Caroline Guzman v. Brown County

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3599
CAROLINE GUZMAN,
Plaintiff-Appellant,
v.
BROWN COUNTY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 15-CV-0215 — William C. Griesbach, Chief Judge.
____________________
ARGUED APRIL 21, 2017 — DECIDED MARCH 7, 2018
____________________
Before WOOD, Chief Judge, SYKES, Circuit Judge, and
COLEMAN, District Judge.
COLEMAN, District Judge. Caroline Guzman, a former 911
dispatcher for Brown County, claims that Brown County in-
terfered with her efforts to take leave under the Family Med-
ical Leave Act, discriminated against her because she was
 Of the Northern District of Illinois, sitting by designation.
2 No. 16-3599
disabled, refused to accommodate her disability, and retali-
ated against her for exercising her rights under the Family
Medical Leave Act and the Americans with Disabilities Act.
The district court granted summary judgment in Brown
County’s favor. We affirm.
I. Background
Guzman was employed as a Telecommunication Opera-
tor at the Brown County Public Safety Communications De-
partment 911 Call Center from 2002 until 2013. The 911 Call
Center is responsible for answering all emergency and most
non-emergency calls for the 9 police departments, 18 fire de-
partments, and 2 EMS agencies operating in Brown County
and dispatching those calls to the appropriate entities.
The call center operates around the clock, with nine to
twelve telecommunication operators assigned to each shift.
Guzman previously worked on the third shift under com-
munications supervisor Thomas Smith, but in 2012 she
moved to the day shift, where she was supervised by com-
munications supervisor David Panure. At the time of her
termination in 2013, the call center was overseen by interim
director of public safety Cullen Peltier. Since 2011, Brown
County has had a third-party vendor manage disability,
FMLA, and unpaid leave requests. Employees interested in
these programs directly contact the third-party vendor, and
do not need permission or approval from a supervisor.
Guzman was diagnosed with sleep apnea in February
2006, and was issued a CPAP machine to treat that condition.
In 2008, Guzman had gastric bypass surgery, which resulted
in substantial weight loss. Following the surgery, Guzman
stopped using her CPAP machine, which she threw away in
No. 16-3599 3
2014. Guzman was not re-diagnosed with sleep apnea fol-
lowing her gastric bypass surgery and does not recall if she
ever provided Brown County with documentation concern-
ing her 2006 sleep apnea diagnosis.1
Public Safety Communications Center employees’ con-
duct is governed by a policy manual, which requires that
employees report to work when scheduled and be ready to
relieve their counterpart at the scheduled start of their shift.
Brown County employs a progressive discipline system,
which escalates from verbal warnings to written warnings
(also known as performance reports), suspension, and ulti-
mately termination.
During her employment, Guzman was subject to a num-
ber of disciplinary actions. She received five verbal or writ-
ten warnings concerning her use of vacation time or casual
time between 2004 and 2013. She also received three verbal
or written warnings for failure to timely complete mandato-
ry proficiency tests, as well as one verbal warning for failure
to report to work on a date that she mistakenly believed that
she was not scheduled to work. In November 2012, Guzman
was questioned by the Brown County Sheriff’s Department
regarding potential professional misconduct, but was
cleared of the allegations following a hearing. Guzman took
FMLA leaves unrelated to her sleep apnea in 2007, 2008,
2010, and 2011, and several of these disciplinary actions took
place shortly after her return from those leaves.
1 Although Guzman repeatedly asserted that Brown County knew
about her 2006 diagnosis, the portions of the record that she relied on
provide no support for that proposition.
4 No. 16-3599
Guzman was disciplined for being late to work in Sep-
tember 2011, June 2012, August 2012, and December 2012.
On February 9, 2013, Guzman failed to report at the start of
her shift. Her supervisor, Panure, called her repeatedly and,
when the calls went unanswered, requested that the Sheriff’s
department dispatch a deputy to check on Guzman. The
deputy made contact with Guzman, who subsequently ar-
rived at work. On February 25, 2013, Guzman attended a
meeting to address her February 9, 2013, tardiness. At that
meeting, Guzman was given a three-day suspension and
warned that if she was late again she could be fired. Guzman
attributed her tardiness on February 9 to having slept
through her alarms and made no mention of sleep apnea.
