Andonissamy, Sanjay v. Hewlett Packard ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-2387 & 07-2390
S ANJAY A NDONISSAMY,
Plaintiff-Appellant,
v.
H EWLETT-P ACKARD C OMPANY,
Q WEST C OMMUNICATIONS
AND K EN S MITH,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 04 C 2521 & 05 C 3080—William J. Hibbler, Judge.
A RGUED S EPTEMBER 9, 2008—D ECIDED N OVEMBER 7, 2008
Before F LAUM, W ILLIAMS, S YKES, Circuit Judges.
F LAUM, Circuit Judge. Sanjay Andonissamy worked as
technician for Hewlett-Packard, assigned to the Qwest
Cyber Center in Chicago, Illinois, from April 2001 to
June 2003. He brought an employment discrimination
suit against Hewlett-Packard in the Northern District of
Illinois after his termination, alleging that Hewlett-Packard
2 Nos. 07-2387 & 07-2390
created a hostile work environment in violation of
Title VII, retaliated against him for reporting the hostile
work environment to his superiors, and denied him
medical leave in violation of the Family and Medical Leave
Act. Andonissamy also sued Qwest for violating his
rights under 42 U.S.C. § 1981, and sued Ken Smith, his
former supervisor, for assault under Illinois law. The
district court dismissed Andonissamy’s assault claim
after Smith filed a motion to dismiss because the statute
of limitations had lapsed, and the remainder of
Andomissamy’s suit upon the defendants’ motion for
summary judgment. Andonissamy appeals on the
Title VII claims, the § 1981 claim, the Family and Medical
Leave Act claim, and the dismissal of the assault claim.
For the following reasons, we affirm the district court’s
grant of the motion for summary judgment and the
motion to dismiss.
I. Background
Sanjay Andonissam y began w orking for
Hewlett-Packard in April 2001, as a systems engineer
assigned to the Qwest Cyber Center in Chicago.
Andonissamy is a citizen of France of Indian ethnicity, and
his employment was based on Hewlett-Packard’s sponsor-
ship of his H-1B visa. Classified as a TSG-2 technician,
Andonissamy’s primary responsibilities included pro-
viding technical support to Qwest data centers and to
Qwest customers.
Andonissamy and Hewlett-Packard offer divergent
accounts of Andonnissamy’s tenure with the company.
Nos. 07-2387 & 07-2390 3
Andonissamy alleges that, in the wake of September 11,
2001, Smith created a hostile work environment by direct-
ing numerous racist comments at Andonissamy, and
that he was placed on remedial performance plans either
as retaliation for his complaints to human resources about
his work environment, or because of his supervisor’s
personal animus towards him. Hewlett-Packard, on the
other hand, alleges that Andonissamy was an abusive
and unprofessional co-worker who was terminated after
the company gave him numerous warnings about his
insubordination and disrespectful comments.
Andonissamy’s employment discrimination suit is
based on a series of comments from Smith. First,
Andonissamy claims that sometime after September 11,
Smith said in conversation with Andonissamy that, “All
of Asia should be smashed,” and used his hands in a
way that indicated that he meant South Asia specifically;
second, that Smith told Andonissamy that people like
him should be hanged from trees as African-Americans
had been hanged; third, that people out of college in the
United States were unable to find jobs because people
like Andonissamy had taken them; fourth, that jobs
should be reserved for Americans; fifth, that no matter
how much Andonissamy worked he would never be
like his co-workers; sixth, that Smith claimed when review-
ing resumes that he would look for resumes with
American-sounding names. Andonissamy also claims
that he was involved in a fight with two co-workers
who called Andonissamy an “Indian racist bastard” and
who then spoke with Smith after the fight ended.
4 Nos. 07-2387 & 07-2390
Andonissamy claims that he expressed his frustration
with Smith several times during his tenure with
Hewlett-Packard. He sent complaints to Russell Lewis,
Smith’s supervisor, in October 2002, April 2003, and
May 2003. Andonissamy alleges that in October 2002
and May 2003, he was issued performance warnings
after complaining to Lewis. Andonissamy finally claims
that in May 2003, he was suspended after Smith made
a false report to human resources that Andonissamy
had said “We will all have a big surprise,” a report that
Andonissamy claims was designed to make him look like
a security threat. Human resources then conducted an
investigation into the remark, which Andonissamy
claims led to his firing on June 23, 2003.
