In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1775
R OBERT R IGHI,
Plaintiff-Appellant,
v.
SMC C ORPORATION OF A MERICA,
a corporation, and L OUIS K ING,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:07-cv-1064—Joe Billy McDade, Judge.
A RGUED S EPTEMBER 23, 2009—D ECIDED F EBRUARY 14, 2011
Before F LAUM, W OOD , and SYKES, Circuit Judges.
S YKES, Circuit Judge. Robert Righi was employed as
a sales representative for SMC Corporation in the com-
pany’s Aurora, Illinois office. While at a mandatory
training seminar in Indianapolis, he learned that his
elderly mother was experiencing a medical emergency.
He left the seminar and returned to Illinois to assess
his mother’s situation. The next day, he e-mailed his
2 No. 09-1775
supervisor to explain that he needed “the next couple
days off” to make arrangements for his mother’s care;
he said in his e-mail that he had vacation time available
or “could apply for the family care act, which I do not
want to do at this time.” Righi’s supervisor then tried
for more than a week to reach him by telephone to
clarify his request for leave. Righi did not return these
calls or otherwise contact his employer. When he finally
returned to work nine days after leaving the training
session, he was fired for violating SMC’s leave policy.
Righi sued SMC and his supervisor alleging violations
of the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§§ 2601 et seq. The district court entered summary judg-
ment for the defendants on two separate grounds:
(1) Righi was not entitled to FMLA protection because
his e-mail specifically disavowed any intent to use
FMLA leave; and (2) even assuming Righi’s e-mail
invoked the FMLA, he failed to notify SMC of his antici-
pated return-to-work date—as required by company
policy and applicable FMLA regulations—and he
ignored his supervisor’s repeated phone calls seeking
more information about his leave request.
We affirm, though on the latter ground only. Righi’s
e-mail, read in his favor, allows an inference that he
was leaving at least some room to change his mind and
use FMLA leave rather than vacation time to cover his
absence. But the FMLA’s regulations place the burden
on the employee to notify his employer of the anticipated
duration of unforeseeable leave “as soon as practicable,”
which under the regulations then in effect meant “no
No. 09-1775 3
more than one or two working days of learning of the
need for leave.” 29 C.F.R. §§ 825.302(b) and (c), 825.303(a)
(2007). Moreover, an employer is entitled to enforce
compliance with its “usual and customary notice and
procedural requirements” regarding FMLA leave. Id.
§ 825.302(d) (2007). Because Righi failed to comply with
the applicable regulatory and workplace requirements
for family leave, his termination did not violate the FMLA.
I. Background
Robert Righi was employed as a sales representative
for SMC from 2004 until July 20, 2006, when he was fired
for violating the company’s leave policy.1 Throughout
his employment, Righi was assigned to SMC’s Aurora
office but was permitted to work primarily out of his
home in Henry, Illinois, where he lived with his elderly
mother, Ann Righi, and his roommate Chuck Purtscher.
Ann Righi was an insulin-dependent diabetic suffering
from a heart condition and was often in need of medical
attention.
Although Righi usually worked from home, he was
expected to work 40 to 50 hours per week and to check in
with his sales manager Louis King on a daily basis.2 Righi
and King typically communicated via Righi’s company-
issued cell phone or by e-mail. Occasionally, when King
1
SMC manufactures pneumatic automation products and
has offices throughout the United States.
2
Righi also attended biweekly meetings at SMC’s Aurora office.
4 No. 09-1775
could not reach Righi on his cell phone, King would
contact Righi on his home telephone or on the cell phone
belonging to Purtscher.
On several prior occasions, Righi needed vacation
time in order to care for his mother. He often e-mailed
King to request this leave. SMC policy required em-
ployees to obtain prior approval from a supervisor
before taking leave. SMC’s attendance policy also stated
that a “[f]ailure to report for work for two (2) consecutive
days without notifying your supervisor” is grounds for
termination.3 On these prior occasions, Righi complied
with company policy whenever he needed leave.
From July 9, 2006, to July 21, 2006, Righi was scheduled
to attend a mandatory two-week training session in
Indianapolis. On Tuesday morning, July 11, while at the
seminar, Righi received an urgent phone call from his
sister, who informed him that their mother had gone
into a diabetic coma. Righi decided to return home. He
told a co-worker he was leaving to attend to a family
emergency and asked the co-worker to pass this infor-
mation to others at the training session. He then
embarked on the four-hour drive to his home in Illinois.
