Kiersten Taylor-Novotny v. Health Alliance Medical Plans , 772 F.3d 478 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3652
KIERSTEN M. TAYLOR-NOVOTNY,
Plaintiff-Appellant,
v.
HEALTH ALLIANCE MEDICAL PLANS,
INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:12-cv-02132-jes-jag — James E. Shadid, Chief Judge.
ARGUED MAY 28, 2014 — DECIDED NOVEMBER 26, 2014
Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.
RIPPLE, Circuit Judge. Kiersten M. Taylor-Novotny brought
this action against her former employer, Health Alliance
Medical Plans, Inc. (“Health Alliance”), under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the
Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-
2654, and Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e et seq. Specifically, she contended that Health
2 No. 13-3652
Alliance had failed to accommodate her multiple sclerosis as
the ADA required, had discriminated and retaliated against
her based on her disability, had interfered with her FMLA
rights, and had discriminated against her based on her race.
She also asserted a state law claim of intentional infliction of
emotional distress. The district court granted summary
judgment for Health Alliance on each of her claims.1
We now affirm the district court’s judgment. Ms. Taylor-
Novotny cannot succeed on her ADA discrimination claim
because she did not establish that she was disabled within the
meaning of the ADA and because she was not meeting Health
Alliance’s legitimate expectations for punctuality and account-
ability. Her failure to meet Health Alliance’s legitimate
expectations also forecloses her race discrimination claim. She
cannot succeed on her ADA failure-to-accommodate claim
because she did not establish that the additional accommoda-
tion that she sought from Health Alliance was reasonable.
Further, the evidence that she offers for her ADA retaliation
claim is insufficient to form a convincing mosaic suggesting
that Health Alliance retaliated against her because she sought
accommodations for her multiple sclerosis. Finally, her FMLA
interference claim must fail because Health Alliance never
denied Ms. Taylor-Novotny FMLA leave.
1
On appeal, Ms. Taylor-Novotny does not challenge the district court’s
ruling on her intentional infliction of emotional distress claim. We therefore
do not address it.
No. 13-3652 3
I
BACKGROUND
A. Facts
Ms. Taylor-Novotny, an African-American woman, began
her employment with Health Alliance in November 2005. She
was hired by Jeff Polk, who also is African-American, for the
position of Contract Specialist I. As a Contract Specialist I,
Ms. Taylor-Novotny was a salaried, rather than hourly,
employee. Her job responsibilities included document prepara-
tion, negotiating and reviewing contract terms with medical
providers, planning proactively for contract renewals, and
documenting activities related to medical provider contracts in
a contracting management system. At the time Ms. Taylor-
Novotny was hired, she had not been diagnosed with multiple
sclerosis.
Almost immediately, Ms. Taylor-Novotny encountered
difficulties with punctuality and attendance. Cherie Fletcher,
Ms. Taylor-Novotny’s immediate supervisor, discussed the
issue of tardiness with her in May 2006, and again in December
2006. When Ms. Taylor-Novotny received her first annual
performance review in January 2007, Fletcher rated her overall
performance as average, but rated her attendance and punctu-
ality as marginal. Fletcher noted that Ms. Taylor-Novotny
“routinely” arrived late and that she had an “unusual” number
of appointments during the work day, including at least thirty
appointments noted by Fletcher.2
2
R.31-2 at 30–31.
4 No. 13-3652
In March 2007, Health Alliance adjusted Ms. Taylor-
Novotny’s work schedule to make it easier for her to arrive on
time. Specifically, the company pushed back her start time
from 8:00 to 8:30 a.m. Shortly after this adjustment, in April
2007, Ms. Taylor-Novotny was diagnosed with multiple
sclerosis.
The adjustments to Ms. Taylor-Novotny’s schedule did not
have the desired result. Ms. Taylor-Novotny was tardy twenty-
nine times between March 28, 2007, when her start time was
changed, and September 10, 2007. In October 2007, Fletcher
met with Ms. Taylor-Novotny to discuss her “[c]ontinued
[t]ardiness” and to implement a “Corrective Action Plan.”3 The
plan required Ms. Taylor-Novotny to check in with Fletcher
upon arrival each day. To assist Ms. Taylor-Novotny in her
efforts to arrive in a timely fashion, Health Alliance again
adjusted her start time to 8:45 a.m. The plan warned
Ms. Taylor-Novotny that continued tardiness would result in
progressively more serious discipline, beginning with warn-
ings and ending with termination. Ms. Taylor-Novotny signed
the plan.
Ms. Taylor-Novotny’s December 2007 performance
evaluation recorded ongoing problems with tardiness. She was
rated “Average” in most categories, but “Marginal” in the
categories of “Initiative” and “Attendance and Punctuality.”4
The review indicated that Ms. Taylor-Novotny had an
“ongoing problem with tardiness despite the adjustment of her
3
Id. at 33.
4
Id. at 35–36.
No. 13-3652 5
work hours on two different occasions.”5 She was reminded
that a “corrective action plan [had been] implemented” in
October 2007 and that, despite Ms. Taylor-Novotny’s status as
a salaried employee, “there [wa]s still an[] expectation that she
ha[ve] predictable attendance and office hours.”6
On May 25, 2008, Ms. Taylor-Novotny submitted an FMLA
Certification to Health Alliance for her multiple sclerosis. Her
physician recommended that she work two days a week from
home and noted that she “may miss work for appts/testing/or
due to [her multiple sclerosis] diagnosis.”7 Health Alliance
approved “intermittent time off as needed to manage [her]
condition as specified by [her] physician.”8 Health Alliance
noted, however, that it was Ms. Taylor-Novotny’s “responsibil-
ity to let [her] manager know each time an absence from work will be
necessary, as well as whether or not [her] absence should be charged
to this approved Family Leave.”9
In December 2008, Ms. Taylor-Novotny began working
from home three days per week. Her “Work From Home”
agreement required her to abide by all company policies and
procedures and to advise Health Alliance if she were ill, had an
5
Id. at 36.
6
Id.
7
R.31-3 at 28.
8
Id. at 31.
9
Id. (emphasis in original).
6 No. 13-3652
appointment, or encountered other interferences with her
work.10
Six months later, in May 2009, Ms. Taylor-Novotny submit-
ted an additional FMLA Certification to Health Alliance. Her
physician noted that she had delivered a baby in April 2009
and stated that she “may miss work for appts/testing/and
possibly due to [multiple sclerosis] itself.”11 Health Alliance
again approved “[i]ntermittent time off as needed.”12 The
approval again advised Ms. Taylor-Novotny that she had to
“let [her] manager know each time an absence from work will be
necessary, as well as whether or not [the] absence should be charged
to this approved Family Leave.”13
In her June 2009 performance evaluation, Ms. Taylor-
Novotny earned an overall rating of “Achieves Require-
ments.”14 The evaluation warned, however, that “[t]ardiness
remains an issue and concern despite numerous discussions”
and that “[d]espite the fact that [Ms. Taylor-Novotny] is a
salaried employee, there is still an expectation that she has
10
R.31-2 at 44–45.
