Cindy Barrett v. Illinois Department of Correct , 803 F.3d 893 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2833
CINDY BARRETT,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 12-CV-2024 — Michael P. McCuskey, Judge.
____________________
ARGUED SEPTEMBER 15, 2014 — DECIDED OCTOBER 20, 2015
____________________
Before FLAUM, KANNE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Employees in the Illinois Department
of Corrections (“IDOC”) can be fired if they accumulate
12 unauthorized absences from work. Under IDOC’s absen-
teeism policy, unauthorized absences accrue on an employ-
ee’s record but are automatically expunged if the employee
has a clean attendance history for a period of 24 consecutive
months.
2 No. 13-2833
Cindy Barrett was fired from her job at IDOC in October
2010 after accumulating 12 unauthorized absences over a
period of seven years. She claims that three of these absenc-
es—on December 15, 2003; December 22, 2004; and
August 10, 2005—were for family or medical care and thus
were protected by the Family and Medical Leave Act
(“FMLA” or “the Act”), 29 U.S.C. §§ 2601 et seq. In January
2012 she sued IDOC for violating her rights under the Act.
The district court concluded that the suit was time-barred
and entered judgment for IDOC.
We affirm. An FMLA suit must be filed “not later than
2 years after the date of the last event constituting the al-
leged violation for which the action is brought.” Id.§ 2617(c)(1). Here, the alleged FMLA violations occurred,
and the limitations period began to run, when IDOC denied
Barrett’s requests for leave and classified the three contested
absences as unauthorized—not, as she contends, when she
was fired years later as a consequence of her overall attend-
ance record.
I. Background
In December 1995 Barrett began work at IDOC as an ac-
count technician. At that time IDOC maintained a system of
progressive discipline for repeat unauthorized absences.
Disciplinary measures ranged from an oral reprimand to
suspensions of increasing duration, and after ten unauthor-
ized absences, the employee could be fired. Unauthorized
absences accrued on the employee’s record until the employ-
ee went two years without receiving one; at that point the
record was expunged.
No. 13-2833 3
Barrett’s first unauthorized absence occurred on
December 15, 2003. She contends that this absence was one
of three that were FMLA protected and thus should not have
been classified as unauthorized.
More specifically, Barrett alleges that on December 14,
2003, she was admitted to the emergency room with pneu-
monia. Following doctor’s orders, she called in to work and
asked to use sick leave for the following day. When she
returned to work on December 16, she gave her supervisor a
copy of her diagnosis and her hospital wristband, but she
was told that she lacked sufficient sick leave to cover her
request. On January 13, 2004, she went before the Employee
Review Board to challenge this absence. Barrett furnished a
work-release form from her doctor recommending that she
take off work on December 15. Nevertheless, she was found
“guilty” of being absent without authorization and received
a verbal reprimand.
Barrett does not contest her second, third, and fourth un-
authorized absences. Her fifth unexcused absence occurred
on December 22, 2004. The previous day, Barrett’s daughter
was hospitalized after experiencing pre-term labor, and that
night Barrett notified her supervisor that she would miss
work the following day to attend to her daughter. She was
indeed absent from work the next day. When she returned
on December 23, she completed paperwork explaining her
absence. At a hearing before the Employee Review Board on
January 14, 2005, she was again found “guilty” of an unau-
thorized absence because she did not have any sick leave
available. Under the attendance policy then in effect, Barrett
received a three-day “paper suspension,” meaning she still
reported for work and suffered no lost wages.
4 No. 13-2833
Barrett’s sixth unauthorized absence occurred on
August 10, 2005, when she left work for physical therapy. On
September 28, 2005, the Employee Review Board found her
“guilty” of an unauthorized absence and imposed another
paper suspension, this time for five days. She lost no work
time or wages.
Barrett does not contest her seventh and eighth unau-
thorized absences, but the latter bears mentioning for anoth-
er reason. In October 2007 Barrett was suspended for three
days after accumulating an eighth unauthorized absence on
October 3. Under the attendance policy in place at the time,
this suspension was not merely “on paper” but was actually
enforced. Barrett suffered three days’ lost hours and wages.