Guzman’s suspension was to be served on March 4, March
11, and March 12, 2013.
On March 8, 2013, Guzman was again late for work.
Panure informed Peltier, who decided to terminate Guz-
man’s employment. When she arrived at work, Guzman
asked Panure if it would be helpful for her to have a doctor’s
note regarding her absence, and was informed that it would
be. Although she might have mentioned her sleep apnea to
Panure during that conversation, it is undisputed that he did
not convey that information to Peltier.
That evening, Guzman called her psychiatrist, Dr.
Stamm, to obtain a note excusing her tardiness. In light of
Guzman’s medical history, Dr. Stamm felt that it was likely
that Guzman was suffering from recurrent sleep apnea, and
accordingly wrote a note stating that Guzman “most proba-
bly” had sleep apnea, and that she needed to be retested and
treated for that condition.
No. 16-3599 5
On March 15, 2013, Panure, Smith, and Peltier met with
Guzman, and informed her that she was being terminated.
Guzman, in turn, provided the March 8, 2013, note written
by Dr. Stamm. The parties dispute whether Guzman provid-
ed the note before or after she was informed of her termina-
tion. They also dispute whether Guzman requested FMLA
leave during or after that meeting. Notwithstanding Guz-
man’s note or verbal requests, her employment was termi-
nated on that date.
In an unrelated series of events relevant to Guzman’s
claims in this case, a replevin judgment was entered against
Guzman in Brown County’s small claims court in favor of
Lebakkens Inc. on October 11, 2012. A writ of replevin was
simultaneously issued, directing the Brown County Sheriff’s
Department to deliver furniture in Guzman’s possession to
Lebakkens. Guzman was served with the writ of replevin on
November 14, 2012. After several months, Lebakkens filed
an ex parte application for a warrant to permit the Brown
County Sheriff’s Department to use reasonable and neces-
sary force to enter Guzman’s residence in order to secure the
return of the items, which was granted on April 4, 2013.
Guzman testified that both the issuance of such a warrant
and its execution by nine deputies was abnormal. She also
testified that a Lebakkens employee had informed her that it
had sought the warrant based upon a sheriff deputy’s repre-
sentation that Guzman would not voluntarily return the fur-
niture in question.
On February 25, 2015, Guzman filed the complaint in this
action, alleging Family Medical Leave Act (FMLA) interfer-
ence and FMLA retaliation in violation of 29 U.S.C. § 2601 et
seq., disability discrimination and retaliation in violation of
6 No. 16-3599
the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112
et seq., and discrimination in violation of the Rehabilitation
Act, 29 U.S.C. § 794, et seq. Following the close of discovery,
Brown County moved for summary judgment, which the
district court granted. This appeal followed.
II. Discussion
We review the district court’s grant of summary judg-
ment de novo, construing the evidence and drawing all rea-
sonable inferences in Guzman’s favor. Petties v. Carter, 836
F.3d 722, 727 (7th Cir. 2016). Summary judgment is appro-
priate only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A. FMLA Interference
Guzman first contends that the district court erred in
granting summary judgment on her FMLA interference
claim. The FMLA entitles eligible employees suffering from
serious health conditions to twelve workweeks of leave dur-
ing each twelve-month period. 29 U.S.C. § 2612(a)(1)(D). The
FMLA also makes it unlawful for an employer to interfere
with an employee’s attempt to exercise FMLA rights or to
retaliate against employees who exercise their FMLA rights.
29 U.S.C. § 2615. In order to prevail on a FMLA interference
claim, an employee must establish that (1) she was eligible
for the FMLA’s protections, (2) her employer was covered by
the FMLA, (3) she was entitled to leave under the FMLA, (4)
she provided sufficient notice of her intent to take leave, and
(5) her employer denied her FMLA benefits to which she was
entitled. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006).
