James McQuillen v. PetSmart, Inc.
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Frank H. Easterbrook, Circuit Judge. [6860514-1]  [17-1456]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 8, 2017*
Decided August 10, 2017
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
Appeal from the United
States District Court for the
Northern District of Illinois,
No. 15 C 9953
Robert W. Gettleman, Judge.
James McQuillen did not show up for work on April 14, 2014, or let PetSmart, his
employer, know that he was not coming. He did not appear the next day either, or the
next. Responding to a call from PetSmart on April 15, McQuillen’s wife said that her
husband was home in bed, drunk and unconscious. On April 17 McQuillen’s sister persuaded McQuillen’s wife to allow him to be taken to a hospital. There he was treated for
major depressive disorder, anxiety disorder, and alcoholism. He had been diagnosed
The case was set for oral argument on August 8, but both parties waived their right to participate.
with those conditions before starting work at PetSmart, but he never told his employer
about them, and his absences took PetSmart by surprise. He was fired under a company
rule providing that missing two consecutive days’ work, without notice, constitutes
abandonment of the job.
McQuillen contends that the discharge violates his rights under the Family and
Medical Leave Act, 29 U.S.C. §§ 2601–54. The FMLA does not prevent employers from
enforcing attendance policies, see Gilliam v. United Parcel Service, Inc., 233 F.3d 969, 972
(7th Cir. 2000), but requires them to honor proper requests for leave. The district court
granted summary judgment for PetSmart, observing that substance abuse justifies
FMLA leave only if it is being treated, see Darst v. Interstate Brands Co., 512 F.3d 903, 908
(7th Cir. 2008), which it was not until McQuillen reached the hospital on April 17, and
that McQuillen had not requested FMLA leave, as the statute requires. 2017 U.S. Dist.
LEXIS 22815 (N.D. Ill. Feb. 16, 2017).
The first of the district court’s reasons is not conclusive, because McQuillen’s medical problem was not simply substance abuse. His conditions included major depressive
disorder, and his depression led him to attempt suicide by drinking. But the statutory
notice requirement is an insuperable obstacle. Employees must both request leave and
give advance notice when the need for leave is foreseeable. 29 U.S.C. §2612(e); Byrne v.
Avon Products, Inc., 328 F.3d 379, 381 (7th Cir. 2003). McQuillen contends that an unconscious person cannot give notice, advance or otherwise. But that’s the wrong perspective. He could have told PetSmart about his problems and their potential to occasion
time off the job, but he did not do so. And before starting to drink heavily he could have
given notice. He was not suffering from a sudden-onset medical problem of the kind
discussed in Byrne. His conditions are chronic, but he chose to keep PetSmart in the
dark. All his employer knew—all it could have known—was that McQuillen did not
show up for multiple days running and was drunk at home. That would not have suggested to a reasonable employer either a request or a need for FMLA leave to treat major depression. It suggested only voluntary substance abuse.
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