Stevenson v. Hyre Electric Co. , 505 F.3d 720 ( 2007 )

EVANS, Circuit Judge,

dissenting.

Because I am convinced that there are no genuine issues of material fact in this case, I would affirm the grant of summary judgment that Judge Kendall awarded to Hyre.

It is, of course, well-understood that in determining whether a genuine issue of fact exists, courts must view the evidence and draw all reasonable inferences in favor of the party opposing the motion, in this case Stevenson. I part company with the majority, however, as to whether — by any stretch of the imagination — Stevenson is entitled to the inferences being granted to her.

The majority concedes that Stevenson did not properly provide her employer with direct notice of her need for FMLA leave. But the majority then proceeds to find that the employer had constructive notice of Stevenson’s need for leave, based on an exception to the direct notice requirement set out in Byrne v. Avon Products, 328 F.3d 379 (7th Cir.2003). I cannot see how the evidence presented allows any conceivable inferences that bring Stevenson’s case within shouting distance of Byrne.

We said in Byrne that sometimes unusual behavior gives all the notice that is required to inform an employer that an employee needs leave. The Byrne case is, in fact, so dramatic that almost no other conclusion would have been possible. Byrne, who had previously been a model employee, began to fall asleep on the job and failed to show up for work. When his employer telephoned him, his sister said he was “very sick.” In fact, suffering from depression, Byrne himself could not speak beyond “mumbling several odd phrases.” His relatives took him to a hospital — after talking him out of a room in which he had barricaded himself. He began to hallucinate, attempted suicide, and during a panic attack tried to “flush his head down a toilet.” To say that Stevenson’s behavior was comparably unusual to Byrne’s would be to let the exception swallow the rule. I believe that as a matter of law, the “Byrne exception” is not applicable, as, by the way, we found it not to be applicable in Burnett v. LFW, Inc., 472 F.3d 471 (7th Cir.2006).

Although the problem with notice should be considered dispositive, I am also troubled by the majority’s conclusion that Stevenson has raised a factual dispute as to her serious health condition. Stevenson shows that she visited doctors during the relevant period. One of the visits, however, was for an unrelated medical test. A second was to an emergency room where she complained about a stressful incident at work — presumably the unwelcome appearance of the dog. The doctors performed an EKG and a CAT scan, both of which were normal. She was diagnosed with anxiety and prescribed medication to calm her nerves. Anxiety comes in all degrees, however, and Stevenson does not provide information as to how her anxiety level prevented her from working. She also visited her own doctor, who later wrote an excuse for missed work but who never told Stevenson that her condition required her to stay away from her job. During this time, Stevenson was able to meet with a union representative and showed up at Hyre for short periods of time. It is, of course, possible that Stevenson was suffering from a qualifying health condition, but my point here is that she provides no evidence which would prevent summary judgment on the issue. It is not too much to expect her to do that.

Stevenson, who bears the ultimate burden of proof in this case, was obligated at the summary judgment stage to come “forward with properly supported arguments or evidence to show the existence of a genuine issue of material fact.”. Treadwell v. Office of Ill. Secretary of State, 455 F.3d 778, 781 (7th Cir.2006). This she has utterly failed to do.

For these reasons, I respectfully dissent.