By the time Righi arrived, his mother’s condition had
stabilized.
Righi did not contact King, his supervisor, at any time
on July 11 to inform him about the situation. Meanwhile,
3
This policy was contained within a memorandum entitled
“Corrective Action Process.” On January 8, 2006, Righi signed
a separate memo acknowledging his receipt and understanding
of the Corrective Action Process.
No. 09-1775 5
King—apparently unaware that Righi had left the
training session—called Righi’s company-issued cell
phone three times on July 11, 2006, to discuss business
matters. But Righi had turned his phone off and therefore
did not answer these calls. King called again the next
morning, July 12, at 6:45 a.m. and once again received
no response.
At approximately 9 a.m. on July 12, Righi sent an e-
mail to King. He apologized for not contacting King
earlier and explained that he left the training session to
attend to his mother, who took an incorrect dosage of
insulin and slipped into a coma. Righi then stated:
I need the next couple days off to make arrangements
in an intermediate care facility for my Mother. . . . I do
have the vacation time, or I could apply for the family
care act, which I do not want to do at this time.
I hope you can understand my situation and approve
this emergency time off. I will be very busy the next
couple of days . . . so I might be slow getting back to
you.4
(Emphasis added.) Righi did not return to work until
July 20, 2006, nine days after leaving the training session.
4
Despite the contents of this e-mail, however, it is undisputed
that Righi’s mother did not visit an emergency room, a physi-
cian, or a health-care provider at any time during the two-
week period beginning July 11, 2006. Righi claims that during
this time he was attempting to make arrangements to move
his mother to an intermediate care facility.
6 No. 09-1775
This e-mail was Righi’s only contact with King until
July 19, 2006.
Righi also sent an e-mail to Kenta Joki, a co-worker, on
the morning of July 12. Joki was in charge of scheduling
the training classes in Indianapolis. Righi told Joki that
his mom was in poor health and that he would have
to reschedule the class. This e-mail was Righi’s last com-
munication with anyone at SMC until July 19, 2006.
When King received Righi’s July 12 e-mail, he re-
peatedly attempted to contact Righi by phone to
inquire further about his leave. King called Righi’s com-
pany cell phone four times on Wednesday, July 12; twice
on Thursday, July 13; four times on Friday, July 14; twice
on Monday, July 17; and once on Tuesday, July 18. Righi
apparently kept his cell phone turned off during this
period, and he did not answer or return any of King’s
phone calls or messages. King also attempted to reach
Righi on his home phone. On the evening of July 17, King
called Righi’s home phone and spoke to Purtscher, telling
him that Righi needed to “wrap this up.” 5 Purtscher
promptly relayed this message to Righi, but still Righi did
5
SMC also contends that on July 17 King explicitly instructed
Purtscher to have Righi call King. Righi denies this. Although
the parties dispute this fact, it is not material to our analysis.
As we explain, infra, to qualify for FMLA protection, it was
Righi’s responsibility to contact King and keep him apprised
about the duration of his leave. See 29 C.F.R. § 825.302(c). Righi
failed to do so. This regulatory requirement was never
excused by SMC, and it therefore remained regardless of
whether King expressly told Purtscher to have Righi call.
No. 09-1775 7
not call King back. Two days later, on July 19, King called
Righi’s cell phone again and Purtscher answered. King
asked Purtscher to tell Righi that he needed to contact
King as soon as possible. Later that day, after nine days
of silence, Righi finally called King. King told Righi to
come to the office for a meeting the next day. At that
meeting Righi was fired for violating SMC’s leave policy.
Righi sued SMC and King alleging FMLA violations.
Righi brought two claims—one for interference with his
right to FMLA leave and the other for discrimination or
retaliation for attempting to exercise FMLA rights. The
district court granted the defendants’ motion for sum-
mary judgment and dismissed both of Righi’s claims.
On appeal Righi challenges only the dismissal of his
FMLA interference claim.
