Aubuchon, Steve v. Knauf Fiberglass ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-1382
STEVE AUBUCHON,
Plaintiff-Appellant,
v.
KNAUF FIBERGLASS, GMBH,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. IP 01-392-C B/F—Sarah Evans Barker, Judge.
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ARGUED OCTOBER 20, 2003—DECIDED MARCH 8, 2004
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Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Steve Aubuchon sued his former
employer, Knauf Fiberglass, for violations of the Family and
Medical Leave Act, 29 U.S.C. §§ 2601 et seq., and he appeals
from the grant of summary judgment in favor of Knauf. So
far as bears on this case, the Act entitles an employee to
twelve work weeks of leave without pay during any twelve-
month period if he needs the leave in order to care for his
spouse’s “serious health condition.” 29 U.S.C. §
2612(a)(1)(C). A “serious health condition” is sensibly
defined in a regulation issued by the Department of Labor
2 No. 03-1382
to include “any period of incapacity due to pregnancy, or
for prenatal care.” 29 C.F.R. § 825.114(a)(2)(ii); see Navarro
v. Pfizer Corp., 261 F.3d 90, 95 (1st Cir. 2001); Martyszenko v.
Safeway, Inc., 120 F.3d 120, 122 (8th Cir. 1997). If the need for
the leave is foreseeable at least 30 days in advance, the
employee must provide that much notice, 29 U.S.C. §
2612(e)(2)(B); 29 C.F.R. § 825.302(a), so that the employer
can minimize the disruptive effect of an unscheduled leave
on his business. But if, though the need is foreseeable, “30
days notice is not practicable, such as because of a lack of
knowledge of approximately when leave will be required to
begin, a change in circumstances, or a medical emergency,
notice must be given as soon as practicable.” 29 C.F.R. §
825.302(a). Similarly, in the case in which the need for the
leave is not foreseeable at least 30 days in advance, notice
must be given “as soon as practicable under the facts and
circumstances of the particular case.” 29 C.F.R. § 825.303(a).
It is important to note that if the required notice, whether
30 days or “as soon as practicable,” is not given, the em-
ployer can deny leave even if the spouse does have a serious
health condition. See Collins v. NTN-Bower Corp., 272 F.3d
1006, 1008-09 (7th Cir. 2001); Bailey v. Amsted Industries Inc.,
172 F.3d 1041, 1046 (8th Cir. 1999); Brohm v. JH Properties,
Inc., 149 F.3d 517, 523 (6th Cir. 1998). Conditioning the right
to take FMLA leave on the employee’s giving the required
notice to his employer is the quid pro quo for the em-
ployer’s partial surrender of control over his work force.
Employers do not like to give their employees unscheduled
leave even if it is without pay, because it means shifting
workers around to fill the temporary vacancy and then
shifting them around again when the absentee returns. The
requirement of notice reduces the burden on the employer.
Mrs. Aubuchon’s predicted date of delivery was August
19, 2000. Her pregnancy thus far had been uneventful. A
No. 03-1382 3
day or two before the nineteenth she went into labor but it
proved to be a false alarm and she did not go into “real”
labor until September 1. The baby was born the next day
and mother and child left the hospital on the fourth. At ar-
gument Aubuchon’s lawyer told us that Mrs. Aubuchon
began to have contractions a month before her expected
date of delivery, but there is no support for this in the rec-
ord.
The plaintiff, Steve Aubuchon, first notified his employer
orally that he wanted leave under the Family Medical Leave
Act on August 21, shortly after the false labor. He did not
give complications, false labor, or a serious health condition
as a reason. He just said he wanted to stay home with his
wife until she gave birth. Being pregnant, as distinct from
being incapacitated because of pregnancy or experiencing
complications of pregnancy that could include premature
contractions which unless treated by drugs or bed rest
might result in the premature birth of the baby, is not a
serious health condition within the meaning of the statute
or the applicable regulations. 29 C.F.R. §§ 825.112(c),
.114(a)(2)(ii), (e) (“an employee who is pregnant may be
unable to report to work because of severe morning sick-
ness”); Navarro v. Pfizer Corp., supra, 261 F.3d at 95; Atchley
v. Nordam Group, Inc., 180 F.3d 1143, 1150-51 (10th Cir.
1999); Pendarvis v. Xerox Corp., 3 F. Supp. 2d 53, 55-56
(D.D.C. 1998); Gudenkauf v. Stauffer Communications, Inc., 922
F. Supp. 465, 474-76 (D. Kan. 1996). Wanting to stay home
with one’s wife until she has the baby, while understand-
able, is not the same thing as wanting to stay home to care
for a spouse who has a serious health condition. 29 U.S.C. §
2612(a)(1)(C); 29 C.F.R. § 825.112(a)(3); Sahadi v. Per-Se
Technologies, Inc., 280 F. Supp. 2d 689, 698 (E.D. Mich. 2003);
Chenoweth v. Wal-Mart Stores, Inc., 159 F. Supp. 2d 1032,
1035, 1037-39 (S.D. Ohio 2001); see Caldwell v. Holland of
Texas, Inc., 208 F.3d 671 (8th Cir. 2000).
4 No. 03-1382
Maybe Mrs. Aubuchon did have a serious health condi-
tion connected with her false labor. The record contains
a note from her doctor saying that she was experiencing
“complications,” although they are not explained—but the
note was submitted to Knauf after Aubuchon’s request for
leave had been denied; and the employer has, as we said, a
right to be notified of the existence of the serious health
condition as soon as practicable. The requirement of notice
is not satisfied by the employee’s merely demanding leave.
