Donna Nicholson v. Pulte Homes Corporation, et al

Filing

Filed opinion of the court by Judge Sykes. AFFIRMED. Richard A. Posner, Circuit Judge; Joel M. Flaum, Circuit Judge and Diane S. Sykes, Circuit Judge. [6418916-3] [6418916] [11-2238]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 11-2238
D ONNA N ICHOLSON,
Plaintiff-Appellant,
v.
P ULTE H OMES C ORPORATION and
C HRIS N AATZ, individually,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10-cv-833—John W. Darrah, Judge.

A RGUED D ECEMBER 6, 2011—D ECIDED A UGUST 9, 2012

Before P OSNER, F LAUM, and S YKES, Circuit Judges.
S YKES, Circuit Judge. Donna Nicholson was a sales
associate for Pulte Homes Corporation, a national
homebuilder. When she failed to make her sales
quotas for several months in a row, Pulte put her on a
performance-improvement plan and later fired her
when her sales did not improve. Nicholson claimed
that her termination was related to her need to care for

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her ailing parents. She sued Pulte under the Family and
Medical Leave Act (“FMLA” or “the Act”), 29 U.S.C.
§§ 2601 et seq., alleging that the company interfered
with her statutory rights and retaliated against her
in violation of the Act. The district court granted summary judgment for Pulte on both claims.
We affirm. Nicholson did not put Pulte on adequate
notice that she needed FMLA-qualifying leave to care
for her parents. At most, she made a few casual comments to her supervisors about her parents’ ill
health. Moreover, at the time the decision to terminate
her employment was made, she had asked for only a
single day off to attend a doctor’s appointment with
her father, which her supervisor allowed. Accordingly,
Nicholson has not presented sufficient evidence that
Pulte interfered with her rights under the FMLA. Her
retaliation claim fails for the same reasons and also
because there is no evidence that Pulte imposed the
performance-improvement plan or terminated her employment as punishment for taking leave.

I. Background
Nicholson began work as a sales associate for Pulte
Homes in 1999. At all relevant times, her supervisors
were Maria Wilhelm and Chris Naatz. Pulte explained
its FMLA-leave procedures in its employee handbook,
which included the following provision regarding how
to give notice of the need for leave:
You must request leave from Human Resources,
not your manager or anyone else. Employees must

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provide 30 days[’] advance notice of the need to take
FMLA leave when the need is foreseeable. Employees must provide sufficient information for the
Company to determine if the leave may qualify for
FMLA protection and the anticipated timing and
duration of the leave . . . [.] Employees will be required to provide a certification . . . supporting the
need for leave.
Nicholson understood that the handbook applied to her.
In 2005 Nicholson’s father was diagnosed with leukemia. His condition progressively deteriorated thereafter, but he lived independently and generally took
care of himself. Occasionally, Nicholson attended a doctor’s appointment with her father (five times or so
in four years) to help him remember information. Nicholson’s mother lived with her but did not require inhome care. Nicholson administered her mother’s medication, reminded her to eat (she could fix simple meals
on her own), paid her bills, and attended some doctor’s
appointments with her mother on her days off (though
her mother was able to drive and run basic errands on
her own). At some point—Nicholson could not remember exactly when—her mother was diagnosed with
chronic kidney disease.
In 2007 Pulte placed Nicholson on a performanceimprovement plan for failing to meet her monthly sales
goals. She continued to struggle in early 2008, receiving
an evaluation from Wilhelm that focused on her need
to achieve greater consistency in meeting her monthly
goals. Wilhelm also noted Nicholson’s need to improve
her poor attitude, which was causing her sales to suffer.