In September 2008 IDOC and its employees’ union nego-
tiated and adopted a more lenient attendance policy. Em-
ployees were now subject to termination after accumulating
12 (rather than 10) unauthorized absences, and all suspen-
sions would be “on paper” until the employee’s eleventh
unexcused absence. The expungement feature of the poli-
cy—erasing accrued unauthorized absences after a clean
attendance record for 24 consecutive months—remained in
place.
Barrett does not contest her ninth, tenth, eleventh, or
twelfth unauthorized absences, the last of which occurred on
May 14, 2010. On September 30, 2010, Barrett was suspended
without pay pending termination for excessive absenteeism.
She was fired on October 15, 2010.
Barrett sought review before the Illinois Civil Service
Commission. She did not raise an FMLA argument at the
hearing. (Indeed, she never raised the FMLA with her su-
No. 13-2833 5
pervisors or before the Employee Review Board either.) An
administrative law judge recommended that the termination
be sustained. The Commission adopted that recommenda-
tion, and Barrett did not pursue further review in Illinois
state court.
Instead, on January 27, 2012, she sued IDOC in federal
court for violating her rights under the FMLA. At the sum-
mary-judgment stage, the district court concluded that the
suit was barred by the FMLA’s two-year statute of limita-
tions. § 2617(c)(1). Barrett had urged the court to find that
the limitations period began to run when her employment
was terminated on October 15, 2010. If the limitations clock
started on that day, the suit was timely; she filed it
17 months later, within the two-year period. IDOC main-
tained, on the other hand, that the alleged FMLA violations
accrued many years earlier, when Barrett was denied leave
for each of the three absences she now claims were statutori-
ly protected.
In a thorough opinion, the district judge agreed with
IDOC, found the suit untimely, and granted IDOC’s motion
for summary judgment. See Barrett v. Ill. Dep’t of Corr.
(“Barrett I”), 958 F. Supp. 2d 984 (C.D. Ill. 2013). This appeal
followed.
II. Discussion
Resolving this appeal requires us to interpret and apply
the FMLA’s statute of limitations in the context of an absen-
teeism policy based on a system of progressive discipline.
6 No. 13-2833
This is a legal question of first impression in this circuit. 1
Our review is de novo. James v. Hyatt Regency Chi., 707 F.3d
775, 779 (7th Cir. 2013) (“We review a district court’s grant of
summary judgment de novo.”); Breneisen v. Motorola, Inc.,
656 F.3d 701, 704 (7th Cir. 2011) (“A district court’s interpreta-
tion of a federal statute such as the FMLA is a question of
law which we review de novo.”).
We begin with the statutory text. The FMLA provides
that “an action may be brought under this section not later
than 2 years after the date of the last event constituting the
alleged violation for which the action is brought.” 2
§ 2617(c)(1). To determine when the claim accrued, the
statute tells us to identify the “last event” constituting the
alleged FMLA violation.
As relevant here, the FMLA makes it unlawful for an
employer to “interfere with, restrain, or deny the exercise of
1 There is little authority on this question elsewhere, and it points in
divergent directions. Compare Reed v. Lear Corp., 556 F.3d 674, 681 (8th Cir.
2009) (holding that “[a]n FMLA violation occurs when an employer
improperly denies a request for leave[,]” not when the employee is later
fired for excessive absenteeism), and Maher v. Int’l Paper Co., 600 F. Supp.
2d 940, 950 (W.D. Mich. 2009) (same), with Butler v. Owens-Brockway
Plastics Prods., Inc., 199 F.3d 314, 317 (6th Cir. 1999) (holding that a
plaintiff who was fired for excessive absenteeism may challenge her
termination under the FMLA even though the limitations period for the
two absences she claimed were FMLA protected had long since expired).
Both Reed and Butler—the two appellate decisions—are thinly reasoned;
Butler does not even mention the text of the FMLA’s statute of limita-
tions. We find the out-of-circuit caselaw unhelpful.
2 For willful violations, the limitations period is extended to three years.
See 29 U.S.C. § 2617(c)(2). Barrett does not allege that IDOC willfully
violated the FMLA.
