McLAUGHLIN v. AUTOZONE STORES, INC.

Filing 71

ENTRY ON CROSS MOTIONS FOR SUMMARY JUDGMENT - 37 Autozone's Motion for Summary Judgment is DENIED and 60 McLaughlin's Cross Motion for Summary Judgment is DENIED. The trial in this matter will cover three areas: (1) whether McLaughlin s July 29 and 30, 2010 absences should be considered in tandem with his August 2 through August 15, 2010 absences for purposes of FMLA leave; (2) whether Autozone violated the FMLAs notice requirements; and (3) if Autozone violated the notice requirements, whether that violation actually caused McLaughlin harm. See Entry for details. Signed by Judge Tanya Walton Pratt on 5/2/2012. (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
MICHAEL W. McLAUGHLIN SR.,
Plaintiff,
v.
AUTOZONERS, LLC,
Defendant.

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Case No. 4:10-cv-00131-TWP-DML

ENTRY ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on the parties’ cross motions for summary judgment. On
August 24, 2010, Defendant Autozoners, LLC (“Autozone”) fired Plaintiff Michael McLaughlin
(“McLaughlin”) for excessive absences. This termination, however, did not arise in a vacuum.
McLaughlin had received a second written warning for attendance problems, and knew that
additional attendance issues could lead to his termination. Unfortunately, McLaughlin missed
work from July 29, 2010 through August 15, 2010 due to health reasons. It is undisputed that his
absences from August 2 until August 15, 2010, which all stemmed from cellulitis in his right
leg,1 qualified for leave under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et
seq. (“FMLA”).
The subjects of this dispute surround McLaughlin’s absences on July 29 and July 30,
2010. McLaughlin claims that those two absences qualify for FMLA leave and therefore cannot
be counted against him for purposes of Autozone’s absenteeism policy. See 29 C.F.R. §
825.220(c) (“[E]mployers cannot use the taking of FMLA leave as a negative factor in
1

Cellulitis is defined as a “spreading inflammation of subcutaneous or connective tissue.” STEDMAN’S MEDICAL
DICTIONARY 137 (1995).

employment actions . . . nor can FMLA leave be counted under ‘no fault’ attendance policies.”).
Autozone disagrees. Relying on evidence suggesting that these absences, although healthrelated, had nothing to do with cellulitis and did not arise out of an FMLA-qualifying condition,
Autozone asserts that its decision to fire McLaughlin was lawful. Because the Court finds that
genuine issues of material fact exist in this case, Autozone’s Motion for Summary Judgment
(Dkt. 37) is DENIED and McLaughlin’s Cross Motion for Summary Judgment (Dkt. 60) is
DENIED.
I. BACKGROUND
Autozone has an attendance policy which provides that an employee will be terminated if
they accumulate 12 points during any 12 month period. Absence is defined as “[b]eing absent
from work on a scheduled workday, even if the [employee] has reported the absence to their
manager.” If, for instance, an employee is absent but provides proper notification, he receives 1
point. But if that employee does not provide proper notification, he receives 2 points. The
policy also provides that no points are issued for absences that are “approved as an FMLA leave
of absence.” McLaughlin began working at Autozone in 2004 and was familiar with its
attendance policies. On April 19, 2010, McLaughlin’s supervisor, Mitchell Hon, issued
McLaughlin a written warning, notifying him that he had accumulated six points due to
attendance issues. Then, on July 1, 2010, McLaughlin’s supervisor issued a second written
warning after McLaughlin accumulated 8 points. McLaughlin understood that “the next steps”
for further absences could include termination.
Later that same month, on July 29 and 30, 2010, McLaughlin missed work. According to
medical records, on Thursday, July 29, 2010 at 8:51 a.m., McLaughlin called his physician, Dr.
Rupp, and told the doctor’s staff that he was a cancer survivor, that his condition demanded