No. 16-3599 7
It is undisputed that Guzman was eligible for FMLA pro-
tection and that Brown County was subject to the FMLA.
Guzman contends that she was also entitled to leave under
the FMLA. An employee is entitled to FMLA leave if (1) she
is afflicted with a “serious health condition” and (2) that
condition renders her unable to perform the functions of her
job. Id. at 477–78. Guzman asserts, without citation to sup-
porting legal authority, that sleep apnea is a chronic condi-
tion meeting the definition of “serious health condition” un-
der the FMLA regulations. The FMLA defines a serious
health condition as “an illness, injury, impairment, or physi-
cal or mental condition that involves—(A) inpatient care in a
hospital, hospice, or residential medical care facility; or (B)
continuing treatment by a health care provider.” 29 U.S.C.
§ 2611(11). Here, it is not altogether clear that Guzman suf-
fered from sleep apnea in 2013. Although Guzman had been
diagnosed with sleep apnea seven years prior, she had not
been diagnosed since that time,2 sought no further treatment
for that condition, and had reported that she no longer suf-
fered from the symptoms of sleep apnea. Even if Guzman
did suffer from sleep apnea, moreover, she has offered no
evidence that she received inpatient care for that condition
or was subject to continuing treatment for that condition at
2 On March 8, 2013, Guzman obtained a note from Dr. Stamm, her
treating psychiatrist, reading “[t]he above patient most probably has
sleep apnea. Please excuse her tardiness due to oversleeping. She needs
to be re-tested and treated for that condition.” Dr. Stamm’s note did not
diagnose Guzman with sleep apnea or state that her oversleeping was a
result of sleep apnea. Instead, it indicated that her oversleeping “proba-
bly” was a result of sleep apnea—a logical suspicion based on her past
diagnosis—and that she needed to be tested so that she could be diag-
nosed with sleep apnea and treated appropriately.
8 No. 16-3599
the time of her leave request. To the contrary, she concedes
that she was not seeing any medical professional for her
sleep apnea and had thrown away her CPAP machine.
Guzman has accordingly failed to introduce any evidence
capable of establishing that she suffered from a “serious
health condition” under the FMLA.
Guzman also failed to identify evidence capable of estab-
lishing that she provided adequate notice of her need for
FMLA leave. Typically, an employee must give notice of the
need for FMLA leave at least 30 days in advance but, if the
need for leave is not known in advance, an employee may
give notice “as soon as practicable under the facts and cir-
cumstances of the particular case.” 29 C.F.R. § 825.303(a).
[T]he employee’s duty is merely to place the
employer on notice of a probable basis for
FMLA leave. [She] doesn’t have to write a brief
demonstrating a legal entitlement. [She] just
has to give the employer enough information
to establish probable cause, as it were, to be-
lieve that [she] is entitled to FMLA leave.
Aubuchon v. Knauf Fiberglass, GmbH, 359 F.3d 950, 953 (7th
Cir. 2004).
Guzman argues that she orally requested FMLA leave
during her March 8 conversation with Panure. Although
perhaps supported by the record, this argument was not
raised by Guzman in her brief opposing summary judgment
in the district court, and is therefore waived on appeal. Puffer
v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) (citations
omitted).
No. 16-3599 9
Guzman also argues that Brown County had constructive
notice of her need for FMLA leave. We have previously rec-
ognized that clear abnormalities in an employee’s behavior
can provide constructive notice to an employer of serious
health conditions that require FMLA leave. Byrne v. Avon
Prods., Inc., 328 F.3d 379, 381–82 (7th Cir. 2003).3 Here, Guz-
man contends that Brown County was on constructive notice
of her medical condition because her six late arrivals be-
tween September 2011 and March 2013 were uncharacteristic
with her performance history.