Andonissamy bases his Family and Medical Leave Act
claim on his treatment for depression and anxiety, which
began at some point in 2002 and lasted until the end of
his employment with Hewlett-Packard in 2003. Smith
learned in late 2002 that Andonissamy took medication.
Andonissamy claims that his condition worsened after
the death of his brother and nephew in March 2003 and
April 2003, respectively, and that he was not given leave
to attend their funerals. He also missed work on two
occasions due to illness in May 2003. While Andonissamy
was taking medicine for depression from 2002 to 2003,
his treating physician examined him on four separate
occasions and did not place any restrictions on his daily
activities or work. Nor did his physician diagnose
Andonissamy with clinical depression.
Hewlett-Packard offers a different version of events. In
January 2002, Andonissamy’s supervisor, Ken Smith, gave
Nos. 07-2387 & 07-2390 5
him his first performance review. While Smith found
that Andonissamy’s technical skills were strong, he also
noted that Andonissamy could improve his relationships
with co-workers and customers. A few months after the
first performance review, several of Andonissamy’s
colleagues complained that Andonissamy had treated
them rudely, and Smith informed him of those charges
in an e-mail. Another complaint, that Andonissamy had
been rude to a Qwest employee in an e-mail, followed
shortly thereafter. In October 2002, Smith placed
Andonissamy on a performance plan to monitor his
work for forty-five days, after a customer of the Qwest
Cyber Center had network outages that were partly
attributed to Andonissamy.
Hewlett-Packard’s concerns about Andonissamy’s
performance grew. In 2002, Andonissamy refused to train
a co-worker to serve as his back-up, despite repeated
requests from Smith that he do so. On March 28, 2003,
Smith contacted Lewis about an argument he had with
Andonissamy when the latter refused to attend an installa-
tion for a customer. On March 31, 2003, Carol
Dixon-Woolfolk, an employee of Hewlett-Packard’s
human resources department, began investigating
Andonissamy’s performance issues. During her investiga-
tion, Dixon-Woolfolk interviewed Andonissamy’s
co-workers, who reported that Smith frequently bore
the brunt of Andonissamy’s abusive yelling. Those same
co-workers testified that Andonissamy screamed at
them and talked down to them, sent condescending
e-mails to Qwest employees, and failed to meet deadlines
or follow instructions.
6 Nos. 07-2387 & 07-2390
On April 16, 2003, Dixon-Woolfolk recommended that
Hewlett-Packard issue Andonissamy a performance
warning. Smith issued this warning on May 5, 2003,
although Andonissamy refused to sign it. The warning
listed the five most recent examples of insubordination and
inappropriate conduct, including two incidents that had
caused a Qwest employee to complain to Smith.
Andonissamy, in response to the warning, then sent an
e-mail to Lewis and Dixon-Woolfolk complaining about
Smith. After the warning, Andonissamy continued to
submit work late, missed scheduled installations, and
refused to train a back-up.
In June 2003, in response to the concerns of Qwest
employees about Andonissamy’s behavior, Qwest refused
to authorize Andonissamy’s return to the Cyber Center.
Lewis then decided to terminate Andonissamy’s em-
ployment, which he did on June 23, 2003.
On September 16, 2003, Andonissamy filed a complaint
with the Equal Employment Opportunity Commission
for national origin discrimination against Hewlett-
Packard. While his complaint contained many of the claims
he makes in the present lawsuit, it apparently did not
include the allegations that Smith had said Indians
should be “hung from trees,” or that after September 11
all of South Asia should be wiped out. On January 12,
2004, the EEOC dismissed the complaint and issued
Andonissamy a right to sue letter.
On April 7, 2004, Andonissamy filed a complaint against
Hewlett-Packard, adding a Family and Medical Leave Act
complaint on May 23, 2005, and eventually joining both
Nos. 07-2387 & 07-2390 7
Qwest and Smith to the complaint. On November 10, 2005,
Andonissamy also asserted a cause of action against Smith
for assault under Illinois law; on May 18, 2006, the district
court granted Smith’s motion to dismiss this claim. The
district court granted summ ary judgm en t for
Hewlett-Packard, Qwest, and Smith on May 30, 2007,
and Andonissamy now appeals.