2

urgent attention, and that he needed to get blood work done. The “Reason for Visit” listed on
these medical records was “Blood work/oncology psa/meds check.”2 At the doctor’s
appointment, McLaughlin complained of pain in his abdomen for the past two to three weeks and
“loose stools” for the previous two to three months. The records specifically stated “no fever.”
Under the “New Problems” section of the medical records, the doctor listed “elevated blood
pressure without diagnosis of hypertension; diarrhea; abdominal pain.” Dr. Rupp prescribed
Lexapro, an antidepressant, ordered blood and stool samples, and ordered a CT scan of
McLaughlin’s abdomen to be taken the following day. (Ultimately, the CT scan results were
“unremarkable”.) Dr. Rupp also wrote a note stating that McLaughlin was ill and unable to work
on July 29 and 30, 2010. That day, following his appointment, McLaughlin called his supervisor
and informed him that he had another appointment the next day to have an MRI scan for stomach
issues and kidney stones; he apparently did not mention cellulitis.
Somewhat curiously, during his deposition, McLaughlin provided an altogether different
reason for his visit to Dr. Rupp. He testified that, on July 29, 2010, he visited Dr. Rupp because
he had a “real high fever” of around 101 degrees and that Dr. Rupp had prescribed him “some
kind of antibiotic.” However, McLaughlin added that he “[d]idn’t really know what was going
on at the time.” Given the procedural posture of this case, McLaughlin’s testimony, where
necessary, will be accepted as true, notwithstanding any inconsistency with Dr. Rupp’s medical
records, which do not mention a fever or antibiotics.
On Sunday, August 1, 2010, McLaughlin called his supervisor and informed him that he
would be missing work on Monday due to leg problems that developed on Saturday, July 31,
2010. On Monday, August 2, 2010, McLaughlin called Dr. Rupp’s office again – this time to

2

As Autozone notes, “psa” presumably refers to “prostate specific antigen.” A test for this antigen is sometimes
used as an indicator for prostate cancer. (Dkt. 38 at 3, n. 3.)

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schedule an appointment because of cellulitis on his right leg, which was “warm to touch” and
“painful.” At his appointment, McLaughlin complained that these symptoms “started Friday” –
presumably meaning Friday, July 30, 2010.

Dr. Rupp diagnosed him with cellulitis and

prescribed an antibiotic. Dr. Rupp then wrote a note stating that McLaughlin was ill and unable
to work from July 31 through August 6, 2010.
On August 6, 2010, Autozone sent McLaughlin information regarding short term
disability benefits. The letter began “[t]hank you for submitting your information and request for
Short Term Disability . . . benefits . . . .” The letter further noted that Autozone complies with
the FMLA “in providing job-protected leaves . . . as applicable.” The letter then instructed
McLaughlin how to apply for leave and who to call if he had questions. On August 13, 2010,
McLaughlin filled out his portion of the Employee Disability Form, indicating that his recent
disability of cellulitis began on July 29, 2010, and he was expecting to return to work on August
16, 2010. That same day, Dr. Rupp filled out an “Attending Physician’s Form” regarding
McLaughlin’s condition, writing that McLaughlin’s cellulitis was “first diagnosed” on August 2,
2010. Dr. Rupp also wrote that McLaughlin became “totally disabled” on August 2 (not July 29
or 30), 2010. Finally, Dr. Rupp also wrote that McLaughlin could return to work on August 16,
2010.
On August 16, 2010, McLaughlin returned to work. Just over one week later, on August
24, 2010, Autozone terminated McLaughlin’s employment due to excessive absences.
According to Autozone’s calculation, counting the 1 point he received for the July 29, 2010
absence and the 2 points he received for the July 30, 2010 absence, McLaughlin had
accumulated 12.5 attendance points.3 Upon learning of his termination, McLaughlin responded

3

Arguably, there is a problem of basic arithmetic here. According to McLaughlin, he had accumulated 8 attendance
points by July 1, 2010. He then received 1 point for his absence on July 29, 2010 and 2 points for his absence on

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that “[y]ou can’t do that under the FMLA.” Less than two months later, on October 22, 2010,
McLaughlin filed the present FMLA-based lawsuit.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476
F.3d 487, 489-90 (7th Cir. 2007).

