In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4151
D IANE A MES,
Plaintiff-Appellant,
v.
H OME D EPOT U.S.A., INCORPORATED ,
a Delaware corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CV 06060—David H. Coar, Judge.
A RGUED S EPTEMBER 22, 2010—D ECIDED JANUARY 6, 2011
Before M ANION, T INDER, and H AMILTON, Circuit Judges.
M ANION, Circuit Judge. Diane Ames sued Home Depot
after she was terminated for coming to work under the
influence of alcohol and failing a blood alcohol test. Ames
claimed violations of the Family and Medical Leave
Act (“FMLA”), 29 U.S.C. § 2601, and the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101. The
district court granted summary judgment in favor of
2 No. 09-4151
Home Depot on all of her claims, and she appeals.
We affirm.
I.
Ames was first hired by Home Depot in Novem-
ber 2001. During orientation, she received a copy of
Home Depot’s Code of Conduct, which listed “Major
Work Rule Violations” terminable upon a first offense.
One of these violations was having detectable levels of
alcohol as determined by a blood alcohol test.
For almost five years, Ames worked for Home Depot
without incident. On September 15, 2006, Ames spoke
with the store manager, Mike Mahon, about the fact
that she had an alcohol problem and needed assistance
through Home Depot’s Employee Assistance Program
(“EAP”). At this point, Ames’s alcohol problem had not
yet affected her work. In accordance with Home
Depot’s policy, Ames was put on paid administrative
leave and was notified that she could return to work
once she had received a treatment plan, obtained return-to-
work authorization, and passed a return-to-work drug
and alcohol test. On September 23, Ames signed Home
Depot’s Employee Assistance Agreement, which enrolled
her into Home Depot’s assistance program. The agree-
ment stated in part:
4. I will be subject to periodic drug and/or alcohol
testing during the remainder of my employment
at Home Depot whether the Company has rea-
sonable suspicion or not to believe drug or alcohol
No. 09-4151 3
abuse occurred at work or has affected my work
performance . . . .
5. If I refuse to take a required drug and/or alcohol
test or fail a drug and/or alcohol test at any time
during the course of my employment at Home
Depot, I will be immediately terminated.
Ames admits that she read the agreement before
signing and did not object to it.
On October 18, after a one-month leave of absence
with pay, Ames passed a drug and alcohol test and ob-
tained authorization to return to work. Soon thereafter,
Jose Peña became the new store manager. On Novem-
ber 18, at 7:35 a.m., Ames was pulled over by police and
arrested for driving under the influence of alcohol. Al-
though Ames was scheduled to work that day, she
called the store and took a personal leave day without
penalty. After the DUI was reported in the local news-
paper, Ames’s case manager at Home Depot, Clark
Burton, was informed of the arrest. Burton tried unsuc-
cessfully to contact Ames by telephone to notify her
that the DUI arrest put her in noncompliance with the
terms of the Employee Assistance Agreement. On Decem-
ber 6, Burton sent Ames a letter informing her that
she had until December 15 to schedule an appointment
at an alcohol treatment facility for an evaluation, as
required to restore her compliance with the agreement.
Burton then spoke with Ames on December 7 and gave
her until December 18 to schedule her evaluation.
On December 8, Ames asked Peña for help rearranging
her work schedule at Home Depot so that she could
attend her Alcoholics Anonymous (“AA”) meetings.
4 No. 09-4151
Peña asked Ames for documentation from her doctor
and for more information regarding her AA meeting
schedule. A few days later, Ames gave Peña her AA
meeting schedule and a note from her primary-care
physician, which stated: “Diane L. Ames has been under
my care. She has been referred by me to Carol Russel, a
licensed clinical social worker, for counseling, and she is
seeing Dr. John Zhang for psychiatric medication man-
agement.” The note did not say anything more re-
garding Ames’s condition or whether she required med-
ical leave.
Some time later, Ames told Burton that she had sched-
uled an appointment for her EAP-mandated evaluation
in January. Ames stated that her delay in scheduling
this appointment was due to some difficulty with her
insurance plan and with finding a doctor who met the
court’s DUI counseling requirements.
On December 20, Ames had a conversation with Peña
in which she disclosed several personal difficulties,
including her marital problems and divorce, the arrest
of her son on drug charges, perceived unfair treatment
by previous supervisors, concerns regarding whether
Home Depot would pay for the EAP-mandated evalua-
tion, and the inadequacy of her current alcohol-treat-
ment program. At the end of the conversation, Peña
stated that he would inquire into whether Home Depot
would pay for the EAP-mandated evaluation. Ames
conceded in her deposition that she did not specifically
ask for leave from her job during this conversa-
tion with Peña.
No. 09-4151 5
On December 23, Ames reported for her scheduled
work shift. An assistant store manager told Peña that
Ames was acting differently and smelled of alcohol. Peña
observed that Ames was less responsive to conversa-
tion than normal, that she smelled of alcohol, and that
she slurred her words. Peña called Gretchen Gallois,
the human resources manager, who agreed that Ames
should have a blood alcohol test. Ames was driven to
a testing facility and had her blood drawn. A few days
later, the laboratory reported that Ames’s blood had
tested positive for alcohol. Home Depot then decided
to terminate Ames for violating its substance abuse
policy. Peña scheduled a meeting for January 2 to tell
Ames about her termination.