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In December 2008 Nicholson first spoke of her father’s
condition to Wilhelm. Specifically, Nicholson mentioned that she might need time off in the first quarter
of 2009 due to her father’s possible need for chemotherapy. Wilhelm offered to do anything she could to
help. Nicholson testified in her deposition that the
matter was “left open-ended” because of the uncertainties surrounding her father’s need for treatment.
On February 15, 2009, Nicholson received another
performance evaluation from Wilhelm, this time noting
that when Nicholson maintained a positive attitude
and sustained effort, she was capable of being a
successful salesperson, and emphasizing the need for
consistency in her performance. In a follow-up email,
Wilhelm reminded Nicholson of the importance of
making her sales goals every month, saying that
“[c]onsistency will be extremely important as it was in
2008.” Also in February, Wilhelm became concerned that
Nicholson was not properly managing buyers’ expectations. In March Pulte received two customer complaints
about Nicholson. One stated that “Donna . . . is rude,
condescending and unprofessional,” and “I will not be
buying a Pulte home from you because of Donna.” Another
customer reported that she hung up on Nicholson out
of frustration with her unwillingness to wrap up a conversation. Then, during an important field-operations
meeting, Nicholson was unable to answer questions
pertaining to her sales area, leading Naatz to question
her knowledge, preparedness, and attitude. Wilhelm
raised these concerns with Nicholson and asked her to
acknowledge them by return email. Nicholson did so.

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That same month Nicholson had a “casual conversation” with Naatz and other Pulte employees about the
challenges of dealing with aging parents and alluded to
her father’s illness. Naatz recalled only that Nicholson
mentioned wanting to downsize her home because too
many people were living with her. Nicholson never
said anything else to Naatz about her parents’ health.
In March or April, Nicholson’s mother experienced a
significant weight loss. Shortly thereafter, Nicholson
mentioned her mother’s condition to Wilhelm for the
first time. Specifically, Nicholson told Wilhelm that she
was driving her mother to medical appointments on
her days off to minimize interference with her work
schedule. Wilhelm again offered to do anything she
could to help.
On April 25 Nicholson asked Wilhelm for permission to
take April 27 off to attend a doctor’s appointment with
her father to help him understand and retain his
doctor’s advice. Wilhelm gave Nicholson the day off
but rescheduled a mandatory meeting that had been
planned for that day to a time before normal business
hours to avoid a conflict with the medical appointment.
After the appointment, Nicholson told Wilhelm that
her father’s diagnosis had worsened to stage III cancer.
Nicholson did not make a single sale during the
month of April. In response, and also based on concerns
about the customer complaints and Nicholson’s lack of
knowledge during the field-operations meeting, Naatz
asked Wilhelm to prepare a performance-improvement
plan for Nicholson. On May 5 Naatz and Wilhelm gave

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Nicholson a written warning and performance-improvement plan that identified her poor attitude and failure
to make her sales goals as areas of deficiency. The
plan established a modest goal of two net sales in both
May and June. Although Pulte’s performance-improvement plans were normally 30 days in duration, the company gave Nicholson 60 days based on her longevity
with the company. But she was also told that her performance would be assessed beginning May 31 and that
her employment might be terminated before the plan
expired if she did not make sufficient progress. When
she received the performance-improvement plan, Nicholson told Wilhelm that she could not work outside
her normal hours because of her responsibilities to her
parents. But she did not say she anticipated a need for
time off. At Wilhelm’s request Nicholson sent another
email to Naatz confirming that she understood the company’s concerns about her lagging performance.
Nicholson made no sales at all during May and June.
On June 22 Naatz, Wilhelm, and a company executive
decided to terminate Nicholson’s employment. Naatz
and Wilhelm testified that the termination decision was
made before Nicholson’s performance-improvement
plan expired because she had not shown any improvement in her attitude or effort and did not make any
sales. They did not notify Nicholson of their decision
that day, however. Instead, they delayed meeting
with Nicholson for two days—until June 24, the end
of her workweek—so they could arrange coverage at
Nicholson’s sales office.