In ruling on a motion for summary judgment, the court

reviews “the record in the light most favorable to the nonmoving party and draw[s] all
reasonable inferences in that party=s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir.
2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue
may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490
(citation omitted). “In much the same way that a court is not required to scour the record in
search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a
paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001)
(citation and internal quotations omitted). Finally, “neither the mere existence of some alleged
factual dispute between the parties nor the existence of some metaphysical doubt as to the
material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion
Bed Group, Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).
July 30, 2010. This only adds up to 11 (still one point below the all-important 12 point threshold). Based on this
faulty math, McLaughlin argues, “it is impossible to conclude . . . that [his] termination was a lawful act undertaken
in accordance with its attendance policy as opposed [to] an unlawful interference with McLaughlin’s FMLA rights.”
(Dkt. 61 at 16). The Court is not persuaded that this is the inevitable upshot of any error of addition. And, besides,
Autozone has produced some evidence suggesting that its calculation was, in fact, correct. (Dkt. 64 at 11 and Dkt.
62-4 at 5.) Under Autozone’s calculation, McLaughlin had accumulated 9.5 points by July 1, 2010 – not 8 points, as
his written warning states. In the end, the jury is in the best position to sort out the existence and meaning of any
mathematical discrepancy.

5

III. DISCUSSION
At its core, this case boils down to a single question: did McLaughlin’s absences on July
29 and 30 qualify for FMLA leave? If they did qualify, then Autozone ran afoul of the FMLA
by counting those absences against him. See 29 C.F.R. § 825.220(c). But if they did not qualify,
then they can be counted for purposes of Autozone’s attendance policy, meaning his termination
was legal. McLaughlin describes his lawsuit as an FMLA “interference” claim. Under this type
of claim, “if an employer terminates an employee because of excessive absences and the
employee was entitled to FMLA leave for some or all of those absences, then the employer has
interfered with the employee’s exercise of his or her rights under the FMLA.” Schober v. SMC
Pneumatics, Inc., 2000 WL 1911684, at *13 (S.D. Ind. Dec. 4, 2000).
Under Seventh Circuit precedent, “[t]o prevail on an FMLA interference claim, an
employee need only show that his employer deprived him of an FMLA entitlement; no finding of
ill intent is required.” Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006) (citation omitted).
Such a claim requires the employee to establish five elements: “(1) he was eligible for the
FMLA’s 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 leave, and (5) his
employer denied him FMLA benefits to which he was entitled.” Id. (citations omitted). The
claim in this case involves elements (3) and (4) – entitlement to leave and notice.
A.

Background on the FMLA
Under the FMLA, “covered employers” must provide an “eligible employee” with “12

workweeks of leave in a 12-month period” for certain enumerated reasons. Stoops v. One Call
Communications, Inc., 141 F.3d 309, 311-12 (7th Cir. 1998). One such reason is the existence of
a “serious health condition that makes the employee unable to perform the functions of the

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employee’s job.” 29 C.F.R. § 825.112(a)(4). “Whether an illness or injury constitutes a ‘serious
health condition’ under the FMLA is a legal question that an employee may not sidestep in the
context of summary judgment merely by alleging his condition to be so.” Haefling v. United
Parcel Service, Inc., 169 F.3d 494, 499 (7th Cir. 1999). This does not mean, however, that
“serious health condition” determinations are always definitively made at the summary judgment
stage. See Sevenson v. Hyre Elec. Co., 505 F.3d 720, 729 (7th Cir. 2007) (issue of material fact
existed regarding whether employee had serious health condition).
According to the regulations, a “serious health condition” is defined as an illness, injury,
impairment or physical or mental condition that involves inpatient care as defined in 29 C.F.R. §
825.114 or continuing treatment by a healthcare provider as defined in 29 C.F.R. § 825.115. See 29
C.F.R. § 825.113. Here, it is undisputed that McLaughlin did not require “inpatient care,” as he
did not have “an overnight stay in a hospital . . . .” 29 C.F.R. § 825.114. As for “continuing
treatment by a healthcare provider,” 29 C.F.R. § 825.115(a) defines that term as follows:
A period of incapacity of more than three consecutive, full calendar days,
and any subsequent treatment or period of incapacity relating to the same
condition, that also involves:
(1) Treatment two or more times, within 30 days of the first day of
incapacity, unless extenuating circumstances exist, by a health care
provider, by a nurse under direct supervision of a health care
provider, or by a provider of health care services (e.g., physical
therapist) under orders of, or on referral by, a health care provider; or
(2) Treatment by a health care provider on at least one occasion, which
results in a regimen of continuing treatment under the supervision of
the health care provider.
29 C.F.R. § 825.115(a). Finally, “incapacity” is defined as “inability to work, attend school or
perform other regular daily activities due to the serious health condition, treatment therefore, or
recovery therefrom.” 29 C.F.R. § 825.113(b).