Following the December 23 blood alcohol test, Ames
grew increasingly anxious that she would lose her job if
the test result was positive and began drinking more.
On January 1, 2007, Ames checked herself into the hospi-
tal. The next day, Ames was discharged from the
hospital with instructions to start an outpatient alcohol-
rehabilitation program. Because of her hospital stay,
Ames did not attend her scheduled January 2 meeting
with Peña. On January 10, Home Depot mailed a letter
to Ames, which she received on January 11. The letter
informed Ames that based on her violation of Home
Depot’s substance abuse policy, her employment was
terminated as of December 23, 2006—the day she came
to work under the influence of alcohol.
Ames filed suit in federal court claiming violations of
the FMLA and the ADA. Home Depot moved for sum-
6 No. 09-4151
mary judgment. The district court granted Home
Depot’s motion on all of Ames’s claims. Ames appeals.
II.
We review de novo a district court’s grant of summary
judgment. Winsley v. Cook Cnty., 563 F.3d 598, 602 (7th
Cir. 2009). Summary judgment is appropriate when
there is no genuine issue concerning any material fact
and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c). “We view the record in the
light most favorable to the non-moving party and draw
all reasonable inferences in that party’s favor.” Caskey
v. Colgate-Palmolive Co., 535 F.3d 585, 589 (7th Cir. 2008).
Under the FMLA, an eligible employee is entitled to
up to 12 weeks of unpaid leave each year for a “serious
health condition” that makes the employee unable to
perform the functions of her job. 29 U.S.C. § 2612(a)(1)(D);
Darst v. Interstate Brands Corp., 512 F.3d 903, 908 (7th
Cir. 2008). An employer is prohibited from interfering
with an eligible employee’s exercise or attempt to exer-
cise a right under the Act. 29 U.S.C. § 2615(a)(1). To
prevail on an FMLA interference claim, Ames must
establish: “(1) she was eligible for the FMLA’s protec-
tions; (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.” Caskey, 535 F.3d at 590.
The district court found that Ames had failed to estab-
lish the third element, that she was entitled to leave
No. 09-4151 7
under the FMLA. “An employee is entitled to leave
under the FMLA 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. A “serious
health condition” is defined as “an illness, injury, im-
pairment, or physical or mental condition that in-
volves—(A) inpatient care in a hospital, hospice, or resi-
dential medical care facility; or (B) continuing treatment
by a health care provider.” 29 U.S.C. § 2611(11).
Here, when viewing the facts in the light most
favorable to Ames, she cannot establish that she is
afflicted with a serious health condition. Substance
abuse can qualify as a serious health condition, if treat-
ment for substance abuse involves “inpatient care” or
“continuing treatment by a health care provider.” 29
C.F.R. § 825.114(a), (d) (2006).1 At no time before Decem-
ber 23, the day she was terminated, did Ames go into
inpatient care for her condition; her decision to check
herself into the hospital on January 1 occurred well
after she violated Home Depot’s policy on substance
abuse. In addition, Ames cannot establish that her sub-
stance abuse was a condition requiring “continuing
treatment by a health care provider.” Id. Continuing
treatment must involve a period of incapacity of
more than three consecutive calendar days. 29 C.F.R.
1
The 2006 version of the FMLA regulations is cited here as
this was the version in effect at the time of Ames’s termination.
8 No. 09-4151
§ 825.114(a)(2)(i) (2006).2 Also, the two-sentence letter
from her primary care physician simply said he referred
her to a clinical social worker for counseling, and to a
specialist for psychiatric medication management. There
is nothing in the record from either of those sources
that show that as of December 23, Ames had a condi-
tion requiring this level of continuing treatment. In fact,
Ames testified in her deposition that her alcohol use
neither incapacitated her, nor affected her work perfor-
mance. Based on the record, a reasonable factfinder
could not conclude that Ames was afflicted with a
serious health condition within the meaning of the
2
The FMLA regulations also provide that “continuing treat-
ment by a health care provider” can involve incapacity due
to pregnancy or prenatal care, § 825.114(a)(2)(ii); incapacity
due to a chronic serious health condition requiring periodic
visits to a health care provider over an extended period of
time, § 825.114(a)(2)(iii); incapacity which is permanent or
long-term due to a condition for which treatment may
not be effective, such as the terminal stages of a disease,
§ 825.114(a)(2)(iv); or a period of absence to receive multiple
treatments for restorative surgery or for a condition that
would likely result in a period of incapacity of more than
three consecutive days in the absence of medical intervention,
§ 825.114(a)(2)(v). Ames did not argue to the district court or
to this court (before her reply brief) that her condition fell
under one of these provisions. Moreover, as the district court
correctly noted, Ames cannot satisfy any of these provisions
based on the factual record presented. See Ames v. Home Depot
U.S.A., Inc., No. 08 CV 06060, 2009 WL 4673859, at *6, n.1
(N.D. Ill. Dec. 2, 2009).