11
R.31-3 at 38.
12
Id. at 42.
13
Id. (emphasis in original).
14
R.31-2 at 61. The evaluation form used by Health Alliance changed
between January 2008 and June 2009. The “Achieves Requirements” rating
appears to correspond on Health Alliance’s new scale to her earlier
“Average” rating.
No. 13-3652 7
predictable office hours.”15 The evaluation, which she signed,
set goals for her to improve her punctuality.
Ms. Taylor-Novotony maintains that she told Health
Alliance staff in early 2010 that excessive fatigue from her
multiple sclerosis caused her tardiness. On March 9, 2010,
Ms. Taylor-Novotny submitted a note from her neurologist,
dated February 11, 2010, that specified that she should not
work in the office more than two half-day periods per week.16
At Health Alliance’s request, Ms. Taylor-Novotny submitted
a recertification from her neurologist, dated April 21, 2010,
clarifying his recommendations. That recertification noted her
“extreme [multiple sclerosis] fatigue” and recommended that
her work in the office be limited to two half-days per week.17
Health Alliance once more approved “[i]ntermittent time off as
needed.”18 In addition to a standard form letter, Health Alli-
ance’s FMLA Specialist, Deb Beeson, sent Ms. Taylor-Novotny
an email noting that “[w]hen you miss work for this reason,
15
Id. at 59.
16
See R.31-3 at 58. Initially, Health Alliance mistakenly read the physician’s
note as limiting Ms. Taylor-Novotny’s time in the office to two-and-a-half
days per week, rather than two half-days. The physician’s recommenda-
tions were clarified at a March 19, 2010 meeting between Ms. Taylor-
Novotny and management.
17
Id. at 45.
18
Id. at 49.
8 No. 13-3652
please notify your manager/director [that] it is for a Family
Medical Leave (FMLA) reason.”19
Some time in March 2010, Ms. Taylor-Novotny also began
consulting with Health Alliance about ADA accommodations
for her multiple sclerosis. These discussions led Health
Alliance to implement several changes in Ms. Taylor-
Novotny’s physical work arrangement. For example, Health
Alliance offered to have another employee retrieve documents
from the printer and deliver mail for Ms. Taylor-Novotny. It
also worked with her to reduce the files and other items that
she needed to carry between her home and the office. These
accommodations were successful in alleviating some of the
fatigue related to Ms. Taylor-Novotny’s condition. At this time,
Ms. Taylor-Novotny also requested that she be allowed to use
her badge scans to document her arrival times, instead of being
required to inform her supervisor directly when she was late
and the reason for her tardiness. Because the badge scans only
recorded the time of entrance, but neither provided advance
notice of, nor the reason for, the late arrival, Health Alliance
refused this request.
Ms. Taylor-Novotny also met with Fletcher, Polk, and
Tara Swearingen, Vice President of Human Relations, on
March 19, 2010, to discuss Ms. Taylor-Novotny’s continued
tardiness. Swearingen reiterated that Ms. Taylor-Novotny
“must contact [Fletcher] every time she will be late, her
expected arrival time, and the reason for the lateness, regard-
19
Id. at 48.
No. 13-3652 9
less of whether she is scheduled in the office or at home.”20 She
explained that “the amount of time she is late, when due to her
FMLA will be entered as FMLA leave”; however, “[t]ardiness
unrelated to her FMLA, or lack of timely notification and
communication is subject to disciplinary policies.”21
Following this meeting, Ms. Taylor-Novotny arrived thirty-
five minutes late for work on March 23 and seventy minutes
late for work on March 30. She did not contact Fletcher on
either occasion to advise her that she would be late or to
provide the reason for the late arrival. As a result, Ms. Taylor-
Novotny received a written warning. She refused to sign the
warning because she believed it was premature in light of her
ongoing negotiations with Health Alliance about accommodat-
ing her multiple sclerosis.
In April 2010, Health Alliance crafted an official attendance
policy specific to FLSA-exempt employees. That policy
required employees to report absences to supervisors before
their scheduled shifts. Similar to the plan that had been put in
place for Ms. Taylor-Novotny, the policy incorporated progres-
sive discipline, including a verbal warning, written warning,
final written warning, suspension, and termination.22
20
R.31-2 at 65.
21
Id.
22
Before that time, Health Alliance had relied on a general misconduct
policy for both salaried and hourly employees. The general policy also had
incorporated progressive discipline and noted that any disciplinary action,
including termination, could be given independently of the others.
10 No. 13-3652
On May 5, 2010, Ms. Taylor-Novotny received her perfor-
mance evaluation. Although she received an overall rating of
“Achieves Requirements,” she received a rating of “Does Not
Meet Requirements” in the area of “Dependability, Compli-
ance and Professionalism.”23 The review noted that “[t]here
continues to be a concern about tardiness and notification of
late arrivals” and that she was “currently under Disciplinary
Action for failure to notify of tardiness and FML tracking.”24 It
instructed that Ms. Taylor-Novotny had to “[i]mprove notifica-
tion and tracking of late start times” and “[p]rovide advance
notice of and reason for late start times and early departures.”25
The review also assessed Ms. Taylor-Novotny as “Need[ing]
Improvement” in the area of “Accountability.”26 Specifically,
it noted that she needed to “[i]mprove contract follow-up. …
Follow-up with potential providers in accordance with
departmental guidelines. Track all activities in Contract
Negotiation tracking log. Identify and approach all non-
contracted [hospital-based providers] and complete contracts
with at least six by 12/31/10.”27 Ms. Taylor-Novotny signed the
evaluation.
23
Id. at 72–74.
24
Id. at 73.
25
Id.
26
Id. at 71.
27
Id. at 72. To assist Ms. Taylor-Novotny in meeting this goal, Fletcher set
up interim deadlines for identifying and contacting hospital-based
providers. See R.31-1 at 35–36 (Taylor-Novotny Dep. at 130–33).
No. 13-3652 11
On May 17, 2010, Health Alliance’s Human Resources
Director, Lauren Schmid, told Ms. Taylor-Novotny in an email
that, if she limited her office work to two half-days per week
as her neurologist had recommended in his FMLA
recertification, she would need to use FMLA leave for the other
half of each office day. According to Schmid, allowing Ms.
Taylor-Novotny to work only two half-days in the office
without taking FMLA leave did not meet Health Alliance’s
“business needs.”28 Specifically, Swearingen had noted in a
previous, internal email that Fletcher and Polk “[we]re not
comfortable” with Ms. Taylor-Novotny working from home
full-time because “there is little ability to control how much
work time she is actually putting in.”29
Ms. Taylor-Novotny decided not to adopt that schedule
because it would have reduced her FMLA leave bank and her
overall pay.30 Schmid also told Ms. Taylor-Novotny in the
email that Health Alliance would seek further information
from her physician about whether her multiple sclerosis met
the ADA definition of disability. Schmid sent a letter seeking
information on Ms. Taylor-Novotny’s status under the ADA to
her physician that same day.