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Here, the parties agree on a number of issues: Autozone is a “covered employer”;
McLaughlin is an “eligible employee”; and, due to his cellulitis, McLaughlin was entitled to
FMLA leave from August 2, 2010 until he returned to work. Thus, the only real dispute is the
status of the absences on July 29 and July 30, 2010. This leads to three important questions.
First, should McLaughlin’s absences from July 29, 2010 through August 15, 2010 be treated as
one continuous serious health condition? Second, was Autozone entitled to rely on Dr. Rupp’s
certification that McLaughlin did not become “totally disabled” until August 2, 2010? Third,
what is the effect of Autozone’s response to McLaughlin’s notice that he potentially qualified for
FMLA leave? Each of these questions is addressed in turn.
B.

Should McLaughlin’s absence from July 29 through August 15, 2010 be treated as
one continuous “serious health condition”?
McLaughlin frames his health battles as a single continuous bout of illness. In other

words, “[b]ecause Defendant has not, and cannot, present any evidence demonstrating that
McLaughlin was able to work from July 29, 2010 [through] August 15, 2010, McLaughlin’s
incapacity during the entirety of that time has been established.” (Dkt. 61 at 8.) Consequently,
“the undisputed evidence demonstrates that McLaughlin’s [absences] constituted a ‘serious
health condition’ as defined by the FMLA and its governing regulations.” Id.
If only it were that simple. As Autozone emphasizes, there is scant evidence connecting
McLaughlin’s first visit to the doctor to his subsequent diagnosis of cellulitis. McLaughlin’s
July 29, 2010 visit to the doctor was precipitated by abdominal pains (which had lasted for the
last two to three weeks), diarrhea (which had lasted for the last 2 to 3 months), a need for blood
tests, and (according to his deposition) a fever.

In response to these ailments, Dr. Rupp

prescribed Lexapro (an antidepressant), prescribed “some kind of antibiotic” according to
McLaughlin’s deposition, ordered blood and stool samples, and ordered a CT of McLaughlin’s
8

abdomen (which ultimately showed “unremarkable” results). As Autozone notes, “[i]t is clear
from [the medical] records . . . that the condition for which McLaughlin was treated on Thursday
July 29, 2010 and Friday July 30, 2010 is a different condition than the cellulitis for which the
Physician Certification was submitted and for which Autozone approved FMLA leave from
August 2 until his return to work on August 16, 2010.” (Dkt. 38 at 8) (emphasis added). This
argument is well-taken.
However, there is, at the very least, some evidence that McLaughlin’s illness should be
viewed as a single continuous condition. First, at his visit with Dr. Rupp on August 2, 2010,
McLaughlin complained that he had been experiencing cellulitis-related symptoms since Friday
July 30, 2010 (Dkt. 38-3 at 16) (noting that the cellulitis “started Friday”). If McLaughlin’s July
30, 2010 absence is jettisoned from the equation, then he did not accumulate 12 attendance
points and should not have been fired. Second, McLaughlin testified that he visited Dr. Rupp on
July 29, 2010 due to a high fever. He later testified that, over the next few days, his fever
intensified. Finally, he testified that he has experienced cellulitis on four prior occasions since
being employed by Autozone, and that fever has accompanied cellulitis “every time.” This leads
to an inference that McLaughlin’s July 29, 2010 visit to Dr. Rupp was, in fact, connected to
cellulitis. On this point, it is worth highlighting that it is of little import that cellulitis was not
actually diagnosed at this time. As the First Circuit has noted, “[i]t seems unlikely that Congress
intended to punish people who are unlucky enough to develop new diseases, or to suffer serious
symptoms for some period of time before the medical professional is able to diagnose the cause
of the problem.” Hodgens v. General Dynamics Corp., 144 F.3d 151, 163 (1st Cir. 1998).
In the Court’s view, this evidence, coupled together, is enough to create genuine issues of
fact as to whether McLaughlin’s stretch of illness should be viewed as a single continuous