No. 13-2833 7
or the attempt to exercise, any right provided under this
subchapter.” 3 29 U.S.C. § 2615(a)(1). One such right—the one
at issue in this case—is the employee’s entitlement to “a total
of 12 workweeks of leave during any 12-month period” for
the purpose of family and medical care. Id. § 2612(a)(1).
Because the FMLA does not expressly define “leave,” we
apply its ordinary meaning. In the workplace context,
“leave” equates to “an authorized absence or vacation from
duty or employment.” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1287 (1993). To prove an FMLA claim based on a
denial of qualifying leave, a plaintiff must show some im-
pairment of his rights and resulting prejudice. Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 90 (2002).
Barrett alleges that IDOC improperly denied leave on
three specific occasions. 4 More particularly, she claims that
three of her 12 unexcused absences—December 15, 2003;
December 22, 2004; and August 10, 2005—were for qualify-
ing family or medical leave, but IDOC mistakenly classified
them as unauthorized. On each of these occasions, Barrett
notified her supervisor of her impending absence, was
absent without authorization, and later went before the
Employee Review Board to challenge IDOC’s decision to
treat the absence as unexcused. Each time the Board rejected
Barrett’s request for leave, recorded the absence as unauthor-
3 Another subsection makes it unlawful for an employer to “discharge or
in any other manner discriminate against any individual for opposing
any practice made unlawful” under the statute. 29 U.S.C. § 2615(a)(2).
This subsection is not at issue here.
4 She does not allege that IDOC unlawfully “interfered with” or “re-
strained” the exercise of her FMLA rights. Id. § 2615(a)(1).
8 No. 13-2833
ized, and imposed some form of discipline (a reprimand, a
three-day paper suspension, and a five-day paper suspen-
sion). Barrett maintains that by classifying these absences as
unauthorized, IDOC violated the FMLA. Her claim, in short,
is one for denial of leave guaranteed to her by the Act.
When an FMLA plaintiff alleges that his employer violat-
ed the Act by denying qualifying leave, the last event consti-
tuting the claim ordinarily will be the employer’s rejection of
the employee’s request for leave. So it is here. Each time the
Employee Review Board ruled against Barrett, an actionable
FMLA claim accrued and the limitations clock started to run.
With each ruling Barrett’s FMLA rights were impaired and
she suffered prejudice: her request for leave was wrongly
denied (or so she alleges) and she was harmed by the classi-
fication of her absence as unauthorized, which increased the
number of unexcused absences on her record. 5
It’s immaterial that the denial of leave came in the form of
a retrospective hearing rather than a rejection of a prospec-
tive request for leave. If IDOC had denied a request for leave
before she was absent, Barrett would have had a viable claim
that IDOC denied her attempt to exercise a right guaranteed
to her by the FMLA. The fact that the absences were classi-
fied as unauthorized in an after-the-fact hearing does not
change the nature of the alleged FMLA violation. In both
5 She also suffered a reprimand and two paper suspensions, but the real
prejudice at issue here is the classification of these absences as “unau-
thorized.” Moreover, Barrett’s eighth unauthorized absence—in October
2007—resulted in an actual suspension and loss of three days’ wages, so
even if “prejudice” is measured from this later date, the suit is still
untimely.
No. 13-2833 9
scenarios the employer’s denial of the employee’s request for
leave is the “last event constituting the alleged violation” on
which the action is based.
So the two-year limitations period began to run each time
the Board ruled against Barrett’s request for leave to cover
the specific absences she challenges in this suit. Those rul-
ings came at the conclusion of hearings held on January 13,
2004; January 14, 2005; and September 28, 2005. Her suit—
filed in January 2012—was several years too late.
The district judge went beyond the text of § 2617(c)(1) to
draw an analogy between the FMLA and Title VII. See
Barrett I, 959 F. Supp. 2d at 992–93. We’re skeptical that the
analogy is particularly useful or appropriate here. The
FMLA is fundamentally prescriptive in nature; it accords a
benefit to employees. Title VII is fundamentally proscriptive;
it prohibits discrimination in employment on the basis of
race, color, religion, sex, or national origin. See 42 U.S.C.
§ 2000e-2. We’ve noted this distinction before, though not in
the context of a statute-of-limitations question. See Diaz v.