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On the morning of June 23, Nicholson contacted
Wilhelm to tell her that she would not be in that
day because she had to take her mother to the emergency room. Wilhelm excused Nicholson from work
and notified Naatz and an administrative assistant that
Nicholson was taking a personal day off. The next afternoon Nicholson received a call from the hospital
about her mother; at about 3 p.m., she asked Wilhelm
for permission to leave work to attend to her mother in
the hospital. Wilhelm agreed. At the end of that
day—June 24—Wilhelm went to Nicholson’s office to
notify her of the termination decision. She did not give
Nicholson a specific reason for the termination. But
Nicholson testified that at the time she assumed that
she was fired for failing to meet the terms of her
performance-improvement plan.
Sometime later, Nicholson’s former sales partner Juan
Chaidez asked Wilhelm about Nicholson’s termination.
Wilhelm told him she could not discuss the reasons for
the termination. At some point during this conversation, Wilhelm mentioned that Nicholson had “some
personal family matters to attend to.” She did not say,
however, that Nicholson’s parents’ medical conditions
played any role in the termination decision.
Nicholson sued Pulte and Naatz alleging that they
interfered with her FMLA rights and retaliated against
her in violation of the Act. The district court granted
Pulte’s motion for summary judgment on both claims. The
court held that Nicholson’s interference claim failed
because she provided insufficient notice of her intent

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to take FMLA leave. The court rejected the retaliation
claim for essentially the same reason, concluding that
because Nicholson never engaged in FMLA-protected
activity, she could not prevail on a claim of retaliation.

II. Discussion
Nicholson’s appeal rests primarily on her contention
that the district court impermissibly construed the
factual record in Pulte’s favor instead of hers. We review
the court’s summary-judgment ruling de novo, construing all facts and reasonable inferences in the light
most favorable to Nicholson, the nonmoving party. Righi
v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011). Summary
judgment is appropriate when the material facts are
undisputed and the moving party is entitled to judgment as a matter of law. Id.
The FMLA permits an eligible employee to take up to
12 weeks of leave per year “to care for . . . [a] parent
[with] a serious health condition.” 29 U.S.C. § 2612(a)(1)(C).
An employer may not “interfere with, restrain, or deny
the exercise of or the attempt to exercise” any FMLA
rights. Id. § 2615(a)(1). Nor may an employer retaliate
against an employee for exercising FMLA rights. See id.
§ 2615(a)(2) (prohibiting “any employer to discharge
or in any other manner discriminate against any individual for opposing any practice made unlawful by
this subchapter”); id. § 2615(b) (making it unlawful for
any employer to discharge or discriminate against
anyone for exercising rights under the FMLA); see also

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Kauffman v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir.
2005) (“We have construed [§ 2615(a)(2) and (b)] to
create a cause of action for retaliation.”). An interference
claim requires proof that the employer denied the employee FMLA rights to which she was entitled; a retaliation claim requires proof of discriminatory or retaliatory
intent. Goelzer v. Sheboygan County, Wis., 604 F.3d 987,
995 (7th Cir. 2010); Kauffman, 426 F.3d at 884-85.

A. FMLA Interference
To prevail on an FMLA interference claim, an employee
must show that: (1) she was eligible for FMLA protection;
(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 FMLA leave; and (5) her
employer denied her the right to FMLA benefits. Burnett
v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006). Here,
the focus is on the fourth and fifth elements: whether
Nicholson provided sufficient notice to Naatz or
Wilhelm of her intent to take FMLA-qualifying leave
and whether Pulte denied her FMLA benefits to which
she was entitled.1

1

Pulte also disputes the third element and argues that Nicholson did not establish her entitlement to FMLA leave in the
first place. It is undisputed that Nicholson’s father had stage III
cancer and her mother was ultimately diagnosed with kidney
disease. FMLA regulations explicitly list both of these
diagnoses as “serious health conditions.” See 29 C.F.R.

(continued...)

