In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1641
L ETECIA D. B ROWN,
Plantiff-Appellant,
v.
A UTOMOTIVE C OMPONENTS H OLDINGS, LLC,
and F ORD M OTOR C OMPANY,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:06-cv-1802—Richard L. Young, Chief Judge.
A RGUED N OVEMBER 9, 2009—D ECIDED S EPTEMBER 8, 2010
Before E VANS and S YKES, Circuit Judges, and
D ER-Y EGHIAYAN, District Judge.
S YKES, Circuit Judge. Letecia Brown, an assembly-line
worker at a Ford Motor Company plant in Indianapolis,
The Honorable Samuel Der-Yeghiayan of the United States
District Court for the Northern District of Illinois, sitting by
designation.
2 No. 09-1641
was terminated for being absent from work without
properly following Ford’s leave policies and proce-
dures. She filed suit for sex discrimination and retalia-
tory termination under Title VII and interference with
her rights under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601 et seq. The district court
dismissed her sex-discrimination claim, and Brown
voluntarily dismissed her retaliation claim, leaving
only the FMLA claim before the district court. The
court initially denied Ford’s motion for summary judg-
ment on this remaining claim, but Ford moved for re-
consideration, noting a factual misunderstanding in the
court’s summary-judgment decision. The court agreed
and reversed itself, entering summary judgment dis-
missing Brown’s FMLA claim. Brown appealed.
We affirm. Brown’s appeal addresses only the FMLA
claim, and summary judgment in favor of Ford on that
claim was entirely appropriate. The undisputed facts
establish that Brown was absent without leave after
failing to give proper FMLA notice for an extension of
a previously requested leave period. Specifically, under
the FMLA rules then in effect, Brown had two working
days in which to give Ford notice that she intended to
extend her leave, see 29 C.F.R. § 825.303(a) (2007), and
she failed to do so. Further, an employer is entitled to
adhere to its own leave policies and procedures when
doing so does not otherwise violate the FMLA. Ford’s
termination of Brown’s employment based on her non-
compliance with its internal leave procedures did not
violate the FMLA.
No. 09-1641 3
I. Background
In December 1998 Brown started working for Ford
at the Indianapolis Visteon Plant, where she held several
different assembly-line positions. As an hourly em-
ployee, Brown was subject to the leave policies of the
plant as modified by the Collective Bargaining Agree-
ment (“CBA”). Under the terms of the CBA, an em-
ployee seeking medical leave must have a doctor fill out
a form—called “Form 5166”—and return it to the plant’s
Medical Clinic by the date the leave is to expire. 1 If
the employee fails to return the form on time, she will
be “coded as AWOL.” 2 An employee seeking an exten-
sion of medical leave will also be deemed AWOL if
she does not return the form by the ending date of her
initial period of leave.3 In accordance with the CBA, once
1
Technically, the Clinic administers non-FMLA leave; em-
ployees seeking FMLA leave are to use a different procedure
administered through the plant’s Labor Relations office,
which determines whether the employee is entitled to FMLA
leave and whether the leave sought qualifies under the
FMLA. Brown did not invoke the company’s leave process
for FMLA-qualifying leave, but we need not resolve any
dispute on this issue for purposes of this appeal. Like the
district court, we will give Brown the benefit of the doubt
and treat her absence from work as qualifying FMLA leave.
2
Although the company’s internal leave procedures do not
spell it out, AWOL is an acronym commonly used for “absent
without leave” or “absent without official leave.”
3
The paperwork given to employees taking medical leaves
of absence states in part:
(continued...)
4 No. 09-1641
an employee has gone AWOL, she is sent a five-day
quit notice by registered mail. The quit notice states
that the employee will be terminated unless within five
working days she reports to work or explains in writing
or by phone the reason for the absence. If the employee
chooses to explain the absence over the phone, she must
request a “call-in code number.” Disputes regarding
the procedural requirements of the quit notice are sub-
ject to the United Auto Workers’ (“UAW”) grievance
procedures.
Brown went to the Clinic on August 11, 2006, to re-
quest medical leave and was given the Form 5166 leave
form. Her primary-care physician, Dr. Joyce Bilby, faxed
the completed form to the Clinic on August 21, stating
that the reason for the leave was “stress.” The form indi-
cated that her “return to work date” was August 29;
therefore, her leave was to expire on August 28.
While Brown was on leave, Dr. Bilby referred her to
Dr. James Shoot, a psychiatrist. However, the earliest
appointment Brown could get with Dr. Shoot was
August 29—the same day she was to return to work. To
cover the one-day extension of her leave, Brown sent a
3
(...continued)
You must submit a completed 5166 to justify your
medical condition prior to the ending date of your
medical leave. (This is also the case if an extension is
required beyond the current ending date). If this is not
done, your medical will be considered not justified &
you will be coded as AWOL.