Fort Wayne Foundry Corp., 131 F.3d 711, 712 (7th Cir. 1997)
(rejecting the McDonnell Douglas burden-shifting paradigm
as inapposite to benefit-denial claims under the FMLA). In
Diaz we explicitly distinguished the basic FMLA inquiry—
whether an employer has “honor[ed] statutory entitlements”
regardless of having “treated all employees identically”—
from the basic Title VII inquiry—“whether the employer
treated one employee worse than another on account of
10 No. 13-2833
something (race, religion, sex, age, etc.) that a statute makes
irrelevant.” 6 Id.This distinction is evident in the different language of the
two statutory schemes. Under Title VII an aggrieved em-
ployee must file a claim “within one hundred and eighty
days after the alleged unlawful employment practice occurred.”
42 U.S.C. 2000e-5(e)(1) (emphasis added). An “unlawful
employment practice” is an act of discrimination based on a
protected characteristic and resulting in a “refus[al] to hire,”
“discharge,” or “depriv[ation] … of employment opportuni-
ties.” Id. § 2000e-2(a). As such, a Title VII claim requires
some “materially adverse employment action.” Lewis v. City
of Chicago, 496 F.3d 645, 652 (7th Cir. 2007).
The FMLA uses different language. An aggrieved em-
ployee must bring an FMLA claim “not later than 2 years
after the date of the last event constituting the alleged violation
for which the action is brought.” § 2617(c)(1) (emphasis
added). The substantive provision at issue here prohibits an
employer from interfering with, restraining, or denying an
6 In analogizing between Title VII and the FMLA, the district court noted
that “[b]oth utilize the same McDonnell Douglas burden-shifting para-
digm.” Barrett v. Ill. Dep’t of Corr. (“Barrett I”), 958 F. Supp. 2d 984, 990
(C.D. Ill. 2013). But that is true only for claims brought under the discrim-
ination component of the FMLA, which as we’ve noted, supra at p. 7 n.3,
prohibits employers from discharging or discriminating against any
person for opposing a practice made unlawful by the FMLA.
§ 2615(a)(2). That is not this case. Barrett has not been discriminated
against for asserting her FMLA rights. Indeed, she never explicitly
asserted her statutory rights at all prior to this litigation. Thus, her FMLA
action is not for discrimination or retaliatory discharge but for “denial of
benefits.”
No. 13-2833 11
employee’s exercise of or attempt to exercise any rights pro-
tected by the Act. See § 2615(a)(1). In a claim for violation of
§ 2615(a)(1), then, there is no requirement of a “materially
adverse employment action.” Rather, as we’ve noted, in a
denial-of-benefits claim, the Supreme Court has held that an
FMLA plaintiff must show only some impairment of his
rights and resulting prejudice. Ragsdale, 535 U.S. at 90.
But even assuming that the analogy to Title VII is appro-
priate in this context, Barrett could not prevail. The limita-
tions period for a Title VII claim runs from the date the
unlawful employment practice occurred, and the Supreme
Court has held that for claims based on “discrete acts” of
retaliation or discrimination, the “discrete retaliatory or
discriminatory act ‘occurred’ on the day that it ‘happened.’”
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002).
This rule applies even if an old, unchallenged discriminatory
act has a present effect on an employee’s status in a seniority
system, a progressive discipline system, or some other
dynamic employment scheme. “A discriminatory act which
is not made the basis for a timely charge … is merely an
unfortunate event in history which has no present legal
consequences.” United Air Lines, Inc. v. Evans, 431 U.S. 553,
558 (1977) (emphasis added). So the “discrete act” that starts
the Title VII limitations clock is the discriminatory decision
itself, not the “consequences of the act[]” that may materialize
down the road. Del. State Coll. v. Ricks, 449 U.S. 250, 258
(1980) (citation omitted).
