. Id. Habitat concedes that Burnett has satis-
We easily conclude that Burnett has satisfied thе third and fifth elements of an interference claim. With regard to the third prong, Burnett argues, and we agree, that his incapacity due to undiagnosed prostate cancer and the diagnostic procedures pertaining thereto, entitled him to FMLA leave. An employee is entitled to FMLA leave if (1) he is afflicted with a “serious health condition” and (2) that condition renders him unable to perform the functions of his job.
An employee has a “serious health condition” within the meaning of the FMLA, where he has “an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care faсility; or (B) continuing treatment by a health care provider.”
(listing a biopsy as one of a series of procedures qualifying the plaintiff as having a “serious health condition” involv-
As a result of his serious health condition, Burnett was unable to perform at least one of his jоb functions.
The fifth prong of the test need not detain us long as it is beyond dispute that Habitat failed to provide Burnett with requested leave. Indeed, Burnett was terminated before receiving any of the time off that he sought for the month of February. Having concluded that the first, second, third, and fifth elements of an interference case have been satisfied, we turn to the fourth element and the crux of the dispute between the parties—notice.
The notice requirements of the FMLA are not onerous. An employee need not expressly mention the FMLA in his leave request or otherwise invoke any of its provisions. See Phillips v. Quebecor World RAI, Inc., 450 F.3d 308, 311 (7th Cir. 2006) (citing
Although adequacy of notice is a fact-specific question, we have held that in the usual case, an employee’s bare assertion that he is “sick” is insufficient. Phillips, 450 F.3d at 312; Collins, 272 F.3d at 1008.4 Simply put, “[a]n employee’s reference to being ‘sick,’ . . . does ‘not suggest
Although Burnett seeks the benefit of the Byrne exceptions, we conclude that Byrne does not apply here. Burnett cannot show that his medical condition resulted in a dramatic, observable change in his work performance or physical condition. By his own admission, Burnett “didn’t look sick.” Burnett also cannot show that his illness somehow impeded his ability to communicate his health needs to his employer. Accordingly, Burnett is subject to the general notice rule, requiring that he do more than simply declare that he is sick.
Once an employee informs his employer of his probable need for medical leave, the FMLA imposes a duty on the
With this framework in mind, we consider Burnett’s request for leave. The facts of this case present a close question. At no point prior to his termination did Burnett communicate to anyone that he had prostate cancer—nor could he, as he was not diagnosed until shortly after being fired. Habitat therefore insists that in remarking that he was “sick” and “wanted to go home” on January 29, 2004, Burnett did no more than declare “I’m sick.”
This argument effectively disregards the surrounding context of Burnett’s remarks. However, when considered in their proper context, Burnett’s remarks on January 29 were sufficient to put Habitat on notice of his need for medical leave. Over a period of four months, Burnett communicated that: (1) he was suffering from “a weak bladder,” which was severe enough to preclude a potential transfer of assignment; (2) he was on a trajectory of increased medical visits and testing, including a blood test showing an elevated PSA; (3) he had recently had a prostate biopsy (a test that Polo knew was used to diagnose cancer) and requested help in his work duties as a result; (4) he repeatedly stated that he “felt sick” and intimated that his condition may be similar to his brother-in-law’s latent prоstate cancer; and (5) his concerns were significant enough for him to suggest that he might commit suicide if he ended up bedridden as a result of
In response, Habitat argued at oral argument that asking an employer to consider medical information provided over a four-month period to appreciate the context of an employee’s declаration of sickness is a troubling “novel theory,” placing untold obligations on employers. Not at all. In Collins, we specifically noted that the employee could—indeed should—have invoked employer knowledge about her depression, which traced back over one year:
[Plaintiff’s] [d]epression did not come on her overnight. In this suit she contends that it had been developing for years and that she had mentioned the problem to supervisors early in 1997, a year before the absence that led to her discharge. Once Collins knew that she had a problem, she could predict that this would lead her to miss work on occasion, and she could have given the notice contemplated by
§ 825.302 long before March 1998. Then when deрression incapacitated her on a particular day she could have made clear the “serious” nature of her condition by referring to knowledge already in the employer’s possession. A reference to being “sick” not only withheld important information from the employer but likely threw it off the scent. Certainly it did not suggest to the employer that the medical condition might be serious or that the FMLA otherwise could be applicable.
272 F.3d at 1008-09. The point of Collins is that it is entirely appropriate under the FMLA for an employee to
When considered in their proper context, then, Burnett’s declarations on January 29 were more than a vague and untethered claim of sickness. Rather, Burnett’s proclamation of illness was supported by details suggesting a serious health condition. Accordingly, we reverse the grant оf summary judgment on Burnett’s FMLA interference claim.
2. FMLA Retaliation Claim
In making out a charge of retaliation under the FMLA, a plaintiff may proceed under the direct or indirect methods of proof. See Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004). Under the direct method, a
the case must be tried unless the defendant presents unrebutted evidence that he would have taken the adverse employment action against the plaintiff even if he had had no retaliatory motive; in that event the defendant is entitled to summary judgment because he has shоwn that the plaintiff wasn’t harmed by retaliation.
See Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002).6 To proceed under the indirect method, Burnett “must show that after taking FMLA leave (the protected activity) he was treated less favorably than other similarly situated employees who did not take FMLA leave, even though he was performing his job in a satisfactory manner.” Hull v. Stoughton Trailers, LLC, 445 F.3d 949, 951 (7th Cir. 2006). Because Burnett has not identified a similarly situated person treated more favorably than he, he must proceed under the direct method of proof.
Habitat claims that Burnett cannot demonstrate a causal relationship between his request for FMLA leave and his termination because Habitat disclaims knowledge of any protected activity or serious health condition. This argument is essentially identical to the argument that Habitat raises with regard to Burnett’s purported failure to provide adequate notice to Habitat under the FMLA interference claim, and it runs into the same problems discussed above.
As we concluded above, over the course of four months Burnett gave his employer sufficient notice of his serious medical condition. Thereafter, he engaged in protected activity by taking time off upon realizing that he would not be able to perform one of the essential functions of the job and would not be provided an accommodation to assist in pеrforming the tasks. He was subsequently terminated for the allegedly insubordinate act of leaving work on January 29—unquestionably a materially adverse action. Those facts, therefore, suggest a direct, causal connection between the protected activity and adverse action.
Habitat’s assertion that it terminated Burnett on the basis of insubordination does not justify the grant of summary judgment in this case. Although insubordination may be a valid, nondiscriminatory basis for termination, see, e.g., Kahn v. United States Sec’y of Labor, 64 F.3d 271, 279 (7th Cir. 1995), a question of fact remains as to whether this was the true reason for Burnett’s termination.
First, Habitat’s classification of Burnett’s conduct as insubordinate stems in large measure from its mistaken belief that Burnett was not entitled to FMLA leave on
Second, the present factual scenario is different from the normal situation where the alleged insubordination was entirely separate from the request for FMLA leave. Here, Burnett’s alleged insubordinate act was his request for FMLA leave, or at least a key component of it. That is, his dеmand to go home because he felt ill is the very act that Habitat labels as insubordination. Thus, under the circumstances, Habitat has not presented “unrebutted evidence” that it would have terminated Burnett even absent Burnett’s exercise of his FMLA rights. Stone, 281 F.3d at 644. Accordingly, a jury question remains, see id., and Burnett’s FMLA retaliation claim should have survived summary judgment.7
B. The ADA Discrimination Claims
Although we concluded above that Habitat had notice of Burnett’s medical condition, Burnett’s ADA claims fail because the existence of a medical condition does not satisfy the ADA’s disability standard. Indeed, “‘[d]isability’ under the ADA and ‘serious health condition’ under the FMLA are distinct concepts that require different analyses.” Rhoads v. F.D.I.C., 257 F.3d 373, 387 n.12 (4th Cir. 2001) (citing
The ADA prohibits discrimination against “a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
An individual is considered to have a disability under the ADA if (1) he has an impairment that substantially limits one or more of his major life activities; (2) he has a record of such an impairment; or (3) his employer regards him as having such an impairment. See
Burnett cannot satisfy the first option. Burnett would have us find that he was disabled purely because he was suffering from undiagnosed prostate cancer at the time of the adverse employment action. Unfortunately for Burnett, however, typically diagnosis does not prove disability. See
Rather, we must consider the specific facts of Burnett’s case in our assessment of whether he was disabled at the time of his termination. Even giving Burnett the benefit of all inferences, we find he has failed to show that he had an impairment that substantially limited a major life activity. Although Burnett fails to expressly identify the affected major life activity, we will presume that he seeks to show that he was substantially limited in the major life activity of working. Under the ADA, “[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”
Burnett has likewise failed to show that Habitat regarded him as having a substantially limiting impairment. Nothing in the record suggests that Habitat considered Burnett to be impaired or substantially limited in his ability to carry out his duties. Habitat did not alter its expectations of his work performance although it was aware of Burnett’s doctor’s appointments, high PSA, and biopsy. Even when he requested assistance at work following his biopsy, Habitat considered him fully capable and did not provide assistance. Accordingly, we find no basis for concluding that Habitat ever regarded Burnett as disabled. Summary judgment was proper on Burnett’s ADA claims.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s grant of summary judgment on Burnett’s FMLA claims, and AFFIRM the grant of summary judgment as to his ADA claims. We REMAND for further proceedings consistent with this opinion.
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—12-26-06
Notes
(a) For purposes of FMLA, “serious health condition” entitling an employee to FMLA leave means an illness . . . that involves:
. . .
(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
. . .
(iii) Any period of incapacity or trеatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
. . .
(A) Requires periodic visits for treatment by a health care provider . . . ;
(B) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(C) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
. . .
(b) Treatment for purposes of paragraph (a) of this section includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition.