Beverly Stevenson worked for the Hyre Electric Company. Up until February 9, 2004, Stevenson had no documented history of misconduct or health problems while on the job. On February 9, 2004, Stevenson suffered an extreme emotional and physical reaction to a stray dog entering her workspace at Hyre. The stray had climbed through a window of the Hyre warehouse and approached Stevenson. Stevenson immediately experienced a headache, a rush of blood to her head, and a tightening of her neck and back. Stevenson’s supervisor, Mary Cicchetti, entered Stevenson’s workspace after the incident and found Stevenson screaming, “that f**king animal shouldn’t be in the workplace.” According to Cicchetti, Stevenson’s screaming continued for three or four minutes.
After the incident, she left work stating that she was ill and needed to go home. The next morning, she left a voicemail for her supervisor indicating that she “wasn’t feeling well and … wouldn’t be in today.” On a few occasions, she did attempt to return to work but was unable to function and demonstrated erratic and emotional behavior.
On February 11, Stevenson went to her workplace at approximately 7:00 a.m. to speak with Charles Guest, Hyre’s president. Guest testified that “[Stevenson] charged into my office yelling and in a very aggressive manner.” He continued, “She said it was wrong for her to be subjected to this kind of thing in the office, to have f* *king dogs running by her desk and threatening her, and that management needs to do something about this.” Guest tried unsuccessfully to calm her down, but she continued to scream at him. He also assured her that every effort would be made to prevent anything similar from happening in the future. Despite Guest’s assurances, Stevenson told him that “she could not work” and left the premises.
On that same day, Stevenson filed a complaint with the Occupational Safety and Health Adminstration concerning stray animals at Hyre’s workplace. She also went to the emergency room but was discharged with a diagnosis of “anxiety and stress.”
On the twelfth, Stevenson called in sick to her supervisor. Later that day, she met with a union representative, Richard Sipple, to discuss the dog incident. Stevenson also called in sick on Friday, February 13 and Monday, February 16. Stevenson did report to work on February 17. Cicchetti had boxed up Stevenson’s personal items and moved them to another room, allegedly to accommodate her fear of stray animals. Stevenson only remained at work for a few hours but did call the police claiming harassment and left the hospital’s report of her emergency room visit with Hyre before leaving. After she left, Guest gave Cicchetti permission to change the locks on the doors of Hyre’s office. Guest then sent a letter to Stevenson that stated in part:
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You no longer have any accrued vacation or sick leave available. Therefore, any additional leave must be governed by Hyre’s Family and Medical Leave Policy. Under the provisions of Hyre’s Employment Manual, you are required to obtain a medical certification from your physician or other health care provider for a serious health condition FMLA leave. If you do not do so within fifteen (15) days from the commencement of your leave or by Tuesday, February 24, 2004, your absences will be deemed unexcused and you will be terminated from Hyre’s employ.
On February 18, Stevenson called into work sick. She did attend her doctor’s appointment with Dr. Mary Jo Liszek, her primary care physician. Dr. Liszek prescribed a sleep aid and requested that Stevenson return in two days.
On February 20, Stevenson met with her union representatives. She told them what had happened on the 9th and provided them with the documentation of her ER visit. Later that day, Dr. Liszek provided her with a note excusing her absences from work.
On February 23, Stevenson did not return to work claiming that her union had told her that it did not want her to return to work. Her union representatives did provide Hyre with a copy of Dr. Liszek’s note. The next morning, after initially calling off work, Stevenson did report to work but found the locks had been changed. She knocked until Guest answered. Guest gave her her personal belongings and told her that she was not coming back into the office. Guest later reported to the union that Liszek’s note was not sufficient. Liszek provided a second note on behalf of Stevenson releasing her to return to work. The union provided this to Guest but Guest never responded.
One month after the initial incident resulting from the stray dog’s entrance, Hyre informed Stevenson by letter that she had been terminated from her employment on February 25.
Stevenson later filed suit against Hyre claiming that it had notice that she was suffering from a serious health condition and violated her rights under the Family and Medical Leave Act when it fired her. Hyre claimed that it had no notice that Stevenson was suffering from a serious mental health condition. The district court agreed that Hyre did not have such notice and granted summary judgment in favor of Hyre. Hyre appealed that decision to the Seventh Circuit Court of Appeals.
The court of appeals began its analysis with the determination of whether Stevenson provided notice of her need for FMLA leave. The FMLA requires that an employee give 30 days advance notice of the need for FMLA leave. If the need for FMLA leave is not foreseeable then the employee should give notice of the need for FMLA leave as soon as practicable. Generally, where the need for FMLA leave is not foreseeable, an employee should give notice within no more than one or two working days of the need for leave except in extraordinary circumstances. The notice must succeed in alerting the employer to the seriousness of the health condition.
The appeals court determined that Stevenson was aware that she was suffering from a serious health condition no later than February 11 when she went to the emergency room. Despite that awareness, she did not provide notice of her need for leave within two working days. Under the traditional analysis, Stevenson had not lived up to her end of the FMLA bargain.
Although direct notice did not occur, the appeals court indicated that Stevenson’s case could go forward if Hyre had constructive notice of her need for FMLA leave. In Byrne v. Avon Products, 328 F.3d 379 (7th Cir.2003), the Seventh Circuit held that either an employee’s inability to communicate his illness to his employer or clear abnormalities in the employee’s behavior may constitute constructive notice of a serious health condition. “It is enough under the FMLA if the employer knows of the employee’s need for leave; the employee need not mention the statute or demand its benefits.” The Byrne court concluded that “unusual behavior” alone can be “enough to notify a reasonable employer than [an employee] suffered from a serious health condition.”
The court of appeals noted that Stevenson had been a model employee up until February 9, 2004. After the incident with the stray dog, her behavior drastically changed. In addition to the facts as provided, the appeals court highlighted Cicchetti’s testimony concerning Stevenson’s comportment on February 17: “I tried to explain to her that we moved her desk so she could close the door, and she started yelling again,” and that Stevenson responded “I don’t want to sit in there. I can’t breathe in there,” and then she called the police. Stevenson testified about her agitated state during all three of these encounters. Guest, the company president, acknowledged that they thought the problem was severe enough to warrant changing the locks: “[w]e were concerned about Beverly coming into the workplace.” He testified further, “I was concerned about having a very angry employee,” and said that this concern was based solely on the incidents that took place between February 9 and 17.
The Seventh Circuit concluded that under these facts a trier of fact could find that Stevenson’s behavior was so unusual as to give Hyre constructive notice of her need for FMLA leave. A court could not make such a judgment as a matter of law and reversed the lower court’s finding.
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