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“serious health condition” – all subject to FMLA leave. And if McLaughlin’s illness is viewed
as a single serious health condition running from July 29 (or July 30), 2010 until he returned to
work, then his termination was presumably improper. In short, the Court finds that this is an
issue best reserved for the jury.
But the Court pauses to clarify two points.

First, the Court is not persuaded by

McLaughlin’s fallback argument: that the illness causing his absences on July 29 and 30, 2010,
standing alone, was a “serious health condition” warranting leave under the FMLA. This
argument only applies if his condition that precipitated the July 29, 2010 doctor’s visit is
considered separate and distinct from his subsequent cellulitis diagnosis. There is no evidence
suggesting that McLaughlin’s first condition – if analyzed in isolation, detached from the
cellulitis – incapacitated him for three full days as required by the regulations. See 29 C.F.R. §
825.115(a).

To the contrary, Dr. Rupp’s note merely stated that this condition – which

essentially entailed stomach problems that had lasted two to three weeks, diarrhea that had lasted
two to three months, and perhaps a fever – only prevented McLaughlin from working for two
days: July 29 and 30, 2010. Plainly stated, McLaughlin has not produced any evidence raising
the inference that this first illness, analyzed alone, was a three-day ordeal. See Bell v. Jewel Food
Store, 83 F.Supp.2d 951, 957 (N.D. Ill. 2000) (an employee “bears the burden of proving that he
was entitled to FMLA leave and the employer violated the statute by denying him such leave”).
Therefore, the Court rejects McLaughlin’s argument that, standing alone, his July 29 and 30,
2010 absences qualify for FMLA leave.
Second, an interference claim requires a showing that an employee is entitled to leave
under the FMLA. A reasonable jury could find that McLaughlin is not entitled to leave for two
reasons. First, as discussed directly above, a jury could find that his July 29 and 30 absences

10

should not be treated as part and parcel of cellulitis-related absences. Second, a jury could find
that McLaughlin’s July 29 and 30, 2010 absences were not health-related at all. According to the
affidavit of Autozone’s Regional Human Resources Manager, Larry Mustain, McLaughlin called
Autozone on the morning of July 29, 2010 around 7:45 a.m. and notified his supervisor that “he
was late for work and was arguing with his wife about which one of them was going to drive
which vehicle” and conceded that “he was going to get one point for being late and asked how
many points he would receive for not coming to work.” This evidence, if credited, gives rise to
an inference that McLaughlin’s July 29 and 30, 2010 absences were not health-related.4 (See
Dkt. 38 at 2, n.1.)
C.

Is Autozone entitled to rely on Dr. Rupp’s certification that McLaughlin did not
become “totally disabled” until August 2, 2010?
Normally, an employer is permitted to rely on a doctor’s certification as to whether an

employee is entitled to leave under the FMLA. As the Seventh Circuit has noted, an employer
does not “violate the FMLA by relying upon [a] certification in the absence of some overriding
medical evidence . . . [a]nd that medical evidence should come from the employee in time to
save his job, not during the subsequent lawsuit.” Stoops, 141 F.3d at 314 (affirming summary
judgment in favor of employer where it relied on plaintiff’s doctor’s “negative certification” that
employee was “not presently incapacitated and would not have to work intermittently or on a
reduced work schedule”). According to Autozone, it was entitled to rely entirely on Dr. Rupp’s
certification – the “Attending Physician’s Form” – which stated that McLaughlin was first
diagnosed with cellulitis on August 2, 2010, and that he became “totally disabled” on that same

4

The Court only makes this observation because McLaughlin filed a cross-motion for summary judgment. Thus,
under the operative legal standard, Autozone’s version of events is accepted as true. Notably, this evidence appears
to have hearsay problems, as Mustain is testifying about what a supervisor told him. That said, McLaughlin did not
object to the admissibility of this evidence in his reply brief. And, more importantly, the Court’s overall decision
does not turn on this ancillary issue.