On May 21, 2010, Health Alliance issued Ms. Taylor-
Novotny a Final Written Warning for arriving late eight times
28
R.31-3 at 62.
29
R.32-4.
30
Since FMLA leave is unpaid, Ms. Taylor-Novotny would have effectively
reduced her pay by twenty percent by accepting the offer.
12 No. 13-3652
between April 13 and May 7 without notifying her supervisor
about her tardiness. The warning explained that, when Fletcher
repeatedly had requested Ms. Taylor-Novotny’s arrival times,
it took Ms. Taylor-Novotny two weeks to respond. When she
did so, a comparison between her reported times and her
badge scans revealed eight tardies, ranging from seven to
forty-two minutes, none of which had been reported in
advance to Fletcher. The Final Written Warning noted that
future inaccurate reporting of her arrival times could be
construed as falsification of time records or could lead to
termination. It also repeated that Ms. Taylor-Novotny was
required to advise Fletcher when she would be late and the
reason for her tardiness.
Three days after she received the Final Written Warning,
Ms. Taylor-Novotny renewed her request to use her entrance
badge scans to report her work start times because “having to
remember what time [she] arrived to work [wa]s just one more
thing [she] ha[d] to do.”31 Health Alliance denied this request.
Ms. Taylor-Novotny filed a grievance on June 4, 2010,
challenging the discipline that she had received. She noted that
her tardiness “ha[d] been consistent” and “brought up on
Annual Employee Evaluations” during her time at Health
Alliance.32 She further asserted that the efforts of Health
Alliance to monitor her arrival times had created a hostile
work environment. She concluded that her position could
31
R.31-3 at 68.
32
Id. at 6.
No. 13-3652 13
“clearly be done from home full time.”33 Ms. Taylor-Novotny
also sent a letter to the CEO of Health Alliance on July 2,
complaining that she had been singled out for adverse actions
even though “time theft [wa]s rampant” in the company.34
Ms. Taylor-Novotny’s punctuality problems continued in
June and July. Health Alliance documented and brought to her
attention repeated discrepancies between her reported work
arrival times and her badge scans. Specifically, on June 21,
2010, Schmid questioned her about the reported arrival times
for June 1 and June 8, for which her badge scans revealed she
was forty-six and twenty-eight minutes late, respectively.
According to Schmid’s documentation of that meeting,
Ms. Taylor-Novotny “indicated that she was not certain what
had happened and attributed the discrepancies in reporting
her time to a misunderstanding, a rounding error, a typo, or
her medical condition.”35
Less than ten days after her meeting with Schmid,
Ms. Taylor-Novotny was working from home on June 28, 2010,
and did not log onto her computer until 12:42 p.m., four hours
and twelve minutes after her designated start time.
Ms. Taylor-Novotny later attributed this discrepancy in time to
internet connectivity problems. Nevertheless, she failed to
report the issue to her supervisor as required by Health
33
Id. at 7.
34
R.31-2 at 22.
35
R.31-3 at 9.
14 No. 13-3652
Alliance’s work at home policy.36 A few weeks later,
Ms. Taylor-Novotny reported a start time of 1:15 p.m., but did
not log on to her computer until 1:45 p.m. She attributed this
discrepancy to a typo.
In a letter dated July 13, 2010, Ms. Taylor-Novotny’s
physician responded to Schmid’s inquiry from May about
Ms. Taylor-Novotny’s limitations. He wrote that she suffered
“very poor energy and stamina.”37 He suggested “a flexible
work schedule that would allow her to work efficiently when
she is doing well but then allow rest periods when she is
having a bad day.”38
Polk terminated Ms. Taylor-Novotny’s employment on July
30, 2010. In its termination letter, Health Alliance informed her
36
Specifically, that policy provides:
4.5. On any occasion when the telecommuter cannot
access the computer network due to technical
problems, or the Designated Work Area is not
available, the telecommuter must promptly con-
tact his or her supervisor for direction and may be
required to report for work at the home office as
determined by the supervisor. Where reporting to
work is not practical, the telecommuter may be
required to take paid leave consistent with time
and attendance policies.
R.31-2 at 49.
37
R.31-3 at 70.
38
Id.
No. 13-3652 15
that it was removing her because of her continued tardiness
and failure to report accurately her work time. It detailed the
history of these issues as well as Ms. Taylor-Novotny’s
infractions since Health Alliance had issued her a final written
warning in late May. Additionally, Health Alliance stated that
it was terminating her for “Falsifying Departmental Docu-
ments” and “Poor Work Performance.”39 The termination letter
noted that an audit of Ms. Taylor-Novotny’s work phone
records suggested that she had falsified records of calls that
she claimed to have made to providers. It identified thirty-two
different calls that she had reported making between June 14
and July 26 that were not documented in her work phone
records.40 It also listed specific occasions when Ms. Taylor-
Novotny had falsified reporting logs about her work efforts.
During June and July 2010, she reported that she had updated
eight fee schedules for clients before she actually had com-
pleted her work. In two cases, she did not complete her work
until more than a month after her reported completion date.
With respect to her performance, Health Alliance noted that
Ms. Taylor-Novotny repeatedly had failed to meet interim
deadlines set by Fletcher for accomplishing the goal of securing
contracts with six hospital-based providers. Moreover, she had
failed to update paperwork designed to track her progress. The
termination letter also stated that there had been complaints
39
Id. at 10.
40
Ms. Taylor-Novotny claims that she made the calls from her personal cell
phone while working from home.
16 No. 13-3652
from providers and other employees concerning
Ms. Taylor-Novotny’s lack of responsiveness.41
After Ms. Taylor-Novotny’s employment was terminated,
her position was filled by Jared Fritz, a white male.
B. District Court Proceedings
Ms. Taylor-Novotny filed a five-count complaint against
Health Alliance in which she alleged that it had failed to
reasonably accommodate her multiple sclerosis and had
retaliated against her for seeking an accommodation, in
violation of the ADA; that it had interfered with her rights
under the FMLA; and that it had terminated her employment
on the basis of her race and disability, in violation of Title VII
and the ADA.
Following discovery, Health Alliance moved for summary
judgment on all counts, and the district court granted the
motion. Turning first to the ADA claims, the court noted that,
in order to prevail on any of those claims—disparate treatment,
failure-to-accommodate and retaliation—the plaintiff had to
establish that “she was a qualified individual who, with or
without reasonable accommodation, could perform the
essential functions of the employment position.”42 The court
concluded that Ms. Taylor-Novotny could not meet her
41
See id. at 11.
42
R.39 at 5.
No. 13-3652 17
burden.43 The district court additionally determined that
Ms. Taylor-Novotny’s requested accommodations were not
reasonable. With respect to her discrimination and retaliation
claims, the court held that, because she was not meeting her
employer’s legitimate expectations, she could not make out a
prima facie case. Turning to her FMLA claims, the court
concluded that Ms. Taylor-Novotny’s admission that she never
had been denied the opportunity to take FMLA leave was fatal
to her claim.
Ms. Taylor-Novotny timely appealed the district court’s
judgment.