He must give the employer a reason to believe that he’s
entitled to it. Collins v. NTN-Bower Corp., supra, 272 F.3d at
1008; Stoops v. One Call Communications, Inc., 141 F.3d 309,
312-13 (7th Cir. 1998); Satterfield v. Wal-Mart Stores, Inc., 135
F.3d 973, 977 (5th Cir. 1998). If you have brain cancer but
just tell your employer that you have a headache, you have
not given the notice that the Act requires.
On September 1, Aubuchon followed up his oral request
for FMLA leave by giving his employer a filled-in form that
the employer furnishes for requesting such leave. But nei-
ther in that form, nor in subsequent communications with
his employer prior to September 4, when his request for
FMLA leave was denied, did Aubuchon say that his wife
was having complications. Meanwhile, he had not shown
up for work since sometime before August 19, and his un-
excused absence put him over the limit allowed to employ-
ees by Knauf’s attendance policy and so Knauf fired him.
Aubuchon’s union grieved his discharge, and Knauf agreed
to reinstate him without backpay, and this was done. But
then the company discovered that Aubuchon had falsified
his original employment application by failing to disclose
that he had been fired by previous employers— for exces-
sive absenteeism!—and so it fired him again, this time for
keeps.
It wasn’t until after he was fired the first time that
No. 03-1382 5
Aubuchon produced the note from his wife’s obstetrician
saying that she had had complications in her pregnancy.
That was too late, as we have said. Employees should not be
encouraged to mousetrap their employers by requesting
FMLA leave on patently insufficient grounds and then after
the leave is denied obtaining a doctor’s note that indicates
that sufficient grounds existed, though they were never
communicated to the employer.
Aubuchon claims that basing a request for FMLA leave on
patently insufficient grounds should operate as a signal to
the employer that the employee may not understand the
contours of the duty of notice. The employee may think that
if his wife is having a complicated pregnancy he has only to
tell his employer that he needs to stay home with his wife
until the baby is born; he needn’t state a reason. Some of the
regulations that the Department of Labor has issued suggest
that merely by demanding leave, the employee triggers a
duty on the part of the employer to determine whether the
requested leave is covered by the FMLA. See 29 C.F.R. §§
825.302(c), 303(b). That is an extreme position, as most
leaves requested by employees are not based on a ground
entitling them to leave under the FMLA, so that if the
position were accepted the consequence would be to place
a substantial and largely wasted investigative burden on
employers. The position is rejected, rightly in our view, by
the Collins, Stoops, and Satterfield cases that we cited earlier,
and also by Gay v. Gilman Paper Co., 125 F.3d 1432, 1436
(11th Cir. 1997). These cases hold that unless the employer
already knows that the employee has an FMLA-authorized
ground for leave, as in Miller v. GB Sales & Service, Inc., 275
F. Supp. 2d 823, 829 (E.D. Mich. 2003), the employee must
communicate the ground to him; he cannot just demand
leave. Which is all that Aubuchon did.
So that the scope of our holding is clear, we emphasize
6 No. 03-1382
that the employee’s duty is merely to place the employer on
notice of a probable basis for FMLA leave. He doesn’t have
to write a brief demonstrating a legal entitlement. He just
has to give the employer enough information to establish
probable cause, as it were, to believe that he is entitled to
FMLA leave. That is enough to trigger the employer’s duty
to request such additional information from the employee’s
doctor or some other reputable source as may be necessary
to confirm the employee’s entitlement. 29 C.F.R. §§
825.302(c), .303(b), .305(d); Cavin v. Honda of America Manu-
facturing, Inc., 346 F.3d 713, 723-24 (6th Cir. 2003). The note
from Mrs. Aubuchon’s obstetrician indicating that she was
having “complications” would have sufficed, despite the
absence of details, had Aubuchon submitted it to Knauf
before the company acted on his request for leave.
It is worthy of note that Knauf did not rely on the absence
of reasons, in Aubuchon’s initial oral request for leave, as a
basis for denying the request. Instead it had him fill out a
form that required him to specify the medical condition that
justified his request. 29 C.F.R. § 825.302(d). He failed to do
so. He had no excuse for the failure.
Aubuchon’s second claim—that the company retaliated
against him when it fired him the second time, in violation
of the FMLA, which forbids retaliation for invoking one’s
statutory rights, 29 U.S.C. § 2615 (a)(2); Horwitz v. Board
of Education of Avoca School Dist. No. 37, 260 F.3d 602, 616-
17 (7th Cir. 2001); King v. Preferred Technical Group, 166
F.3d 887, 891 (7th Cir. 1999)—need not detain us for long.
Aubuchon admittedly falsified his job-application form,
which is admitted to be a mandatory ground for discharge
under Knauf’s rules, and there is no evidence that the policy
is applied more harshly to employees who make legal
claims against the company than against other employees
who falsify their application forms. In short, there is no
No. 03-1382 7
evidence that the motive for firing Aubuchon was retalia-
tory. Nor is this a case in which the employer fails to
discover lawful grounds for discharge until after firing the
employee on an improper ground. McKennon v. Nashville
Banner Publishing Co., 513 U.S. 352 (1995); Hartman Bros.
Heating & Air Conditioning, Inc. v. NLRB, 280 F.3d 1110,
1114-16 (7th Cir. 2002); Sheehan v. Donlen Corp., 173 F.3d
1039, 1047-48 (7th Cir. 1999). Aubuchon was not fired on an
improper ground.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-8-04