II. Discussion
We review a district court’s grant of summary judgment
de novo, construing all facts and drawing reasonable
inferences in the light most favorable to the nonmoving
party. Ridings v. Riverside Med. Ctr., 537 F.3d 755, 760
(7th Cir. 2008). Summary judgment is appropriate when
there is no material dispute of fact and the moving party
is entitled to judgment as a matter of law. Id. Here, the
question is whether Righi could prevail on a claim
for FMLA interference based on the facts we have re-
counted.
The FMLA permits an eligible employee to take up to
12 weeks of leave per year in order to “care for . . . [a]
8 No. 09-1775
parent [with] a serious health condition.” 29 U.S.C.
§ 2612(a)(1)(C). The Act further provides that employers
may not “interfere with, restrain, or deny the exercise of
or the attempt to exercise, any right provided under
[the Act].” Id. § 2615(a)(1). To prevail on a claim for
FMLA interference, the employee must prove that: (1) he
was eligible for FMLA protections; (2) his employer
was covered by the FMLA; (3) he was entitled to leave
under the FMLA; (4) he provided sufficient notice of his
intent to take FMLA leave; and (5) his employer denied
him FMLA benefits to which he was entitled. Brown v.
Auto. Components Holdings, LLC, 622 F.3d 685, 689 (7th
Cir. 2010); Ridings, 537 F.3d at 761.
The first three elements of the claim are not seriously
in dispute; this appeal turns on whether Righi provided
SMC with sufficient notice under the FMLA and its
regulations. 6 When the employee fails to give his
employer proper notice, the employer is under no duty
to provide FMLA leave. See Stevenson v. Hyre Elec. Co.,
505 F.3d 720, 724 (7th Cir. 2007); Aubuchon v. Knauf Fiber-
glass, GMBH, 359 F.3d 950, 951 (7th Cir. 2004). Stated
differently, an employee’s failure to comply with the
6
SMC maintains that Righi was not entitled to FMLA leave
because his mother did not suffer from a “serious health
condition” as that phrase is defined by the Act and because
Righi failed to complete the required medical certification
forms. See 29 U.S.C. §§ 2611(11) (defining “serious health
condition”), 2613 (discussing certification). Because Righi’s
claim fails for lack of sufficient notice regarding the duration
of his leave, we need not address these arguments.
No. 09-1775 9
notice requirements of the FMLA and its regulations
“forecloses . . . an FMLA interference claim because [the
employee] did not fulfill her obligations in order to be
protected.” Ridings, 537 F.3d at 771.
The Department of Labor has issued detailed regula-
tions governing the notice requirement. See 29 C.F.R.
§§ 825.300 et seq. (2007). The regulations were most
recently amended in 2009; we apply the version in effect
as of July 2006—when these events occurred—to inform
our analysis. See Brown, 622 F.3d at 690 (applying con-
temporaneous regulations); Haefling v. United Parcel Serv.,
Inc., 169 F.3d 494, 498 (7th Cir. 1999) (same).
The district court held as an initial matter that Righi did
not provide sufficient notice to properly invoke the
protections of the FMLA. Generally speaking, it does
not take much for an employee to invoke his FMLA
rights; he must simply provide enough information “to
place the employer on notice of a probable basis for
FMLA leave.” Aubuchon, 359 F.3d at 953; see also
Stevenson, 505 F.3d at 724-25. The applicable regulations
make clear that an employee “need not expressly assert
rights under the FMLA or even mention the FMLA” in
order to invoke his rights; he need only note that leave
is requested for some reason covered by the FMLA.
29 C.F.R. § 825.303(b); see also Aubuchon, 359 F.3d at 953
(the employee must provide enough information to
establish “probable cause” to believe the employee
may qualify for FMLA leave).
Ordinarily, an employee’s statement to his employer
indicating that he needs leave to care for a seriously ill
10 No. 09-1775
parent would be sufficient to invoke the protections of
the FMLA. Cf. Ridings, 537 F.3d at 762-63, 766 (FMLA
rights invoked where employer was aware that em-
ployee had a serious health condition even though the
employee did not explicitly request FMLA leave). That
said, our caselaw also suggests that an employee may
waive his FMLA rights if he clearly expresses to his
employer that he does not wish to use the protections
of the FMLA. See id. (indicating that an employee may
decline to invoke the protections of the FMLA).