II
DISCUSSION
We review the district court’s summary judgment order de
novo. Chaib v. Indiana, 744 F.3d 974, 981 (7th Cir.), cert. denied,
135 S. Ct. 159 (2014).44 Summary judgment is appropriate when
the admissible evidence shows that there is no genuine dispute
as to any material fact such that the moving party is entitled to
judgment as a matter of law. Bunn v. Khoury Enters., Inc., 753
F.3d 676, 681 (7th Cir. 2014). A material fact is one that affects
the outcome of the suit. Id. Summary judgment is inappropri-
ate when, based on the evidence in the record, a reasonable
jury could return a verdict for the nonmoving party. Id. at 682.
43
Id.
44
The district court had jurisdiction under 28 U.S.C. §§ 1331 & 1343. Our
jurisdiction over this appeal is secure under 28 U.S.C. § 1291.
18 No. 13-3652
“In determining whether a genuine issue of material fact exists,
we view the record in the light most favorable to the
nonmoving party.” Id.
A. ADA Discriminatory Discharge
We turn first to Ms. Taylor-Novotny’s claim that Health
Alliance terminated her employment on the basis of her
disability in violation of the ADA. The ADA prohibits employ-
ers from “discriminat[ing] against a qualified individual on the
basis of [her] disability in regard to … discharge … and other
terms, conditions, and privileges of employment.” 42 U.S.C.
§ 12112. “A plaintiff claiming disparate treatment in violation
of the ADA can rely on two different methods of proof to
survive a summary judgment motion.” Bunn, 753 F.3d at 683.
The first is the “direct method,” in which a plaintiff
must show that a genuine issue of material fact
exists with respect to each of the three elements he
will eventually be required to prove at trial: (1) that
the plaintiff is disabled within the meaning of the
ADA; (2) that the plaintiff is qualified to perform the
essential functions of the job with or without accom-
modation; and (3) that the plaintiff has suffered an
adverse employment action because of his disability.
Id. The second method is the “‘indirect method,’ originally
developed in the Title VII context by McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973).” Id. at 685 (parallel citations
omitted). According to this method, the employee first must
establish a prima facie case by showing that: (1) “the plaintiff
No. 13-3652 19
was a qualified individual with a disability” within the
meaning of the ADA, Timmons v. Gen. Motors Corp., 469 F.3d
1122, 1127 (7th Cir. 2006); (2) she was meeting her employer’s
legitimate expectations, see Bunn, 753 F.3d at 685; (3) she
nevertheless suffered an adverse employment action, see id.;
and (4) similarly situated, non-disabled employees were
treated more favorably,45 see id.
With respect to her disability discrimination claims,
Ms. Taylor-Novotny proceeds using only the indirect method.
We turn first, therefore, to whether Ms. Taylor-Novotny is
disabled under the ADA.
1.
Here the parties do not dispute that Ms. Taylor-Novotny’s
multiple sclerosis is a “disability” within the meaning of the
Act. See 42 U.S.C. § 12102(1) (defining “disability”). They do
dispute, however, whether Ms. Taylor-Novotny is a “qualified
individual” with a disability—“an individual who, with or
without reasonable accommodation, can perform the essential
functions of the employment position.” Id. § 12111(8).
Ms. Taylor-Novotny maintains that she has established that
she is a qualified individual with a disability. Claiming that
our case law establishes that “regular attendance is not an
45
We have observed that this fourth element may be satisfied by other
“circumstances [that] suggest that the plaintiff’s disability was the reason
the employer took [the] adverse action.” Timmons v. Gen. Motors Corp., 469
F.3d 1122, 1127–28 (7th Cir. 2006). Ms. Taylor-Novotny, however, relies only
on comparators to establish this element of her prima facie case.
20 No. 13-3652
essential function of every job,”46 she maintains that regular
attendance and punctuality were not essential functions of her
position. She points out that Health Alliance had a
work-from-home policy that allowed for flexible arrangements.
Consequently, her inability to come regularly to the Health
Alliance office did not establish that she could not perform the
essential functions of her job.
We cannot agree. Ms. Taylor-Novotny has not established
that regular attendance was not required of someone in her
position and the record certainly demonstrates that she could
not perform this essential function. We have said that
[a]n employer is generally permitted to treat regular
attendance as an essential job requirement and need
not accommodate erratic or unreliable attendance. A
plaintiff whose disability prevents her from coming
to work regularly cannot perform the essential
functions of her job, and thus cannot be a qualified
individual for ADA purposes.
Basden v. Prof’l Transp., Inc., 714 F.3d 1034, 1037 (7th Cir. 2013)
(citation omitted).47 Health Alliance’s willingness to allow
46
Appellant’s Br. 11 (citing Jovanovic v. In-Sink-Erator Div. of Emerson Elec.
Co., 201 F.3d 894, 900 (7th Cir. 2000)).
47
We have noted a few possible exceptions to this rule such as substitute
teachers, employees who perform “piecework,” and “[p]eople who work
for temporary help agencies.” EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943,
957 (7th Cir. 2001) (en banc) (Wood, J., dissenting in part and concurring in
part). Ms. Taylor-Novotny’s position does not fit into any of these catego-
ries.
No. 13-3652 21
employees to work at home, consistent with its “Work at
Home” policy, hardly establishes that punctuality and regular
attendance are not essential functions of her position. Indeed,
the work-at-home policy specifically required workers to
adhere to an agreed-upon work schedule, “to be accessible by
phone, e-mail, voice mail, pager, or modem” during that
schedule and to “attend staff meetings and applicable educa-
tional in-services” either by telephone or in person “as needed
by the organization.”48 Additionally, Health Alliance regularly
evaluated its employees on “Attendance and Punctuality.”49
Her failure to conform to these standards was the cause of her
employer’s displeasure.
The ADA provides that “consideration shall be given to the
employer’s judgment as to what functions of a job are essen-
tial.” 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(n). Health Alliance
considered it essential that, regardless whether an employee
was working from the Health Alliance office or from home, the
employee be accessible at regular times to supervisors, staff,
and customers. Ms. Taylor-Novotny has not identified any
evidence in the record that suggests otherwise.50 Additionally,
48
R.31-2 at 49.
49
See id. at 30, 36. In 2009, Health Alliance began using a new evaluation
tool that used the heading “Dependability, Compliance and Professional-
ism.” See id. at 59. Incorporated within this category was whether the
employee “[a]dhere[d] to the organizations’ policy on attendance and
tardiness.” Id.
50
Ms. Taylor-Novotny points to the job description for a Contract Specialist
I and notes that compliance with company policies, designated as the sixth
(continued...)
22 No. 13-3652
she has not pointed to evidence in the record that there was an
accommodation that would allow her to meet this requirement.
Indeed, the last word from Ms. Taylor-Novotny’s physician
was that she was suffering from “very poor energy and
stamina” and suggested a “flexible work schedule that would
allow her to work efficiently when she is doing well but then
allow rest periods when she is having a bad day.”51 Given this
evidence in the record, we cannot conclude that Ms. Taylor-
Novotny could satisfy the essential function of regular atten-
dance and, therefore, is not a qualified individual with a
disability entitled to protection under the ADA.