The cases in which we have previously found possible
constructive notice of the need for FMLA leave have entailed
stark behavioral changes, such as an employee who sudden-
ly and uncharacteristically began aggressively shouting at
coworkers over minor occurrences. See, e.g., Stevenson v. Hyre
Elec. Co., 505 F.3d 720, 726–727 (7th Cir. 2007). Six incidents
of oversleeping, spread over eighteen months, do not consti-
tute the sort of stark and abrupt change which is capable of
providing constructive notice of a serious health condition.
Guzman, moreover, attributed some of her late arrivals to
non-medical factors such as her car not starting or using her
cellphone as an alarm clock. These admissions of non-
medical excuses further dispel any potential constructive no-
tice provided by her tardiness. Guzman has therefore failed
3 We acknowledge that other circuits have called the continued ap-
plicability of Byrne and its progeny into question in light of the 2009
amendments to 29 C.F.R. § 825.303(a). See, e.g., Scobey v. Nucor Steel-
Arkansas, 580 F.3d 781, 788 (8th Cir. 2009). That issue, however, has not
been presented here, and its resolution is not necessary to the present
case. We accordingly assume, without deciding, that Byrne continues to
apply for the purposes of this appeal.
10 No. 16-3599
to produce evidence capable of establishing that Brown
County had constructive notice of her sleep apnea.
Guzman alternatively argues that she gave Brown Coun-
ty actual notice of her belief that she suffered from sleep ap-
nea on March 15, when she requested FMLA leave. Alt-
hough it is disputed whether she raised this issue before or
after being informed that she was being terminated, if at all,
it is undisputed that the decision to terminate her was made
before Peltier had any knowledge that Guzman had request-
ed FMLA leave or believed that she had sleep apnea. Guz-
man therefore cannot establish that she was denied FMLA
benefits to which she was entitled. See Cracco v. Vitran Ex-
press, Inc., 559 F.3d 625, 636 (7th Cir. 2009) (quoting Throne-
berry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 977 (8th Cir.
2005) (“[A]n employer who interferes with an employee’s
FMLA rights will not be liable if the employer can prove it
would have made the same decision had the employee not
exercised the employee’s FMLA rights.”)); see also Nicholson v.
Pulte Homes Corp., 690 F.3d 819, 828 (7th Cir. 2012) (affirming
summary judgment on the plaintiff’s FMLA interference
claim where the employee asked for leave after the termina-
tion decision had already been made). Accordingly, the dis-
trict court did not err in granting summary judgment in
Brown County’s favor on Guzman’s FMLA interference
claim.
B. FMLA Retaliation
Guzman contends that the district court erred by con-
cluding that her FMLA retaliation claim could not survive
summary judgment. In order to prevail on a FMLA retalia-
tion claim, a plaintiff must present evidence that she was
subject to an adverse employment action that occurred be-
No. 16-3599 11
cause she requested or took FMLA leave. Preddie v. Bartholo-
mew Consol. Sch. Corp., 799 F.3d 806, 819 (7th Cir. 2015). It is
undisputed that Peltier decided to fire Guzman on March 8,
2013. It is also undisputed that, if Guzman informed Panure
of the possibility that she suffered from sleep apnea, he did
not relay that information to Peltier. Accordingly, Guzman
cannot establish a causal link between requests for FMLA
leave on or after March 8, 2013, and her termination.
Guzman appears to alternatively contend that she was
subjected to retaliation for past FMLA leaves. Guzman took
FMLA leave from October 2010 through March 2011, and on
June 5, 2011, was disciplined for failure to complete required
trainings. Guzman again took FMLA leave from October 14
to October 21, 2011, and on November 2, 2011, was again
disciplined for failing to complete required training. Guz-
man also received subsequent discipline in January and June
of 2012 regarding vacation issues, as well as the previously
described discipline for tardiness. A sheriff’s deputy was also
sent to check on Guzman when she was late for work, alt-
hough Guzman admits that this had happened a couple of
times previously when telecommunication operators were
late and did not answer the phone.
Guzman has not established that any of the discipline
that she received was unwarranted, and has identified no
direct evidence linking her discipline to her FMLA leaves.