(Emphasis added.)
No. 09-1641 5
fax to Dr. Bilby’s office on August 21, asking that addi-
tional paperwork be sent to the Clinic. She did not
follow up, however, and the Clinic never received a
leave form extending Brown’s leave request through
August 29.
Brown saw Dr. Shoot as scheduled on August 29,
at which time she was diagnosed with depression.
Dr. Shoot recommended that she rest and not return to
work until September 16 and scheduled a follow-
up appointment on September 11. Brown says that
she called the Clinic on August 30 and spoke with
Nurse Angela Diguilio. Ford has no record of this call. On
Brown’s version of events, she told Diguilio that her
doctor had extended her leave to September 16, and the
nurse said she would place a leave form at the Clinic
for Brown to pick up.
Brown did not immediately do so, and because she
had not submitted a Form 5166 extending her leave
through August 29, her leave expired as scheduled on
August 28. On August 31 Ford sent a quit notice to
Brown via certified mail, informing her that she would
be terminated unless she reported to work within
five business days or provided proper verification of
her illness. Brown’s union representative also sent her
a copy of the quit notice by certified mail on August 31.
Brown did not pick up either of these letters until after
she was terminated, though she admits she knew there
was certified mail waiting for her at the post office.
On September 6 Brown went to the Clinic and spoke
with Nurse Irene Rice. Brown showed Rice a hand-
6 No. 09-1641
written note from Dr. Shoot stating, “This person will
require a medically excused absence from work until
9/16/06.” Rice then gave her a leave form to fill out,
and Brown left with the form and Dr. Shoot’s note in
hand. Brown also claims that she called the Clinic some-
time after September 6 and spoke with a nurse. Ac-
cording to Brown, she informed the nurse that she could
not return a completed leave form until September 11
because she was not going to see her doctor until then.
She says the nurse told her to “[j]ust get the paperwork
in as soon as possible.”
Brown had her follow-up appointment with Dr. Shoot
on September 11, and that same day she learned she
had been terminated. On September 12 Brown faxed a
completed leave form to the Clinic. The following
day, September 13, the UAW filed a grievance on her
behalf, but later withdrew it because Brown had not
followed the plant’s leave procedures. Brown then
filed this suit against Ford, Automotive Components
Holdings, LLC, and Visteon Corporation for sex dis-
crimination and retaliatory discharge under Title VII
and interference with her FMLA rights. The district
court dismissed the sex-discrimination claim and
also dismissed Visteon Corporation as a defendant.3
3
Visteon Corporation is no longer a defendant in this action,
although both parties list it as a Defendant/Appellee in their
briefs. During the events at issue, Automotive Components
Holdings, LLC, owned Ford’s Indianapolis plant, having
acquired it from Visteon in 2005. The district court dismissed
(continued...)
No. 09-1641 7
Responding to Ford’s motion for summary judgment,
Brown voluntarily dismissed her retaliation claim,
leaving only the FMLA claim before the district court.
The court initially denied Ford’s summary-judgment
motion on this claim, finding material facts in dis-
pute. The court assumed that Brown’s leave was FMLA-
qualifying, but held there were material facts in dispute
regarding whether Brown had a serious medical condi-
tion and whether she had provided Ford with sufficient
notice of her intent to take FMLA leave. The court also
held, however, that Brown’s August 30 phone call to
Diguilio provided sufficient notice of her intent to
extend her FMLA leave because it occurred within two
working days of the expiration of her initial leave on
August 28, as required by FMLA regulations.
Ford filed a motion for reconsideration, arguing that
the court had committed a manifest error in calculating
the two-day notice period for an extension of Brown’s
leave from August 28, the day Brown’s initial leave
was scheduled to expire. Ford pointed out to the court
that the FMLA regulations in effect at that time pro-
vided that employees must give notice “within no more
than one or two working days of learning of the need for
3
(...continued)
Visteon from the case in an order dated November 1, 2007.
Despite naming Visteon in the case caption of their briefs,
both parties make clear that the only remaining defendants
in this appeal are Ford and Automotive Components
Holdings, LLC (collectively “Ford”).
8 No. 09-1641
leave”—not within two working days of the expiration
of leave.4 29 C.F.R. § 825.303(a) (2007) (emphasis
added). Ford noted that Brown had learned on Au-
gust 21 that she would need to extend her leave
because her appointment with Dr. Shoot was on
August 29, the day she was supposed to return to
work. Even assuming that Brown had a qualifying
medical condition and provided sufficient notice of her
initial need for leave, Ford argued that the FMLA reg-
ulations required her to provide notice within two
working days of August 21—not August 28, as assumed
by the court—of her need for an extension. To the
extent that the court had relied on Brown’s August 30
phone call as a valid notice of an extension of her
leave, Ford maintained that the denial of its motion for
summary judgment was in error. The district court
agreed and granted summary judgment in favor of
Ford dismissing the FMLA claim. Brown appealed.