2.
Even assuming, however, that Ms. Taylor-Novotny is a
qualified individual with a disability within the meaning of the
Act, we cannot conclude that she has established the remainder
of her prima facie case. In order to establish a prima facie case
of disability discrimination, Ms. Taylor-Novotny also must
50
(...continued)
“Essential Function” of the position, “is written in standard boiler plate
language and applies to all employees—not just Contract Specialists.” Reply
Br. 17. She concludes that “this sixth essential job function is really not
essential only for that job and should not be listed as an essential job
function.” Id. Ms. Taylor-Novotny provides no authority for such an
approach, and, as we have set forth, the evidence in the record supports
Health Alliance’s assertion that it considered accountability in the area of
attendance and punctuality essential.
51
R.31-3 at 70.
No. 13-3652 23
establish that she was meeting Health Alliance’s legitimate
expectations.
Ms. Taylor-Novotny maintains that she established this
element because she received overall ratings on her perfor-
mance evaluations of “Average” or “Achieves Requirements.”
The record, however, is replete with evidence that Health
Alliance was not satisfied with Ms. Taylor-Novotny’s contin-
ued failures to arrive to work on time without notifying her
supervisor. Ms. Taylor-Novotny received a rating of “Mar-
ginal” for attendance and punctuality on her very first perfor-
mance evaluation. Her failure both to arrive at work on time
and to alert her supervisor in advance of late arrivals were
concerns articulated on every review Ms. Taylor-Novotny
received and in several disciplinary meetings. Her last evalua-
tion clearly informed her that she was not meeting Health
Alliance’s requirements in the area of “Dependability, Compli-
ance and Professionalism.”52 The review identified problems
with “tardiness and notification of late arrivals” and reiterated
that she was “currently under Disciplinary Action for failure
to notify of tardiness and FML tracking.”53 It instructed that
Ms. Taylor-Novotny had to “[i]mprove notification and
tracking of late start times” and “[p]rovide advance notice of
and reason for late start times and early departures,” effective
immediately.54 There is no question that, even if the other
aspects of Ms. Taylor-Novotny’s work performance were
52
R.31-2 at 72–73.
53
Id. at 73.
54
Id.
24 No. 13-3652
adequate, she was not meeting Health Alliance’s legitimate
expectations that she arrive at work on time and, when she was
not able to, that she notify her supervisor in advance of the
delay.
Moreover, upon examination of the reports that she did
make, the company concluded that it could not trust the
accuracy of the reports that she was making. In its letter
terminating Ms. Taylor-Novotny’s employment, Health
Alliance noted four occasions since her final written warning
when she failed to report her time accurately, both on days that
she reported to work and on days that she worked from
home.55 There were also significant inaccuracies in Ms. Taylor-
Novotny’s “Contract Negotiation Tracking Sheet”: The report
indicated that she had made thirty-two calls to providers;
however an audit of her work telephone records indicated that
the calls were not made.56 Finally, Ms. Taylor-Novotny
repeatedly had failed to meet interim deadlines set by her
supervisor in order to complete contracts with hospital-based
providers by year end.57 In sum, Ms. Taylor-Novotny not only
failed to meet Health Alliance’s expectations on punctuality
and accountability, but she had serious difficulties accurately
accounting for her time, accurately reporting her work activi-
55
See R.31-3 at 9.
56
Id. at 10.
57
See id. at 10–11.
No. 13-3652 25
ties, and meeting deadlines. On this record, Health Alliance’s
legitimate expectations clearly were not met.58
3.
Ms. Taylor-Novotny submits, however, that even if her
tardiness and her lack of communication with her supervisor
were serious shortcomings in her performance, those short-
comings were shared by at least one comparable employee,
Heather Wantland-Welch, whose employment was not
terminated. “When a plaintiff produces evidence sufficient to
raise an inference that the employer applied its legitimate
expectations in a disparate manner, the second and fourth
prongs of McDonnell Douglas merge, allowing the plaintiff to
establish a prima facie case by establishing that similarly
situated employees were treated more favorably.” Grayson v.
O’Neill, 308 F.3d 808, 818 (7th Cir. 2002). “To meet his burden
of demonstrating that another employee is ‘similarly situated,’
a plaintiff must demonstrate that there is someone who is
directly comparable to him in all material respects.” Id. at 819.
Ms. Taylor-Novotny submits that Wantland-Welch is
comparable because they both held the same job title, they
“were hired at approximately the same time, performed the
58
Our conclusion on this element also forecloses Ms. Taylor-Novotny’s
claim that her employment was terminated on the basis of her race. As with
an ADA discrimination claim, in order to establish a prima facie case of
racial discrimination under the indirect method, Ms. Taylor-Novotny must
establish that she was meeting her employer’s legitimate expectations. See,
e.g., Naficy v. Illinois Dep’t of Human Servs., 697 F.3d 504, 511 (7th Cir. 2012).
Because she cannot meet this burden, her race claim also fails.
26 No. 13-3652
same type of tasks, … worked in the same department,” and
“had Jeff Polk as their department manager.”59 Additionally,
Ms. Taylor-Novotny submits, they were treated inconsistently
because “Wantland-Welch … had numerous tardies, yet, …
received no disciplinary actions”; indeed, she notes, Wantland-
Welch was also “allowed to ‘make-up’ time taken as FMLA
leave.”60
We do not believe that Ms. Taylor-Novotny has met her
burden of establishing that she and Wantland-Welch were
similarly situated. We note initially that, although Ms. Taylor-
Novotny asserts that Wantland-Welch was not disciplined and
was “allowed” to make up work, the record does not bear this
out. Wantland-Welch testified that she was “written up” for
“[b]eing late” and was not given “the opportunity to make up
missed hours.”61
Moreover,“[w]e have cautioned that, in order to show that
a coworker is similarly situated to a terminated employee, the
employee must show that the other coworker had a compara-
ble set of failings.” Burks v. Wisconsin Dep’t of Transp., 464 F.3d
744, 751 (7th Cir. 2006) (internal quotation marks omitted). The
record establishes that Wantland-Welch’s problem with tardies
began in 2010, and, during the first seven months of the year,
59
Appellant’s Br. 14.
60
Id. at 15.
61
R.32-2 at 6, 4 (Wantland-Welch Dep. 23, 21). Wantland-Welch did state
that she had been required to work additional hours at the office “to make
up for time that [she] was out of the office for FMLA.” Id. at 4 (Wantland-
Welch Dep. 21).
No. 13-3652 27
she was tardy forty-nine times.62 However, Ms. Taylor-
Novotny does not point to any evidence in the record that,
prior to 2010, Wantland-Welch had any difficulties with
punctuality. Furthermore, Wantland-Welch, unlike Ms. Taylor-
Novotny did not “fail[] to call in.”63 Wantland-Welch, there-
fore, did not have Ms. Taylor-Novotny’s history of poor
punctuality, nor did she share Ms. Taylor-Novotny’s lack of
accountability. Consequently, she is not comparable to
Ms. Taylor-Novotny for purposes of disciplinary action.
