Family and Medical Leave Act 102: Casual Comments to Supervisors About Parents’ Poor Health Is Not Adequate Notice Under FMLA

Contributed by Carly Zuba

A few months back, I blogged about an Eighth Circuit case in which the court held that an employee who failed to call in or show up for work on three consecutive shifts following a period of intermittent FMLA leave had no viable FMLA interference claim.  Today, I bring more good news for employers on the FMLA-front: the Seventh Circuit recently held that an employee’s “casual comments” to supervisors about her aging parents’ ill health did not sufficiently put her employer on notice regarding her need for leave to take care of them under the FMLA (Nicholson v. Pulte Homes Corp., 7th Cir., No. 11-2238, 8/9/12).

Nicholson, a sales associate for Pulte Homes Corporation, first mentioned her father’s leukemia to her supervisor in December 2008, stating that she “might” need time off due to his potential need for chemotherapy treatment.  In February 2009, Nicholson had a “casual conversation” with several Pulte employees, including one of her supervisors, about the “challenges of dealing with aging parents.”  In April 2009, Nicholson mentioned to her supervisor that she was driving her mother to medical appointments on her days off.  Later that month, Nicholson told her supervisor that her father had stage III cancer, but did not indicate a need for any time off.

Around this time, Nicolson was placed on a performance improvement plan (PIP) following several months in which she failed to meet her sales goals and received two customer complaints.  Since Nicholson failed to improve and did not make a single sale in May or June, she was terminated on June 24, 2009.  Nicholson then sued the company for FMLA interference and retaliation.

In order to establish a claim for FMLA interference, a plaintiff must show that she provided sufficient notice of her intent to take FMLA leave.  And in order to establish an FMLA retaliation claim, a plaintiff must show that she engaged in FMLA protected activity (e.g. asking for FMLA-qualifying leave).  Thus, the key issue in this case was whether Nicholson put the company on notice that she wanted to take FMLA leave.  While the FMLA does not require an employee to specifically refer to the statute when notifying an employer of the need for FMLA leave, an employee must nonetheless alert the employer to the seriousness of the family member’s health condition and indicate that leave is required for care purposes. 

The Seventh Circuit was not convinced that Nicholson put the company on notice of a need for FMLA leave.  The court decided that her one “casual conversation” about aging parents was “clearly insufficient as a matter of law to notify [her supervisor] that FMLA-qualifying leave was needed.”  And although Nicholson alerted a supervisor of the seriousness of her father’s medical condition, she did not put her supervisor on notice that she needed leave to care for him.

A cautionary note: Employers should not use this case as an excuse to willfully disregard evidence that an employee needs FMLA leave.  However, this decision illustrates the fact that the Seventh Circuit understands that employers are not mind-readers; as such, employers are not expected to know that employees need FMLA leave without reasonable proof of a request for leave OR clear indication of a need for leave.