There is an exception to this general rule. Under the
“continuing violation” doctrine, a Title VII plaintiff may
recover for otherwise time-barred conduct that is part of a
single, ongoing unlawful employment practice if at least one
12 No. 13-2833
related act occurs during the limitations period. See Morgan,
536 U.S. at 116–18. As the Supreme Court clarified in Morgan,
however, this doctrine is limited to claims of hostile work
environment. “Hostile environment claims are different in
kind from discrete acts. Their very nature involves repeated
conduct.” Id. at 115. “[T]he theory is that ‘[a] hostile work
environment claim is composed of a series of separate acts
that collectively constitute one ‘unlawful employment
practice.’” Swanson v. Village of Flossmoor, 794 F.3d 820, 826
(7th Cir. 2015) (quoting Morgan, 536 U.S. at 117). As such, a
Title VII claim for hostile work environment is timely “as
long as ‘any act falls within the statutory time period,’ even
if the [claim] encompasses events occurring prior to the
statutory time period.” Adams v. City of Indianapolis, 742 F.3d
720, 730 (7th Cir. 2014) (quoting Morgan, 536 U.S. at 120).
Barrett’s claim is not analogous to a claim for hostile
work environment. She alleges that she was wrongly denied
family or medical leave on three specific occasions. On the
rationale of Morgan, these are “discrete acts”—
independently actionable violations of the FMLA—and each
one triggered its own limitations clock.
Still, Barrett insists that although she could have filed suit
at the moment she was denied leave, she wasn’t required to
file suit until several years later, when she was fired for
accumulating too many unauthorized absences. The termi-
nation of her employment, she says, was the last event
constituting the FMLA violation.
There are two problems with this argument. First, it as-
sumes that there can be more than one last event under
§ 2617(c)(1). That’s not a reasonable reading of the statute.
Second, Barrett’s argument is really a plea for a tolling rule
No. 13-2833 13
that would hold the limitations period in abeyance indefi-
nitely and revive a stale denial-of-leave claim years later,
when the employee is fired based in part on the contested
absence. Nothing in § 2617(c)(1) supports such an open-
ended tolling rule. 7
Barrett objects that the result compelled by the statutory
text leaves the FMLA toothless in a workplace that operates
under a no-fault absenteeism policy and a system of pro-
gressive discipline. She says it’s impractical to sue each time
leave is wrongly denied, especially when the immediate
consequence is nothing more than a reprimand or paper
suspension and another unauthorized absence logged on the
employee’s absenteeism record. Maybe so.
But the FMLA contains both judicial and administrative
remedies in its enforcement edifice. See 29 U.S.C. § 2617(a),
(b). Under the Secretary of Labor’s authority to enforce the
FMLA, the Wage and Hour Division “investigates com-
plaints,” endeavors to “satisfactorily resolve[]” violations,
and “bring[s] action in court to compel compliance.” U.S.
Dep’t of Labor, Wage & Hour Division, Fact Sheet #77B:
Protection for Individuals Under the FMLA, http://dol.gov/whd/
regs/compliance/whdfs77b.pdf (December 2011). This bifur-
7 Under Barrett’s proposed rule, an IDOC employee who was denied
leave for her first absence could theoretically wait nearly 24 years before
she would have to litigate that claim. And the only upward boundary on
that timeframe is IDOC’s policy of expunging unauthorized absences
after an unblemished 24 months. Employers with a longer reset period—
or those who keep a permanent running tally—would face the prospect
of ancient FMLA claims cropping up decades after the violation is
alleged to have taken place. That result is not only unreasonable but
wholly inimical to the purpose of a statute of limitations.
14 No. 13-2833
cated enforcement structure suggests that Congress was
aware that private litigation may not always be the most
practical or desirable means of vindicating rights under the
FMLA.8 Seen in this light, what Barrett portrays as a road-
block to litigating her claim is instead an intentional detour
away from federal court and toward a federal agency.
For the foregoing reasons, Barrett’s FMLA suit was time-
barred, and the district court properly granted summary
judgment for IDOC.
AFFIRMED.
8 Empirical evidence suggests that the overwhelming majority of FMLA
claimants elect administrative resolution over private litigation. See Ben
James, Rising Tide Of FMLA Claims Unlikely To Recede, Attys Say, LAW360
(Aug. 13, 2014, 7:03 PM), http://www.law360.com/articles/566997; U.S.
Dep’t of Labor, Wage & Hour Division, Bridge to Justice: Wage and Hour
Connects Workers To New ABA-Approved Attorney Referral System,
http://www.dol.gov/whd/resources/ABAReferralPolicy.htm (September
2014).