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Pulte first argues that the interference claim fails
because Nicholson did not follow the company’s internal
notice procedures. It is true that FMLA regulations generally permit an employer to enforce notice and other
procedural requirements for invoking FMLA leave: “An
employer may require an employee to comply with
the employer’s usual and customary notice and
procedural requirements for requesting leave, absent
unusual circumstances.” 29 C.F.R. § 825.302(d). Accordingly, we have held that an employee’s failure to
comply with an internal leave policy is a sufficient
ground for termination and forecloses an FMLA claim.
See Righi, 632 F.3d at 411-12 (citing cases). Pulte requires
its employees to notify the human-resources department—not just a supervisor—of their need for FMLA

(...continued)
§ 825.115(e)(2). Pulte claims that the regulations further
require that the employee certify that the family member is
“unable to care for his or her own basic medical, hygienic, or
nutritional needs or safety, or [be] unable to transport himself
or herself to the doctor.” Id. § 825.124(a). The regulation in
question is illustrative only; it describes the kinds of situations in which employees might be needed to care for family
members and may use FMLA leave. Here, Nicholson went
with her father to a medical appointment to help him retain
information and instructions from his doctor. On her days
off, she also attended doctor’s appointments with her mother,
who was less independent and needed more assistance.
A reasonable jury could find that Nicholson qualified for
FMLA leave to care for her parents.

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leave. Nicholson did not do so and therefore failed to
comply with Pulte’s internal leave policy.
But unlike in Righi, Pulte was not terminated for excessive absenteeism or failure to follow FMLA leave procedures. She was terminated for performance problems.
On the two occasions when she asked for time off to
attend to her parents—once in April and again on June 23,
after the decision to terminate her had been made—she
simply followed Pulte’s usual and customary procedures
for requesting non-FMLA leave by contacting her supervisor, who approved the requests. Because an employee
can be completely ignorant of the benefits conferred by
the FMLA and still be entitled to its protections, see
Stoops v. One Call Commc’ns., Inc., 141 F.3d 309, 312
(7th Cir. 1998), the more pertinent question is whether
Nicholson put Pulte on inquiry notice that she wanted
FMLA-qualifying leave, see id.; see also Aubuchon v. Knauf
Fiberglass, GmbH, 359 F.3d 950, 953 (7th Cir. 2004) (“[T]he
employee’s duty is merely to place the employer on
notice of a probable basis for FMLA leave.”).
To put Pulte on inquiry notice, Nicholson was not
required to specifically refer to the FMLA so long as she
“alert[ed] [her] employer to the seriousness of the
health condition.” Stevenson v. Hyre Elec. Co., 505 F.3d 720,
725 (7th Cir. 2007).2 And where, as here, the need for

2

An employee may be excused from specifically expressing
a need for medical leave in certain limited situations—when,
for example, the employee’s circumstances obviously suggest
(continued...)

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leave concerns a family member rather than the
employee herself, the employee should also indicate that
leave is sought to care for that person. See 29 C.F.R.
§ 825.302(c) (providing that notice may state “that
the condition renders the family member unable to perform daily activities”); see also id. § 825.124(a) (defining
when an employee is “needed to care for” a family member). If Nicholson provided sufficient notice that she
needed time off to care for her seriously ill parents, then
Pulte had a duty to inquire further to confirm Nicholson’s FMLA entitlement. Aubuchon, 359 F.3d at 953 (citing
29 C.F.R. §§ 825.302(c), 825.303(b), 825.305(d)).
Here, the evidence falls short of establishing inquiry
notice. Nicholson had one “casual conversation” with
Naatz and others about the challenges of dealing with
aging parents and may have mentioned her father’s
condition. This is clearly insufficient as a matter of
law to notify Naatz that FMLA-qualifying leave was
needed. Wilhelm knew more, but still not enough to
give rise to the duty to inquire further. With respect to
Nicholson’s mother, prior to June 22—the day the decision was made to fire Nicholson—Nicholson had only

2

(...continued)
the need for medical leave. See Byrne v. Avon Prods., Inc., 328
F.3d 379, 381-82 (7th Cir. 2003). Assuming this exception is
available where the employee is caring for a family member,
it does not apply here. Nicholson has not shown that her
parents’ medical conditions resulted in a “dramatic, observable change” in her work performance. See Burnett v.
LFW Inc., 472 F.3d 471, 479-80 (7th Cir. 2006).