Ms. Taylor-Novotny has not met her burden of establishing
that she is disabled, that she was meeting Health Alliance’s
legitimate expectations or that other, similarly situated
employees were treated more favorably than she was treated.
The district court, therefore, correctly granted summary
judgment to Health Alliance on Ms. Taylor-Novotny’s discrim-
inatory discharge claims.
B. ADA Failure to Accommodate
We turn now to Ms. Taylor-Novotny’s claim that Health
Alliance failed to accommodate her multiple sclerosis. The
ADA requires employers to make reasonable accommodations
for a qualified individual with a disability. 42 U.S.C.
§ 12112(b)(5)(A); see also id. § 12111(9) (giving examples of
“reasonable accommodation[s]”). As noted previously, an
employee is a qualified individual with a disability if, “with or
62
See R.33-2.
63
R.32-2 at 2 (Wantland-Welch Dep. 19).
28 No. 13-3652
without reasonable accommodation, [she] can perform the
essential functions of the [job].” Id. § 12111(8); see also Majors v.
Gen. Elec. Co., 714 F.3d 527, 533 (7th Cir. 2013).
Ms. Taylor-Novotny bears the initial burden of establishing
that she was a qualified individual who could perform the
essential functions of her position. Majors, 714 F.3d at 534. Once
she has shown that she is a qualified individual with a disabil-
ity, she then must show that her employer was aware of her
disability but failed to afford her a reasonable accommodation.
Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001).
Assuming that Ms. Taylor-Novotny is a qualified individ-
ual with a disability under the ADA,64 we examine whether
Health Alliance reasonably accommodated her multiple
sclerosis. Ms. Taylor-Novotny must make an initial showing
that the accommodation she sought was “reasonable on its
face.” Majors, 714 F.3d at 535 (internal quotation marks
omitted). If she makes that showing, Health Alliance has the
burden to establish that the accommodation would have
created an undue hardship on its business. Id.
The record establishes that Health Alliance made good-
faith efforts to accommodate Ms. Taylor-Novotny’s multiple
sclerosis: It sought information from her physician about her
needs; it participated in the interactive process; and it made
several adjustments to Ms. Taylor-Novotny’s physical sur-
roundings. Indeed, Ms. Taylor-Novotny identifies only one
other accommodation—using her badge scans to report her
64
For the reasons stated in Part II.A.1., we do not believe that Ms. Taylor-
Novotny has met this burden.
No. 13-3652 29
arrival times—which, she claims, was reasonable, but that
Health Alliance refused.
Health Alliance’s refusal to accept this accommodation did
not violate the ADA for one basic reason: Ms. Taylor-Novotny
never identified any limitation related to her disability that this
accommodation would alleviate. Ms. Taylor-Novotny, as well
as her physician, stated that she was suffering from fatigue
related to her multiple sclerosis. As there was no physical
exertion attendant to calling Fletcher to alert her to an antici-
pated late arrival, she does not explain how the use of her
badge scans would alleviate her illness-related fatigue.
Ms. Taylor-Novotny claims, however, that, in addition to
her physical fatigue, she was suffering problems with “her
memory and mental fatigue,” which made her unable to
comply with Health Alliance’s reporting requirement.65
Ms. Taylor-Novotny has pointed to no evidence in the record
that establishes that she was suffering from memory loss, that
she was experiencing mental fatigue, or that she communi-
cated these limitations to Health Alliance. Her counsel ac-
knowledged an absence of evidence on this point at oral
argument. Ms. Taylor-Novotny nevertheless maintains that,
because Health Alliance “deals in matters in the health and
health insurance industry” and because another subsidiary of
its parent company is a direct provider of health care services,
Health Alliance either should have known that mental fatigue
was attendant to multiple sclerosis or, at the very least, “ha[d]
65
Reply Br. 16.
30 No. 13-3652
the capabilities to understand the symptoms of [multiple
sclerosis].”66
We cannot reconcile the approach suggested by
Ms. Taylor-Novotny with the language of the statute or our
interpretive case law. We have held that “[t]he language of the
ADA itself demonstrates that a reasonable accommodation is
connected to what the employer knows about the specific limita-
tions affecting an employee who is a qualified individual with
a disability.” Jackson v. City of Chicago, 414 F.3d 806, 813 (7th
Cir. 2005) (emphasis added). Moreover, we have explained that
“[s]ome impairments may be disabling for
particular individuals but not for others, de-
pending on the stage of the disease or the disor-
der, the presence of other impairments that
combine to make the impairment disabling or
any number of other factors.” 29 C.F.R. 1630.2(j),
App. (1995). Thus, while a given disability may
limit one employee (and therefore necessitate a
reasonable accommodation), it may not limit
another. For this reason, the ADA does not
require an employer to assume that an employee
with a disability suffers from a limitation. In
fact, better public policy dictates the opposite
presumption: that disabled employees are not
limited in their abilities to adequately perform
their jobs.
66
Id. at 15.
No. 13-3652 31
Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894,
898 (7th Cir. 2000) (quoting Taylor v. Principal Fin. Grp., Inc., 93
F.3d 155, 164–65 (5th Cir. 1996)). Here, Ms. Taylor-Novotny
provided Health Alliance with no evidence that her multiple
sclerosis was affecting her ability to remember or causing her
mental fatigue. On the record before us, therefore, Ms. Taylor-
Novotny’s request to use her badge scans was not a reasonable
accommodation of her multiple sclerosis.67
C. ADA Retaliation
Ms. Taylor-Novotny also maintains that Health Alliance
violated the ADA by terminating her employment in retalia-
tion for her request for accommodation. See 42 U.S.C.
§ 12203(a). Although retaliation may be shown either through
the direct method or the indirect method, Dickerson v. Bd. of
Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011),
Ms. Taylor-Novotny proceeds only under the direct method of
proof. Under that method, an employee must show that
“(1) she engaged in statutorily protected activity; (2) she
suffered an adverse action; and (3) there is a causal connection
between the two.” Cloe v. City of Indianapolis, 712 F.3d 1171,
1180 (7th Cir. 2013). Both parties agree that
Ms. Taylor-Novotny engaged in protected activity by request-
67
We also note that the badge scans only recorded the time Ms. Taylor-
Novotny arrived, but did not provide an explanation for any late arrival.
Consequently, use of the badge scans would not have satisfied Health
Alliance’s need to have Ms. Taylor-Novotny account for her tardiness and
to designate whether it fell within her FMLA leave.
32 No. 13-3652
ing ADA accommodations and that she suffered an adverse
employment action through termination.68
To show causation under the direct method, an employee
must show that her protected activity was a “substantial or
motivating factor” behind the adverse employment action. Id.