Unfortunately for Guzman, “mere temporal proximity” is
not enough to establish a genuine issue of material fact to
survive summary judgment. Cole v. Illinois, 562 F.3d 812, 816
(7th Cir. 2009) (quoting Andonissamy v. Hewlett-Packard Co.,
547 F.3d 841, 851 (7th Cir. 2008)).
12 No. 16-3599
Guzman also argues that she was subjected to greater
scrutiny and discipline than similarly situated employees
who had not taken FMLA leave. In determining whether two
employees are directly comparable in all material respects,
we consider whether the employees held the same job de-
scription, were subject to the same standards, were subordi-
nate to the same supervisor, and were similarly qualified.
Hull v. Stoughton Trailers, LLC, 445 F.3d 949, 952 (7th Cir.
2006).
Guzman, in a self-drafted document, identifies twenty-
seven coworkers who she contends were late to work but
were not disciplined. Guzman, however, does not consistent-
ly identify when the identified employees were late or how
late they were, what shift they worked at the time of the al-
leged infraction, who their supervisor was at the time of the
alleged infraction, or what their disciplinary history was at
the time of the alleged infraction. See Atanus v. Perry, 520 F.3d
662, 675 (7th Cir. 2008) (recognizing that employers are justi-
fied in reprimanding employees more severely for repeated
errors or infractions). To the contrary, Guzman admits that
some of the identified employees held different job titles or
did not work the same shift as her at the time of their tardi-
ness. Guzman also admits that she does not know whether
any of the putative comparators are disabled or whether
they had used FMLA leave, beyond the fact that they did not
mention it in their conversations with her. Because Guzman’s
evidence cannot establish that her proposed comparators are
similarly situated to her, she cannot establish that she was
treated worse than similarly situated employees as a result
of her past FMLA leaves.
No. 16-3599 13
Finally, Guzman appears to contend that Brown County
retaliated against her by dispatching the Sheriff’s Depart-
ment to assist a private company in repossessing Guzman’s
furniture following her termination. Acts taking place after
an employee is terminated, however, do not constitute ad-
verse employment actions. Reed v. Shepard, 939 F.2d 484, 492–
93 (7th Cir. 1991). Guzman, moreover, has identified no evi-
dence capable of establishing that the execution of the judi-
cially-issued warrant was motivated by her past FMLA re-
quests or other protected conduct.
C. Disability Discrimination
Guzman next contends that the district court erred in
granting summary judgment on her disability discrimination
claims. The ADA and Rehabilitation Act prohibit an employ-
er from discriminating against a qualified individual with a
disability. 4 42 U.S.C. § 12112; 29 U.S.C. § 794. In order to de-
feat summary judgment on her disability discrimination
claim, Guzman must point to evidence capable of establish-
ing that (1) she is a person with a disability within the mean-
ing of the ADA and Rehabilitation Act; (2) she is qualified to
perform the essential functions of her job with or without a
reasonable accommodation; and (3) she suffered from an ad-
4 Brown County contends that Guzman abandoned or waived her
Rehabilitation Act claim in the district court. The district court recog-
nized that Guzman “did not respond to or even address Defendant’s
arguments for summary judgment on the issue of Guzman’s Rehabilita-
tion Act claim.” The district court, however, did not hold that this claim
had been waived or abandoned and instead proceeded to deny it on its
merits. Because the district court ruled on the merits of this issue, we
decline to hold that it has been waived on appeal.
14 No. 16-3599
verse employment decision as a result of her disability. Jack-
son v. City of Chicago, 414 F.3d 806, 810 (7th Cir. 2005).