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day. Therefore, Autozone argues that it “properly considered the absences on July 29 and 30
outside of the FMLA certification and subject to the attendance policy.” (Dkt. 38 at 9.)
While this argument has some appeal, the Court finds that it is better suited for trial for
two reasons. First, it is unclear if Dr. Rupp’s statement – which affirmatively stated when
McLaughlin became “totally disabled” on August 2 (not July 29 or 30) – is akin to a negative
certification like the one present in the Stoops case. See Lara v. Central Grocers Cooperative,
Inc., 2002 WL 31006132, at *5 (N.D. Ill. Sept. 5, 2002) (genuine issues of material fact existed
as to whether a negative certification was issued and whether the employee was aware his
employer was relying upon a negative certification to deny FMLA leave).
Second, and in a somewhat similar vein, Dr. Rupp’s statement did not expressly pertain
to FMLA certification and was not made on the form specifically tailored for FMLA
determinations (i.e. the WH-380-E form, which notably does not contain the phrase “totally
disabled”). Instead, the form that Dr. Rupp filled out pertained to McLaughlin’s eligibility for
short term disability benefits, which presumably explains the use of the term “totally disabled.”
Notably, however, “the standard for qualifying for medical leave under the [FMLA] differs from
the standard for disability status within the meaning of the ADA.”

See, e.g., Jamison v.

Campbell Chain Cooper Tools, 2009 WL 4429733, at *4 (M.D. Pa. Nov. 27, 2009). Although
this is not an ADA case, that principle still applies here.
There are two potentially significant differences between the short term disability form
used in this case and the WH-380E form. First, the term “totally disabled” is not necessarily
interchangeable with “unable to perform job functions,” and it is the latter that is important for
FMLA purposes. Cf. Kauffman v. Federal Express Corp., 426 F.3d 880, 886-87 (7th Cir. 2005)
(a certification is sufficient if it includes, among other things, “a statement that the employee is

12

unable to work”; “[n]o matter what form is used, this information is the only information
required for a sufficient certification”). This may be a matter of mere semantics, as Autozone
argues. But it could also be a game-changer. As McLaughlin writes, “an individual whose sole
restriction is driving may be unable to work as a delivery driver and/or perform the regular daily
activity of driving while being far from ‘totally disabled.’” (Dkt. 69 at 8.) Second, while the
WH-380-E form asks the health care provider to state the “[a]pproximate date condition
commenced,” the short-term disability form instead asks “[w]hen was the condition first
diagnosed.” Arguably, this could be a meaningful nuance under the present circumstances. In
the end, the Court finds that the jury will be in the best position to make the determination as to
what extent Autozone was entitled to rely on Dr. Rupp’s Attending Physician’s Form.
D.

What is the effect of Autozone’s response to McLaughlin’s notice that he potentially
qualified for FMLA leave?
Assuming that July 29 through August 15, 2010 should be treated as a single serious

health condition (since a reasonable jury could reach that conclusion), the Court must then assess
whether McLaughlin provided the requisite notice to Autozone. “When the employee fails to
give his employer proper notice, the employer is under no duty to provide FMLA leave.” Righi
v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011). But, 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.” Id. at 409 (citations and
internal quotations omitted). Here, McLaughlin kept his employer apprised of his condition; his
conduct was adequate to meet the modest “notice” threshold.
From there, an employee’s notice triggers certain duties on the part of an employer:
“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
13