She can do so by presenting either a direct admission of a
retaliatory motive or a “convincing mosaic” of circumstantial
evidence supporting an inference that a retaliatory animus was
at work. Id. (internal quotation marks omitted). Our case law
has identified three general categories of circumstantial
evidence: (1) “suspicious timing, ambiguous statements oral or
written, and other bits and pieces from which an inference of
retaliatory intent might be drawn”; (2) “evidence, but not
necessarily rigorous statistical evidence, that similarly situated
employees were treated differently”; and (3) “evidence that the
employer offered a pretextual reason for an adverse employ-
ment action.” Id. Ms. Taylor-Novotny focuses on the first
category—suspicious timing and ambiguous statements.
68
Ms. Taylor-Novotny also argues that she suffered an adverse action by
being denied a pay increase in 2010 because she was under discipline at the
time. Appellant’s Br. 18. Ms. Taylor-Novotny’s claim is not supported by
argument, evidence, or relevant authorities. It is, therefore, waived. See, e.g.,
Argyropoulos v. City of Alton, 539 F.3d 724, 738 (7th Cir. 2008) (“This
argument is perfunctory and undeveloped, and is therefore waived.”). Even
if we were to consider the claim on the merits, however, it fails because, as
explained in this section, there is no evidence that such an action was
retaliatory.
No. 13-3652 33
1.
Ms. Taylor-Novotny submits that it is suspicious that, after
years of documented tardiness, Health Alliance first issued
verbal and written warnings in March 2010, around the time
that she officially requested ADA accommodations for her
multiple sclerosis. According to Ms. Taylor-Novotny, “if
tardiness and reporting of tardiness was such a major issue …,
then disciplinary actions against [her] should have commenced
long before March 19 & 30, 2010.”69
The record does not support this contention.
Ms. Taylor-Novotny was disciplined as early as October 2007 for
her tardiness.70 At that point, a “Corrective Action Plan” was
implemented that included Ms. Taylor-Novotny checking in
69
Appellant’s Br. 19.
70
Ms. Taylor-Novotny also maintains that Health Alliance failed to follow
its own policy on progressive discipline because her “‘verbal warning’ and
‘written warning’ were premature (i.e., prior to any attendance policy for
Exempt employees).” Id. at 21. It is true that when Health Alliance verbally
counseled Ms. Taylor-Novotny and later issued a written warning, it had
not yet implemented a formal attendance policy for exempt employees.
Because that policy did not exist, there could be no deviations from that
policy that might raise an inference of discriminatory or retaliatory intent.
Cf. Hanners v. Trent, 674 F.3d 683, 694 (7th Cir. 2012) (“Significant, unex-
plained or systematic deviations from established policies or practices can
no doubt be relative and probative circumstantial evidence of discrimina-
tory intent.”). Moreover, the progressive approach of Health Alliance’s
discipline was consistent both with the Corrective Action Plan that it
previously had outlined for Ms. Taylor-Novotny and was consistent with
the approach set forth in its formal attendance policy adopted in April 2010.
See supra pp. 4, 10.
34 No. 13-3652
with her supervisor every time she was late.71 As well, her
personnel file establishes that she had been notified at each of
her performance reviews about the company’s dissatisfaction
with her tardiness and accountability.
More importantly, however, suspicious timing must be
evaluated in the context of the whole record. See Buie v.
Quad/Graphics, Inc., 366 F.3d 496, 507 (7th Cir. 2004) (conclud-
ing that suspicious timing of employee’s termination did not
create an issue of fact because “the undisputed evidence shows
that he was on the brink of discharge before anyone at [his
employer] knew that he had AIDS”). Standing alone, it “rarely
is sufficient to create a triable issue.” Andonissamy v.
Hewlett-Packard Co., 547 F.3d 841, 851 (7th Cir. 2008) (internal
quotation marks omitted). The record here establishes that this
is not such a “rare[]” case. Id. (internal quotation marks
omitted).
Although the interactive process for accommodations
officially began in March 2010, Health Alliance had been aware
of Ms. Taylor-Novotny’s multiple sclerosis since at least May
2008, when she submitted an FMLA certification and request.
During the next two years, Health Alliance approved FMLA
time to be used as needed, adjusted her schedule, and ap-
proved a work-from-home schedule—all in an effort to assist
Ms. Taylor-Novotny in addressing the effects of her condition.
Moreover, once the ADA interactive process began, Health
Alliance accommodated Ms. Taylor-Novotny’s condition in
71
See supra p. 4 (citing R.31-2 at 33).
No. 13-3652 35
numerous ways that helped alleviate the fatigue attendant to
her multiple sclerosis.
Finally, the record establishes that Health Alliance’s
concern with Ms. Taylor-Novotny’s punctuality and account-
ability predates her request for reasonable accommodation by
several years. Prior to Ms. Taylor-Novotny’s request for
reasonable accommodation, she was warned numerous times
that her accountability for her tardies was substandard. We
have recognized that a case based on suspicious timing is
particularly weak where a plaintiff’s protected activity follows
“a performance warning for the very same conduct that
ultimately led to h[er] termination.” Id.
2.
Ms. Taylor-Novotny maintains that, although suspicious
timing is the main thrust of her retaliation claim, there is
substantiating evidence of discriminatory animus in emails
that Health Alliance staff exchanged in March 2010.72 These
emails document a suggestion on March 18, 2010, from
Swearingen, Vice President of Employee Relations, that Health
Alliance should obtain a “second opinion in regards to [Ms.
Taylor-Novotny’s] restrictions.”73 According to the email, Ms.
72
Health Alliance contends that the emails are inadmissible because they
were not authenticated and they are hearsay. Appellee’s Br. 29. Even if the
emails are considered, however, Ms. Taylor-Novotny lacks sufficient
evidence of retaliation.
73
R.32-4 at 1.
36 No. 13-3652
Taylor-Novotny’s supervisors felt she was “getting whatever
she asks for from her physician” and were “fustrat[ed]” due to
“her lack of communication in regards to her FMLA” and the
“feel[ing] that she is taking advantage of the situation.”74
This email, while perhaps suggestive of irritation or doubt
about Ms. Taylor-Novotny’s medical needs, cannot support a
claim of retaliation when it is evaluated in context. The focus
of the email is Ms. Taylor-Novotny’s need for, and possible
abuse of, FMLA leave. This is a reasonable business concern of
an employer, one that the FMLA itself acknowledges and
accommodates. Section 2613(c)(1) of Title 29 provides:
In any case in which the employer has a reason to
doubt the validity of the certification … for leave …,
the employer may require, at the expense of the
employer, that the eligible employee obtain the
opinion of a second health care provider designated
or approved by the employer concerning any infor-
mation certified … for such leave.
Here, the employer, faced with accountability problems,
simply discussed whether it ought to exercise a statutory right
under the FMLA and seek verification that the request for
leave was legitimate.75
74
Id.
75
Ms. Taylor-Novotny also points to an email by Swearingen in which she
states, “Well, this is the first time that Kiersten has mentioned the ADA, so
I imagine she is getting some guidance.” Appellant’s Br. 20 (internal
quotation marks omitted) (quoting R.32-14). Ms. Taylor-Novotny does not
(continued...)
No. 13-3652 37
3.
Finally, Ms. Taylor-Novotny contends that she was not
informed of all of her work performance problems before she
received her termination notice and that this failure on the part
of the company is evidence of Health Alliance’s retaliatory
motive. The record does not support this argument.
