If You Snooze, You (May) Lose Under the FMLA and ADA, Says the Seventh Circuit
In the recent case of Guzman v. Brown County, No. 16-3599 (March 7, 2018), the Seventh Circuit Court of Appeals affirmed a district court’s grant of summary judgment to an employer on claims brought under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). The holding in the case is important because the Seventh Circuit confirmed a long-standing legal principle in an employer’s favor and clarified that constructive notice (i.e., the employee does not provide actual notice, but the employer nevertheless should have known) of a serious health condition requiring FMLA leave is a narrow exception to the notice requirement under the FMLA. Specifically, the Guzman court held that employment decisions made before notice of a potential serious health condition are shielded from claims of discrimination, interference, or retaliation. The Guzman court also made clear that constructive notice of a serious health condition is limited to narrow situations involving “stark and abrupt change[s]” in an employee’s behavior. In other words, ambiguous attendance issues by an employee most likely cannot serve as constructive notice of a serious health condition.
The plaintiff, Caroline Guzman, was a 911 dispatcher for a county government. The county government provided dispatch services for nine police departments, 18 fire departments, and two EMS agencies. She had previously worked on the third shift but had transferred to the first shift for the relevant time period.
Guzman was diagnosed with sleep apnea in 2006 and treated that condition with a continuous positive airway pressure (CPAP) machine. She then underwent gastric bypass surgery, lost weight, and eventually threw away her CPAP machine because she did not think she needed it anymore. It was unclear if her employer was aware of the sleep apnea diagnosis or CPAP machine treatment.
Guzman was then disciplined for being late to work in September 2011, June 2012, August 2012, and December 2012. On February 9, 2013, she was again late for work. After numerous phone calls to Guzman went unanswered, the dispatch center manager requested that a deputy sheriff check on her. The deputy sheriff made contact with Guzman, who then arrived at work. Guzman claimed that she had slept through her alarms. On February 25, 2013, at a meeting to address her tardiness on February 9, Guzman did not mention sleep apnea. She was given a three-day suspension and warned that she could be fired for another tardy incident.
On March 8, 2013, Guzman was again late for work. Her direct manager immediately informed his manager, who decided to terminate Guzman’s employment that same day. This next-level manager had no notice of any health condition alleged by Guzman. After the tardy incident on March 8, Guzman obtained a medical note attempting to excuse that tardiness due to recurrent sleep apnea and presented the note at the disciplinary meeting on March 15, 2013. Her employment was terminated at that meeting based on her tardy arrival on March 8, 2013.
The Seventh Circuit’s Decision
The Seventh Circuit confirmed the long-standing precedent that an after-the-fact request for FMLA leave does not pose a legal impediment to an employer’s lawful employment decision (including a decision to discharge or discipline an employee) that was made before the leave request was tendered.
More importantly, the Seventh Circuit clarified the standard for determining if an employer has constructive notice of a serious health condition under the FMLA. In prior cases, the Seventh Circuit held that an employer may have had constructive notice when the following incidents occurred: (1) a model employee began sleeping at work; (2) he mumbled odd phrases to his supervisor; (3) a relative informed the employer that the plaintiff was very sick; and (4) the employer learned the plaintiff had been hospitalized. In another case, the Seventh Circuit held that the following incidents could support a finding of constructive notice: (1) when an employee with a flawless record engages in profane outbursts to a manager that results in the employer’s changing the locks out of safety concerns; and (2) when that same employee calls the police because her desk contents were moved.
Employers should take note that the Seventh Circuit has clarified that the constructive notice doctrine for serious health conditions under the FMLA is indeed a narrow exception reserved for “stark and abrupt change[s]” in an employee’s behavior. In the absence of actual notice of a serious health condition, employees with prior attendance issues who then present with additional, ambiguous attendance issues will most likely not be able to invoke the constructive notice exception to the FMLA.