We need not decide whether Guzman is a qualified indi-
vidual with a disability because, even assuming that she
was, she has failed to identify any evidence establishing that
an adverse employment action occurred as a result of her
alleged disability. Guzman has not identified any evidence
that Peltier knew that Guzman suffered from sleep apnea
prior to deciding to fire her. Instead, the undisputed evi-
dence establishes that Guzman was fired based on her re-
peated failures to show up to work on time, in violation of
multiple provisions of the Public Safety Communications
Center Policy Manual. It might well be the case that Guz-
man’s repeated tardiness was a side effect of undiagnosed
sleep apnea. But “[v]iolation of a workplace rule, even if it is
caused by a disability, is no defense to discipline up to and
including termination.” Budde v. Kane Cnty. Forest Preserve,
597 F.3d 860, 863 (7th Cir. 2010) (citing Pernice v. City of Chi-
cago, 237 F.3d 783, 785 (7th Cir. 2001)). Here, moreover, there
can be no dispute that the rule in question was an important
one and that Guzman’s violations constituted a recurring
pattern of conduct. Accordingly, Guzman has failed to
demonstrate that her termination was a result of her disabil-
ity as opposed to her repeated late arrivals.
D. Failure to Accommodate
Guzman further contends that the district court erred in
rejecting her failure to accommodate claim. In order to pre-
vail on this claim, Guzman would need to point to evidence
showing that (1) she is a qualified individual with a disabil-
ity; (2) her employer was aware of this disability; and (3) her
employer failed to reasonably accommodate the disability.
No. 16-3599 15
E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir.
2005). Generally, an employer is not obligated to accommo-
date an employee’s disability until the employee informs the
employer of the existence of the disability and requests an
accommodation. Jovanovic v. In-Sink-Erator Div. of Emerson
Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000).
Guzman contends that she requested a reasonable ac-
commodation, or, alternatively, that Brown County was on
notice of her disability. There is no evidence, however, estab-
lishing that Brown County was aware of Guzman’s initial
diagnosis of sleep apnea or subsequent treatment. Even
Guzman’s 2011 fitness-for-duty exam, which undisputedly
was received by Brown County, failed to mention sleep ap-
nea, acknowledging only that Guzman “no longer has exces-
sive need for sleep or sleep hunger and is really feeling
much more like her normal self.” Such a general statement,
buried in a psychiatric fitness-for-duty report, is incapable of
providing notice that an employee suffers from a specific,
unmentioned medical condition.
The next possible time that Guzman could have provided
notice was in 2013, either during her March 8 conversation
with Panure or her March 15 termination meeting. The evi-
dence is not conclusive as to whether Brown County was in-
formed that Guzman had sleep apnea on either of these
dates. Even if it was, however, the conduct for which Guz-
man was terminated had already occurred. The undisputed
evidence establishes that Guzman was terminated based on
her repeated late arrivals, the last of which occurred on
March 8, 2013, prior to her conversation with Panure. After
the fact requests for accommodation do not excuse past mis-
conduct. Tate v. Ancell, 551 F. App’x 877, 886 (7th Cir .2014).
16 No. 16-3599
Guzman has accordingly failed to introduce evidence estab-
lishing that Brown County failed to accommodate her al-
leged disability.
E. Disability Retaliation
Finally, Guzman contends that the district court erred in
granting summary judgment on her disability retaliation
claim. In order to survive summary judgment on this claim,
Guzman must identify evidence showing that (1) she en-
gaged in a statutorily protected activity; (2) she suffered an
adverse employment action; and (3) there is a causal connec-
tion between the two. Dickerson v. Bd. of Trs. of Cmty. Coll.
Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011).
Guzman argues that her termination was an adverse em-
ployment action and that it occurred as a result of her re-
quest for a reasonable accommodation. As previously dis-
cussed, however, it is undisputed that Peltier was unaware
of Guzman’s asserted need for an accommodation when he
decided to fire her. Guzman accordingly cannot establish a
causal link between her request for accommodations and her
subsequent termination.
Guzman additionally asserts that Brown County took an
adverse employment action against her by sending the sher-
iff’s department to repossess her furniture. As previously
noted, however, actions taking place after an employee has
already been terminated do not constitute adverse employ-
ment actions. Reed, 939 F.2d at 492–93. Guzman therefore
cannot establish that Brown County retaliated against her for
exercising her ADA rights.
No. 16-3599 17
III. Conclusion
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.