Health Alliance’s letter terminating Ms. Taylor-Novotny’s
employment listed her poor work performance as one of the
bases for her termination and specifically set forth her failure
to achieve interim goals for identifying and contacting
75
(...continued)
explain the significance of this statement, and we perceive none. Indeed,
placed in context, it appears to be an indication that Health Alliance needed
to continue to consider seriously Ms. Taylor-Novotny’s requests; the email
reads:
Well, this is the first time that Kiersten has mentioned the
ADA, so I imagine she is getting some guidance. From this
note it appears that she is asking for 9:00 on the days she’s
at home. When we last spoke she asked for all days to start
at 9:00 am. Kim, my understanding is that we are waiting
for additional feedback from the physician before respond-
ing to a request for a change in hours. Did you have a
chance to meet with her on Friday?
I hate to bow out just as this is coming to a head, but [I] do
think that this needs to be handled within the HR depart-
ment with people that will be working through this long
term. I’ll let Kiersten know that I am forwarding her
request to Kim and that she will follow up with her.
R.32-14.
38 No. 13-3652
hospital-based providers. Ms. Taylor-Novotny’s deposition
testimony makes clear that she was aware of both of these
interim goals. She was asked if she recalled discussions with
Fletcher concerning identifying hospital-based providers “as
an independent goal to further the overall goal of negotiating
six contracts for 2010”; Ms. Taylor-Novotny responded,
“Yes.”76 She also testified to informing Fletcher that she
“wouldn’t be able to meet … deadlines” related to mailing
contracts, which she acknowledged “[w]as the next step … in
the contracting process.”77
In sum, the record does not support a determination that
Ms. Taylor-Novotny’s termination was retaliatory. An exami-
nation of the evidence yields no basis for the inferences that
Ms. Taylor-Novotny would ask a jury to draw.78
D. FMLA Interference Claim
We next consider Ms. Taylor-Novotny’s claim that Health
Alliance interfered with her FMLA leave. The district court
granted summary judgment for Health Alliance because, in its
view, her admission that Health Alliance never had denied her
76
R.31-1 at 35 (Taylor-Novotny Dep. at 130–31).
77
Id. at 35–36 (Taylor-Novotny Dep. at 132–33).
78
Ms. Taylor-Novotny dedicates one sentence in her opening brief to her
FMLA retaliation claim. As it is undeveloped and unsupported by
authority, it is waived. See, e.g., Argyropoulos, 539 F.3d at 738. We note,
however, that the reasons that make Ms. Taylor-Novotny’s ADA retaliation
claim untenable apply with equal force to her FMLA retaliation claim.
No. 13-3652 39
the opportunity to take FMLA leave was “fatal to her claim.”79
We agree.
The FMLA requires employers to allow employees to take
up to twelve weeks of unpaid leave for serious health condi-
tions during any twelve-month period. 29 U.S.C. § 2612(a)(l).
Employers may not interfere with an employee’s rights under
the FMLA or discriminate against employees who need FMLA
leave. Id. § 2615. “To prevail on an FMLA interference claim, an
employee must show that her employer deprived her of an
FMLA entitlement.” Ridings v. Riverside Med. Ctr., 537 F.3d 755,
761 (7th Cir. 2008). Specifically, the “employee must establish
that: (1) she was eligible for the FMLA’s protections; (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 leave; and (5) her employer denied her FMLA
benefits to which she was entitled.” Id.
Ms. Taylor-Novotny maintains that Health Alliance
interfered with her FMLA leave because it denied her request
to limit her office time to two one-half days per week. She
claims that, if she were “only running 30 minutes late on one
of those mornings,” then she should only have to use “½ hour
of FMLA time and only use ½ hour of pay, instead of four
hours of FMLA time and four hours of pay.”80
In order to make out an interference claim,
Ms. Taylor-Novotny had to show that she made a request
79
R.39 at 8.
80
Appellant’s Br. 22.
40 No. 13-3652
under the FMLA and that Health Alliance denied that request.
During the 2010 recertification process for Ms. Taylor-
Novotny’s FMLA leave, her physician recommended that
Ms. Taylor-Novotny’s office time be limited to two half-days
per week. Consistent with her physician’s suggestion, Health
Alliance approved FMLA leave for the two half-days when she
would not be in the office.
Ms. Taylor-Novotny, however, declined to use her FMLA
leave for the two half-days. Instead, Ms. Taylor-Novotny
sought to alter her basic work-at-home arrangement so that she
could work from home three full days and two half-days and
be compensated for all of that time. Ms. Taylor-Novotny’s
request for this arrangement, therefore, was not a request
under the FMLA, which requires employers only to provide up
to twelve weeks of unpaid leave. Consequently, when Health
Alliance denied that request, it did not deny Ms. Taylor-
Novotny any right under the FMLA.
Ms. Taylor-Novotny also appears to contend that the result
of Health Alliance’s denial of her request to alter her work-at-
home schedule was that she would be forced to take four hours
of FMLA leave every time she was late only by one-half hour.
If Health Alliance had reduced her FMLA leave by half-day
increments every time she was late by just a few minutes, she
might have been able to make out an interference claim. But
there is simply no evidence in the record, however, that such
a leave deduction ever occurred. On multiple occasions, Health
Alliance had approved “intermittent time off as needed to
No. 13-3652 41
manage [her] condition as specified by [her] physician.”81
Health Alliance noted, however, that it was Ms. Taylor-
Novotny’s “responsibility to let [her] manager know each time an
absence from work will be necessary, as well as whether or not [her]
absence should be charged to this approved Family Leave.”82 Health
Alliance’s approach to Ms. Taylor-Novotny’s tardies never
changed.83 All Ms. Taylor-Novotny had to do was to inform
her supervisor both that she was running late and that her
delay was due to her condition. If that occurred,
Ms. Taylor-Novotny’s tardy would be excused, and only that
amount of time that Ms. Taylor-Novotny actually was late
would be deducted from her FMLA balance.
Finally, Ms. Taylor-Novotny claims that Health Alliance
interfered with her FMLA rights by not permitting her to use
her badge scans to report her work hours. As we noted
previously, the badge scans only recorded the time of entry,
not the reason for Ms. Taylor-Novotny’s late arrival. Conse-
quently, the badge scans could not provide Health Alliance
with the information that it needed to determine whether
Ms. Taylor-Novotny’s tardiness should be charged as FMLA
leave. More importantly, however, this requirement did not
deny Ms. Taylor-Novotny any right provided in the FMLA.
Therefore, it cannot be the basis for an interference claim.
81
R.31-3 at 31.
82
Id. (emphasis in original).
83
See R.31-2 at 66 (Swearingen memo) (noting that late arrivals attributable
to Ms. Taylor-Novotny’s multiple sclerosis would be treated as FMLA);
R.31-3 at 48–49 (approval of recertification).
42 No. 13-3652
Conclusion
The judgment of the district court is affirmed. The defen-
dant may recover its costs in this court.
AFFIRMED