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told Wilhelm that she was driving her mother to
medical appointments on her days off and that she could
not work outside her normal hours because of her responsibilities to her parents. Nicholson never indicated that
she needed time off to care for her mother; nor did
she describe the seriousness of her mother’s condition.
Whether Nicholson gave sufficient notice to Wilhelm
regarding her father is a closer question. Nicholson told
Wilhelm in December 2008 about her father’s cancer
diagnosis and said that she might need time off in the
first quarter of 2009 due to her father’s possible need for
chemotherapy. Nicholson herself characterized the
matter as “open-ended” because of the uncertainties
surrounding her father’s need for treatment. After that
Nicholson asked for, and was granted, one day off in
April 2009 to attend a medical appointment with her
father. She later told Wilhelm that her father’s diagnosis
had worsened to stage III cancer, but did not mention
a possible need for additional time off. Thus, while Wilhelm was alerted to the seriousness of Nicholson’s
father’s health condition, she was not on notice that
Nicholson needed medical leave to care for him.
Nicholson relies on Burnett, but that case is easily
distinguishable. Burnett involved FMLA leave for an
employee’s own medical needs, not for the purpose
of caring for an ill family member. In Burnett the
employee gave “an account of symptoms and complaints, which formed a coherent pattern and progression, beginning with initial symptoms, continuing with
doctor’s visits, and then additional testing and re-

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sults—all communicated (in one form or another) to [his
supervisor].” 472 F.3d at 480. This, we held, was sufficient to place the employer on inquiry notice. Id. at 478.
Here, there was no similar pattern of communication.
And because it was Nicholson’s parents—not Nicholson
herself—who suffered from serious medical conditions,
the need for FMLA leave was not as obvious as it was
in Burnett. While Nicholson did inform Wilhelm of her
father’s serious diagnosis, she did not communicate
that she needed time off to care for him. At most, she
commented on the possibility that she might in the
future have a need to take time off to care for her father.
But Nicholson herself said the matter was “left openended” because of uncertainties surrounding her father’s
need for care. Thereafter, on just one occasion, she asked
for—and was granted—a day off to attend a doctor’s
appointment with him. There were no leave requests
pending when Naatz and Wilhelm decided to terminate Nicholson’s employment. Nicholson’s conversations with Wilhelm were too indefinite to put Pulte
on FMLA inquiry notice.
The facts we have just discussed illuminate another
problem with Nicholson’s claim. There is insufficient
evidence that Pulte did anything to deny or otherwise
interfere with Nicholson’s right to FMLA benefits. At
no time did Wilhelm decline Nicholson’s request for
leave; on the contrary Wilhelm offered to do anything
she could to help. Nicholson makes a half-hearted
attempt to argue that her request for a day off on April 27
to attend her father’s doctor’s appointment was only

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partially granted. But Wilhelm excused Nicholson
during regular business hours that day and merely rescheduled a mandatory meeting to the early morning
hours to accommodate the medical appointment.
Of course, a termination may constitute a denial of
benefits. See Kauffman, 426 F.3d at 884 (7th Cir. 2005) (“A
claim under the FMLA for wrongful termination can be
brought under either a discrimination/retaliation or
interference/entitlement theory . . . .”). But here, Naatz and
Wilhelm made the decision to terminate Nicholson two
months after Wilhelm granted her isolated leave request
and before any additional requests were made. Nicholson
suggests that the decision was made on June 24—not
June 22—after she asked for time off on June 23 to take
her mother to the hospital. This is entirely speculative.
Wilhelm and Naatz testified that they made the decision
to terminate Nicholson on June 22 based on her failure
to show any progress on her performance-improvement plan. They also testified that they postponed notifying Nicholson until the end of her workweek two
days later so that they could arrange coverage for her
office. There is nothing in the record contradicting
this account. Accordingly, the district court properly
entered summary judgment in Pulte’s favor on
Nicholson’s FMLA interference claim.