No. 09-4151 9
FMLA as of December 23, the day her termination for
failing the blood alcohol test became effective. More-
over, there is no evidence that Ames’s condition
rendered her unable to perform the functions of her job.
See 29 U.S.C. § 2612(a)(1)(D). On the contrary, as just
noted, Ames testified that her job did not suffer because
of her alcoholism. Accordingly, Ames cannot establish
that she was entitled to leave under the FMLA, and
thus, her interference claim fails.3
Next, Ames argues that the district court erred in dis-
missing her FMLA retaliation claim on summary judg-
ment. Ames sought to establish retaliation under the
direct method of proof. To establish an FMLA retaliation
claim under the direct method, Ames “must present
3
Although Ames’s FMLA claim fails on the third element
regarding whether Ames was entitled to FMLA leave, the
parties spend much time arguing about the fourth element,
namely, whether Ames provided sufficient notice of her
intent to take leave from work. On this element, the district
court ruled in Ames’s favor, finding that there was a gen-
uine issue of material fact regarding whether Ames’s conversa-
tions with Peña were sufficient to put Home Depot on notice,
triggering a duty to conduct further investigation into
whether Ames was entitled to FMLA leave. But as the dis-
trict court correctly noted, the fact that she can establish the
notice element is insufficient to defeat summary judgment on
her FMLA interference claim. Accordingly, we need not
address this issue further. See Caskey, 535 F.3d at 591 n.1 (de-
clining to rule on whether the plaintiff provided sufficient
notice after finding that the plaintiff had failed to establish
that she was entitled to FMLA leave).
10 No. 09-4151
evidence of (1) a statutorily protected activity; (2) a mate-
rially adverse action taken by the employer; and (3) a
causal connection between the two.” Caskey, 535 F.3d at
593. Ames’s claim fails as a matter of law because she
cannot satisfy the causal connection element. Ames
presents no evidence of a causal connection between
her alleged requests for FMLA leave and the materially
adverse actions of her employer, whether the claimed
adverse action was the blood alcohol test or the termina-
tion: first, the requirement to take a blood alcohol test
was in accordance with the terms of Home Depot’s Em-
ployee Assistance Agreement to which Ames agreed;
and second, the termination occurred only after Home
Depot learned that the test result was positive, which
was a terminable violation under the Assistance Agree-
ment and Home Depot’s Code of Conduct. Thus, Ames’s
FMLA retaliation claim was properly dismissed on sum-
mary judgment.
Ames also appeals the district court’s conclusion that
she had no valid claim under the ADA. Taking the
record in the light most favorable to Ames, her ADA
claims cannot survive summary judgment. For either a
discrimination claim or a failure-to-accommodate claim,
Ames must show that she has a disability under the
ADA. Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 601 (7th
Cir. 2009); Mobley v. Allstate Ins. Co., 531 F.3d 539, 545
(7th Cir. 2008). Alcoholism may qualify as a disability
if it “substantially limits one or more major life activi-
ties.” 42 U.S.C. § 12102(1). A substantial limitation is a
limitation that renders an individual unable to perform
a major life activity or that significantly restricts an indi-
No. 09-4151 11
vidual in performing a major life activity. 29 C.F.R.
§ 1630.2(j) (2010). Major life activities can include caring
for oneself, sleeping, walking, and working. 42 U.S.C.
§ 12102(2). Ames cannot show that her alcoholism is an
ADA disability because there is no evidence in the
record that it substantially limited her major life activi-
ties. Ames presented no evidence that her alcohol prob-
lem substantially limited her activities at home.
And again we refer to her testimony where she insisted
that her alcohol problem did not affect her work perfor-
mance. Additionally, her discrimination and failure-to-
accommodate claims fail because the record establishes
that Home Depot fired Ames because she came to work
under the influence of alcohol. This was a failure to
meet Home Depot’s legitimate expectations for its em-
ployees, as Home Depot need not accommodate an alco-
holic by overlooking such violations of workplace
rules. See 42 U.S.C. § 12114(c)(4) (providing that an em-
ployer “may hold an employee . . . who is an alcoholic
to the same qualification standards for employment or
job performance and behavior that such [employer]
holds other employees, even if any unsatisfactory per-
formance or behavior is related to the . . . alcoholism of
such employee”). And there is no evidence that Home
Depot failed to accommodate Ames’s requests to
schedule her work around AA meetings; in fact, the
evidence shows that Home Depot gave Ames time off
with pay and assistance through its Employee Assistance
Program.
12 No. 09-4151
III.
The district court properly granted Home Depot sum-
mary judgment on Ames’s claims under the FMLA and
the ADA. Ames cannot establish that she had a condi-
tion entitling her to leave under the FMLA, that she
suffered retaliation, or that she had a disability granting
her rights under the ADA. We A FFIRM .
1-6-11