4
The “within no more than one or two working days”
language of § 825.303(a) was removed in 2009. The section
now reads: “It generally should be practicable for the em-
ployee to provide notice of leave that is unforeseeable within
the time prescribed by the employer’s usual and customary
notice requirements applicable to such leave.” 29 C.F.R.
§ 825.303(a) (2009). We apply the regulations contem-
poraneous with the events in question, which in this case is
the 2007 regulations. (The 2007 regulations came into effect
June 31, 2006.)
No. 09-1641 9
II. Discussion
We review the district court’s grant of summary judg-
ment de novo, construing all facts and inferences in
favor of the nonmoving party. Simpson v. Office of Chief
Judge of Circuit Court, 559 F.3d 706, 711-12 (7th Cir.
2009). The FMLA permits eligible employees to take
12 workweeks of leave within a 12-month period if a
serious health condition renders them unable to
perform their job function. 29 U.S.C. § 2612(a)(1)(D). To
protect these rights, the FMLA provides that an
employer may not “interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right pro-
vided [by the Act].” Id. § 2615(a).
To prevail on an FMLA-interference claim, an em-
ployee must demonstrate that: (1) she was eligible for
FMLA protection; (2) her employer was covered by the
FMLA; (3) she was entitled to FMLA leave; (4) she pro-
vided sufficient notice of her intent to take leave; and
(5) her employer denied her benefits to which she was
entitled. Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir.
2009). For an extension of unforeseeable FMLA leave,
as is the case here, the regulations in effect at the time
state in relevant part:
When the approximate timing of the need for leave
is not foreseeable, an employee should give notice
to the employer of the need for FMLA leave as soon
as practicable under the facts and circumstances of
the particular case. It is expected that an employee
will give notice to the employer within no more than
one or two working days of learning of the need for leave,
10 No. 09-1641
except in extraordinary circumstances where such
notice is not feasible.
29 C.F.R. § 825.303(a) (2007) (emphasis added).
The district court was right to correct itself and grant
summary judgment in favor of Ford based on this reg-
ulation and the undisputed facts about when Brown
learned of her need to extend her leave. The court’s
first ruling improperly calculated the triggering date
for notice to extend FMLA leave as August 28—the day
Brown’s initial leave was to expire. But the regulations
are clear that notice of an unforeseeable need for
leave—including an unforeseeable extension of med-
ical leave—must be given within two working days of
“learning of the need for leave,” id., not two working
days of the expiration of leave. The correct triggering
date here was therefore August 21—the day Brown
learned she would need to extend her leave because
she had a doctor’s appointment on August 29, the day
she was scheduled to return to work. By not contacting
Ford within two working days of August 21, Brown
failed to provide notice of her need to take FMLA leave,
or in this case, to extend her FMLA leave. In fact,
Brown did not contact Ford until August 30, which was
well outside of the two-day window calculated from
August 21. Without the appropriate notice under the
FMLA regulations, Brown failed to make out a prima
facie case of FMLA interference.
Though we could end our analysis here, we note for
completeness that Ford was well within its rights (at
least for FMLA purposes) to terminate Brown’s employ-
No. 09-1641 11
ment according to its standard leave procedures. FMLA
regulations specifically provide that an employer may
require employees “to comply with the employer’s usual
and customary notice and procedural requirements for
requesting leave, absent unusual circumstances.” Id.
§ 825.302(d); see Gilliam v. United Parcel Serv., Inc., 233
F.3d 969, 972 (7th Cir. 2000) (“Nothing in the FMLA or
the implementing regulations prevents an employer
from enforcing a rule requiring employees on FMLA
leave to keep the employer informed about the em-
ployee’s plans.”). In Gilliam we held that an employer
does not violate the FMLA by terminating an employee
who fails to follow the notice provisions of a collective-
bargaining agreement. 233 F.3d at 971. The plaintiff in
that case had requested leave for one day to see his
fiancée and newborn child, and his employer granted
the request. Id. at 970. But he did not contact his
employer again until five days later. Id. He was then
fired for violating the employer’s notice procedures for
leaves of absence, which required anyone who failed to
report to work for three consecutive days to notify the
company before starting time on the third day. Id.; see
also Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 710
(7th Cir. 2002) (no FMLA violation where employee
was terminated for failure to comply with company’s
attendance policy). We observed in Gilliam that the
FMLA does not “authorize employees on leave to keep
their employers in the dark about when they will re-
turn.” Gilliam, 233 F.3d at 971.