B. FMLA Retaliation
As a threshold matter, Nicholson’s retaliation claim
requires some evidence that she engaged in FMLA-protected activity. See Burnett, 472 F.3d at 481-82. The

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district court held that because Nicholson did not
provide sufficient notice of the need for FMLA-qualifying
leave, she never engaged in any activity protected by
the FMLA. For the reasons we have explained, we
agree. But even assuming that Nicholson engaged in
protected activity—assuming, that is, that her request
for a day off on April 27 to attend her father’s medical
appointment counted as a request for FMLA leave—her
retaliation claim still falls short.3
A retaliation claim requires proof of discriminatory
or retaliatory intent, which can be established directly or
indirectly. Kauffman, 426 F.3d at 884. Under the direct
method of proof, the plaintiff must have sufficient evidence, direct or circumstantial, that her employer
intended to punish her for requesting or taking FMLA
leave. Smith v. Hope Sch., 560 F.3d 694, 702 (7th Cir.
2009). Additionally, the plaintiff can try to prove retaliatory intent indirectly by showing that she was
performing her job satisfactorily but was treated differently from similarly situated employees who did not
request FMLA leave. Id. Nicholson attempts both
methods of proof. The undisputed evidence plainly
establishes that Nicholson was not performing her job
satisfactorily, so her case under the indirect method fails
at the first step in the analysis. As for the direct method

3

Nicholson also alleges that she engaged in protected
activity on June 23 by requesting leave to take her mother to
the emergency room. As previously discussed, however,
Pulte had already decided to fire her at that point.

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of proof, Nicholson offers only circumstantial evidence
of retaliatory intent, and it comes up short.
First, Nicholson points to what she claims is suspicious
timing, noting that Naatz instructed Wilhelm to place
her on a performance-improvement plan on April 26,
the day after she asked Wilhelm for a day off to attend
her father’s doctor’s appointment. But there is no
evidence that Naatz knew about Nicholson’s request for
a day off or the reason for it. Moreover, there is ample
evidence that Naatz imposed the performance-improvement plan because of Nicholson’s failure to make a
single sale in April and for other on-the-job problems—namely, her lack of knowledge about her sales
area and two specific customer complaints.
Nicholson also argues that the “shifting and inconsistent” timing of the termination decision is circumstantial evidence of retaliatory intent. There is simply
no evidence to support this claim. Naatz and Wilhelm
testified that they made the decision to terminate Nicholson on June 22 because she had not made progress on
her performance-improvement plan; indeed, Nicholson
failed to make a single sale in either May or June. They
also testified that they delayed notifying Nicholson
of their decision until June 24 to arrange coverage at
Nicholson’s sales office. There is no inconsistency or
“shifting” rationale here, and no evidence contradicts
their account.
Finally, Nicholson contends that she was treated differently than other sales associates who were placed on
performance-improvement plans. This contention rests

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primarily on her assertion that it was unusual for
the company to terminate an employee before the expiration of a performance-improvement plan. But the
evidence is undisputed that Nicholson’s plan was
itself unusual—she was given 60 days instead of the
usual 30 to improve, and she was also told that she
was subject to termination if she showed insufficient
improvement at the end of the first month. She also
notes that only a few sales associates actually made or
exceeded their sales goals in 2009 based on the downturn in the housing market, and not all those who failed
to meet their targets were fired. This general trend
among sales agents is too attenuated to raise an
inference that Naatz and Wilhelm were motivated by
retaliatory intent. The district court properly entered
summary judgment for Pulte on Nicholson’s retaliation
claim.
A FFIRMED.

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