Based on this principle, the district court held that
Righi unequivocally declined to invoke FMLA leave and
therefore could not prevail on his FMLA interference
claim. This holding flowed from the district court’s inter-
pretation of the e-mail Righi sent to King on July 12. In
that e-mail Righi explained his mother’s medical emer-
gency and said he needed to take “the next couple days
off” to arrange for an intermediate care facility for his
mother. He then stated: “I do have the vacation time, or
I could apply for the family care act, which I do not
want to do at this time.” The district court held that this
last statement manifested an explicit waiver of FMLA
rights.
We disagree. Read in the light most favorable to Righi,
the e-mail leaves open the possibility that Righi might
want to use FMLA leave after all; this makes it equivocal
or at least ambiguous, and therefore sufficient to alert
SMC to the potential that Righi would need FMLA
leave. The e-mail specifically mentioned his mother’s
diabetic coma, suggesting that Righi may qualify for
No. 09-1775 11
FMLA leave. See Stevenson, 505 F.3d at 725 (sufficient
notice requires employee to alert employer that a
relative’s health condition is serious). Righi also said he
was aware that he could apply for the “family care act,” a
clear reference to the FMLA. Although he mentioned
he had vacation time available and did not want to
apply for family leave “at this time,” the qualifying
phrase “at this time” could be read to imply that Righi
might change his mind and opt to exercise his FMLA
rights. Because Righi’s e-mail contained this qualifier, it
was not an unequivocal waiver of FMLA leave.
Once an employee invokes his FMLA rights by alerting
his employer to his need for potentially qualifying leave,
the regulations shift the burden to the employer to take
certain affirmative steps to process the leave request.
29 C.F.R. § 825.301. In particular, after notice is given,
the employer has a duty to provide a written ex-
planation of the employee’s rights and responsibilities
under the FMLA, id., and a duty to make further
inquiry if additional information is needed before
the employer can process the leave request, see id.
§§ 825.302(c) (“[T]he employer should inquire further of
the employee if it is necessary to have more information
about whether FMLA leave is being sought . . . . ”),
825.303(b) (’The employer will be expected to obtain
any additional required information through informal
means.”). Righi’s e-mail—while too ambiguous to trigger
SMC’s affirmative duty to provide written FMLA mate-
rials and accompanying medical certification forms,
see id. § 825.305—was sufficient to give rise to the em-
12 No. 09-1775
ployer’s duty to make further inquiry.7 As we will
explain, in this situation, the regulations contemplate
that SMC would use informal means to gather more
information from Righi regarding his intent to take
FMLA leave.
There is no dispute that SMC attempted to fulfill its
regulatory obligation to inquire further. As soon as King
received Righi’s e-mail, King called Righi many times in
an effort to learn more about the situation. Righi had
apparently turned his cell phone off and did not
respond to the 15 phone calls that King placed from
July 12 to July 18. Righi did not call King until July 19,
and this occurred only after King spoke to Righi’s room-
mate and told him that Righi needed to call him as soon
as possible.
Righi’s failure to respond to these calls or otherwise
contact his employer dooms his FMLA claim. The FMLA
does not authorize employees to “keep their employers
in the dark about when they will return” from leave.
Gilliam v. United Parcel Serv., Inc., 233 F.3d 969, 971 (7th
Cir. 2000). Indeed, employers are “entitled to the sort of
notice that will inform them not only that the FMLA
7
In the alternative, Righi argues that his e-mail to King should
be read in light of the e-mail he sent to SMC’s scheduling
coordinator Joki. In that e-mail Righi explained he
would have to reschedule his training because he needed to
care for his sick mother. Because we have concluded that
Righi’s e-mail to King did not unequivocally waive his FMLA
rights, we need not consider this argument.
No. 09-1775 13
may apply but also when a given employee will return to
work.” Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008
(7th Cir. 2001) (emphasis added). This principle derives
from the applicable regulatory scheme, which imposes
certain duties on employees requesting FMLA leave. In
all cases, the employee must give his employer notice
about the “anticipated timing and duration of the
leave.” 29 C.F.R. § 825.302(c). This requirement also
applies where, as here, the need for leave is unfore-
seeable. See id. and 29 C.F.R. § 825.303(a) (specifying
notice requirements where need for leave is unforesee-
able); Collins, 272 F.3d at 1008 (explaining that even
in situations where FMLA leave is unforeseeable, the
employee’s notice must conform with the substantive
requirements of 29 C.F.R. § 825.302(c)). In cases (like this
one) involving unforeseeable leave, the employee must
provide notice to his employer about the anticipated
duration of his leave “as soon as practicable.” 29 C.F.R.