Here, just as in Gilliam, Brown was terminated for
being AWOL after failing to comply with the notice
12 No. 09-1641
procedures specified in the CBA. Specifically, Brown
was sent a quit notice on August 31, and she failed to
comply with that notice’s requirements that she either
report to work or explain her absence in person or by
phone within five days.5 Brown did not even pick up
the quit notice until September 12—the day after she
was fired pursuant to the terms of the CBA. When
Brown did not report to work on August 29 as contem-
plated by the only proper leave request form the com-
pany had on file for her, Ford was entitled to proceed
with its normal AWOL procedures, including the five-
day quit notice. Her termination in accordance with
these procedures is not in any way an interference with
her FMLA rights.
Brown raises three new arguments in this court to
overturn the district court’s ruling. Arguments not
raised in the district court are considered waived on
appeal, see Econ. Folding Box Corp. v. Anchor Frozen Foods
Corp., 515 F.3d 718, 720 (7th Cir. 2008), but Brown’s
5
Ford deemed Brown’s alleged phone call on August 30 to be
insufficient because she did not receive a “call-in code num-
ber” per normal leave procedures. Whether Brown’s
August 30 phone call was sufficient to satisfy Ford’s notice
requirements is a question for a labor arbitrator and does
not affect our analysis of the FMLA claim. See Gilliam v.
United Parcel Serv., Inc., 233 F.3d 969, 971 (7th Cir. 2000) (noting
that the interpretation of the details of a company’s internal
leave procedures is a “subject for a labor arbitrator, not a
court”). As we have noted, Brown’s union has withdrawn
a grievance on her behalf.
No. 09-1641 13
new arguments would fail even if they had not been
waived. She contends that she complied with the
FMLA regulations because she provided notice for her
FMLA leave extension “as soon as practicable under
the facts and circumstances of the particular case.” 29
C.F.R. § 825.303(a) (2007). This ignores that the regula-
tions specifically contemplate that in the ordinary case,
notice will be given “within no more than one or two
working days of learning of the need for leave, except
in extraordinary circumstances where such notice
is not feasible.” Id. Brown has not established that it
was impracticable or infeasible to give notice within
two working days of August 21, and whether she sub-
jectively believed it was “more practicable” to wait
until August 30 to notify Ford of her need for an exten-
sion is beside the point.6
Second, Brown argues that Ford’s five-day quit notice
was an explicit waiver of its right to rely on the “one or
two working days” notice provision of the FMLA. For
support Brown points to a provision in the regulations
explaining that “[a]n employer may waive employees’
FMLA notice obligations or the employer’s own internal
rules on leave notice requirements.” Id. § 825.304(a). The
employer’s establishment of internal notice procedures,
6
We also reject the assertion that Brown did not know on
August 21 that she would need additional leave. Her leave
form clearly indicated that her return to work date was
August 29. Brown knew as of August 21 that she could not
get an appointment with Dr. Shoot until August 29, neces-
sitating an extension of at least a day.
14 No. 09-1641
however, does not operate as an automatic waiver of
FMLA notice obligations. To the contrary, the regula-
tions expressly permit employers to require compliance
with their “usual and customary notice and procedural
requirements for requesting leave,” id. § 825.302(d), and
our circuit has recognized an employer’s right to
terminate employees on this basis, see Lewis, 278 F.3d at
710; Gilliam, 233 F.3d at 971. That Ford’s internal pro-
cedures gave Brown a five-day grace period before ter-
mination has no effect on FMLA notice requirements.
We also reject Brown’s related argument that by
failing to terminate her immediately on the day she
went AWOL (August 29), Ford waived its right to rely
on the FMLA provisions governing notice. As we have
already explained, nothing in the FMLA prevented
Ford from using its own internal leave procedures, and
under the CBA Ford could not fire Brown immediately
as of August 29. The CBA’s quit-notice process entitled
her to five days’ notice and an opportunity to either
return to work or provide proper notice of her leave
within that grace period. Only noncompliance at the
end of that period was grounds for termination under
the CBA.
Finally, Brown argues that her August 30 phone call
to Nurse Diguilio was a request for a new FMLA leave,
rather than an extension of her initial FMLA leave.
Under this theory she would have had 15 days to pro-
vide Ford with medical certification of the need for the
leave, see 29 C.F.R. § 825.308(d) (2007), and she believes
that she complied with this requirement by faxing the
No. 09-1641 15
completed leave form to the Clinic on September 12.
Brown does not explain, however, why the August 30
phone call should be construed as a request for new
leave as opposed to an extension of her initial leave.
She did not return to work at the end of her initial
leave period and was in fact suffering from the same
medical condition that kept her out of work in the first
place. In any event, whether we characterize the addi-
tional leave as an “extension” or as a “second” leave,
the result is the same. In each case Brown needed to
comply with the FMLA regulations, which required
her to give notice within two working days of learning
of the need for leave. Labeling it as “second” leave
does not change the fact that the triggering date for
FMLA notice was August 21, and Brown failed to
notify Ford within two working days of that date.
A FFIRMED.
9-8-10