to process the leave request.” Id. Specifically, the employer “must notify the employee of the
employee’s eligibility to take FMLA leave within five business days, absent extenuating
circumstances.” 29 C.F.R. § 825.300(b)(1) (emphasis added). This notice must include at least
seven categories of information. See 29 C.F.R. § 825.300(c)(1). And, notably, the “[f]ailure to
follow the notice requirements set forth in this section may constitute an interference with,
restraint, or denial of the exercise of an employee’s FMLA rights.” 29 C.F.R. § 825.300(e)
(emphasis added).
On August 6, 2010, Autozone sent McLaughlin information regarding short term
disability benefits. The letter noted that Autozone complies with the FMLA “in providing jobprotected leaves . . . as applicable.” The letter further instructed McLaughlin how to apply for
leave and who to call if he had any questions. As McLaughlin emphasizes, however, it is quite
possible that Autozone did not comply with the precise letter of the law in this area. For
instance, if McLaughlin’s July 29, 2010 call to his employer constituted “notice,” then Autozone
did not notify McLaughlin of his potential FMLA eligibility within five business days; instead, it
waited six days. Moreover, Autozone’s letter did not meet the informational requirements of 29
C.F.R. § 825.300(c)(1). From this, McLaughlin argues that Autozone’s “non-compliance with
the regulatory mandates” kept him “in the dark about his FMLA rights,” directly leading to his
“inability to secure FMLA protections” for July 29 and 30, 2010. (Dkt. 62 at 13.)

This,

McLaughlin argues, amounts to an “unlawful interference with . . . the exercise of his FMLA
rights” as a matter of law. Id. at 13-14. Accordingly, McLaughlin asks for summary judgment.
The Court is not persuaded for one key reason, that being, a “no harm, no foul” principle
applies to notice requirements. Autozone has a strong argument that even if it “did commit a
technical violation,” McLaughlin “has not been harmed by any failure to receive notice and

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therefore cannot recover for an FMLA violation.” (Dkt. 64 at 8-9); see also Easley v. YMCA of
Metropolitan Milwaukee, 335 Fed. Appx. 626, 632 (7th Cir. 2009) (“But [plaintiff’s] leave was
approved, and [plaintiff] has not shown that the omission of formal notification resulted in harm
as is required to recover for a FMLA violation.”); see also 29 C.F.R. § 825.300(e) (describing
consequences of an employer’s failure to provide proper notice).
After all, the vast majority of McLaughlin’s absences (from August 2 through August 15)
were, in fact, approved for FMLA leave. Thus, it is somewhat difficult to discern how any
notice deficiencies are linked to the denial of FMLA leave for McLaughlin’s July 29 and 30,
2010 absences. It is not as if, for instance, Autozone flatly denied McLaughlin leave due to his
failure to submit a timely certification. Contrary to his assertions, McLaughlin was obviously
not “kept . . . in the dark about his FMLA rights.” Rather, he applied for and received FMLA
leave – just not enough leave to allow him to stave off termination under Autozone’s attendance
policy.
McLaughlin responds by contending that he was denied FMLA leave because, among
other reasons, Autozone never provided “FMLA certification forms allowing his doctor to
properly certify the entirety of the absence as FMLA qualifying.” (Dkt. 69 at 5). As alluded to
above, this argument potentially has merit. As McLaughlin highlights, 29 C.F.R. §
825.300(c)(1)(ii) provides that the FMLA notice given to employees must include “[a]ny
requirements for the employee to furnish certification of a serious health condition, serious injury
or illness . . . and the consequences of failing to do so.” 29 C.F.R. § 825.300(c)(1)(ii). In short, it
is possible that the result could have been different had Autozone furnished McLaughlin with the
requisite information. Again, the Court finds that this is an issue best left for a jury to decide.

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IV. CONCLUSION
Because the Court finds that genuine issues of material fact exist in this case, Autozone’s
Motion for Summary Judgment (Dkt. 37) is DENIED and McLaughlin’s Cross Motion for
Summary Judgment (Dkt. 60) is DENIED. The trial in this matter will cover three areas: (1)
whether McLaughlin’s July 29 and 30, 2010 absences should be considered in tandem with his
August 2 through August 15, 2010 absences for purposes of FMLA leave; (2) whether Autozone
violated the FMLA’s notice requirements; and (3) if Autozone violated the notice requirements,
whether that violation actually caused McLaughlin harm.

SO ORDERED.

05/02/2012

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Philip J. Gibbons , Jr
GIBBONS JONES, P.C.
[e-mail], [e-mail]
Andrew G. Jones
GIBBONS JONES P.C.
[e-mail]
Laurie Goetz Kemp
KIGHTLINGER & GRAY, LLP-New Albany
[e-mail], [e-mail]

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