§ 825.303(a). Under the regulations in effect at the time
of the events in this case, “as soon as practicable” meant
“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.
An employee who fails to comply with this notice re-
quirement is not entitled to FMLA protection. See
Brown, 622 F.3d at 689-90.
Righi’s July 12 e-mail told King that he needed “the
next couple days off” to attend to his mother, but then
Righi fell silent for a full week, ignoring King’s many
follow-up phone calls. Righi never gave his employer
notice of the timing and duration of his requested leave
14 No. 09-1775
beyond the ambiguous “next couple days” reference,
which he exceeded in any event. Righi was absent with-
out permission from July 11 to July 20, a nine-day period
that included six work days; his vague reference to
needing “the next couple days” cannot be considered
adequate notice of a request for FMLA leave of this
more substantial duration. This is especially so in light
of King’s persistent efforts to reach Righi to clarify
his request, which were essentially ignored. It is true
that the regulations contemplate relaxing the notice
requirement in “extraordinary circumstances,” 29 C.F.R.
§ 825.303(a), but Righi has not identified anything about
his circumstances that qualifies as “extraordinary.”
Of course when the need for leave is unforeseeable, the
employee will sometimes not know exactly how much
leave he will need. But the employee must at least com-
municate this fact to the employer, together with an
estimate of the likely duration of the requested leave.
Here, Righi made no effort whatsoever to keep SMC
apprised of his fluid situation and was absent and out of
touch with his supervisor for more than a week. It
is undisputed that by the time Righi arrived home on
July 11, his mother’s condition had stabilized; once the
emergency abated, it was entirely practicable for Righi to
call King to provide the required notice of when he ex-
pected to return.
Righi argues that he innocently believed that his
absence was excused. He notes that he often kept his
cell phone turned off, and when he could not be
reached via cell phone, King would sometimes call
No. 09-1775 15
Righi’s home phone. Righi contends that because King
had a “usual and customary practice” of calling his
home phone on these prior occasions, King’s duty to
make further inquiry included a duty to call Righi’s
home phone. Righi claims that because King did not
call his home phone until July 17, he was entitled to
assume his leave was excused.
This argument is easily dismissed. First, it is undis-
puted that even after King called Righi’s home phone
for the first time on July 17, Righi still did not return
the call. He did not return his supervisor’s call until two
days later on July 19, and this was only after King
called again and left another message with Purtscher.
Regardless, the argument has no support in the ap-
plicable regulations. Instead, when an employee is
unclear about whether he wants FMLA leave or not, the
regulations contemplate that the employer will make
further inquiry and will “obtain any additional required
information through informal means.” Id. § 825.303(b).
We think this means only that the employer must make
a reasonable effort to clarify the employee’s leave re-
quest. Here, King’s concerted effort for more than a
week to reach Righi by cell phone certainly qualifies as
reasonable.
Finally, it bears repeating that the regulations explicitly
provide that employers may require their employees to
comply with their “usual and customary notice and
procedural requirements” when requesting FMLA leave.
Id. § 825.302(d). SMC had a written policy requiring
its employees to obtain approval for leave from their
16 No. 09-1775
supervisors. SMC’s attendance policy also stated that
an unapproved absence of two consecutive days or
more was grounds for termination. We have previously
held that an employee’s failure to comply with his em-
ployer’s internal leave policies and procedures is a suffi-
cient ground for termination and forecloses an FMLA
claim. Brown, 622 F.3d at 689-90; Ridings, 537 F.3d at 769
n.3, 771; Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706,
710 (7th Cir. 2002); Gilliam, 233 F.3d at 971. Righi never
obtained King’s approval for his leave, and his unap-
proved absence persisted for far longer than the two
days contemplated by the regulations. Of course, an
employer cannot deny FMLA leave when an employee
has a legal entitlement to it. But Righi’s failure to follow
the applicable regulatory and workplace requirements
for notifying his employer of the expected duration of
his leave forecloses his FMLA interference claim.
A FFIRMED.
2-14-11