II. Discussion
This court reviews a district court’s grant of sum-
mary judgment de novo, construing all facts and
drawing all reasonable inferences based on those facts
in the light most favorable to the non-moving party.
Telemark Development Group, Inc. v. Mengelt, 313 F.3d 972,
976 (7th Cir. 2002). Summary judgment is appropriate “if
the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Review of a district court’s grant of a motion to dismiss
is de novo. Witzke v. Femal, 376 F.3d 744 (7th Cir. 2004).
When ruling on a motion to dismiss under Rule 12(b)(6),
the court accepts all well-pleaded allegations as true
and draws all reasonable inferences in favor of the plain-
tiff. Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996). A
statute of limitations defense, while not normally part
of a motion under Rule 12(b)(6), is appropriate where
“the allegations of the complaint itself set forth every-
thing necessary to satisfy the affirmative defense, such as
when a complaint plainly reveals that an action is
8 Nos. 07-2387 & 07-2390
untimely under the governing statute of limitations.”
United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005).
A. The Title VII and 42 U.S.C. § 1981 claims.
1. Title VII claim.
The first issue is whether the district court properly
granted summary judgment to Hewlett-Packard on
Andonissamy’s hostile work environment claim. “To
survive summary judgment on a hostile work environ-
ment claim based on national origin, a plaintiff must
establish that: (1) he was subjected to unwelcome harass-
ment, (2) the harassment was based on his national
origin, (3) the harassment was severe and pervasive
enough to alter the conditions of his environment and
create a hostile and abusive working environment, and
(4) there is a basis for employer liability.” Velez v. City of
Chicago, 442 F.3d 1043, 1047 (7th Cir. 2006). “Title VII
protects a worker against conduct which is sufficiently
severe or pervasive that a reasonable person would find
it hostile and which the victim himself subjectively sees
as abusive.” Ngeunjuntr v. Metropolitan Life Ins. Co., 146
F.3d 464 (7th Cir. 1998) (citing Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993)).
Courts examine a variety of factors when evaluating
whether a workplace is hostile, including the frequency
of the supposed discriminatory conduct; the severity of it;
whether the conduct is physically threatening or humiliat-
ing or a mere offensive utterance; and whether it unrea-
sonably interferes with an employee’s job performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Nos. 07-2387 & 07-2390 9
The district court rejected Andonissamy’s hostile work
environment claim because it determined that, even
assuming Smith had made every comment attributed to
him, the comments were insufficient as a matter of law to
support a claim for national origin discrimination, and,
second, because Andonissamy had not demonstrated
a basis for employer liability. Andonissamy argues on
appeal that there is sufficient evidence for a jury to
find that he was subjected to a hostile work environment.
He lists once again Smith’s alleged remarks, and argues
that they demonstrate an objectively hostile atmosphere
based on his national origin. Hewlett-Packard responds
that the district court properly found the comments
insufficient as a matter of law, and that many of the
alleged remarks cannot even be attributed to national
origin discrimination.
We do not need to reach the question of whether
Smith’s comments are sufficient to support a hostile work
environment claim. Even assuming arguendo that the
remarks created a hostile work environment, Andonissamy
has not established a basis for employer liability in this
case. Under Title VII, an employer can be vicariously
liable for a hostile work environment created by a super-
visor, but is only liable for a hostile work environment
created by a co-worker if the employer was negligent in
discovering or remedying the harassment. Velez, 442 F.3d
at 1047. A “supervisor” for purposes of Title VII is not
simply a person who possesses authority to oversee the
plaintiff’s job performance, but a person with the power to
directly affect the terms and conditions of the plaintiff’s
employment. Id; see also Hall v. Bodine Elec. Co., 276 F.3d
345, 355 (7th Cir. 2002). In this circuit, the term means
10 Nos. 07-2387 & 07-2390
generally a person with “the authority to hire, fire, pro-
mote, demote, discipline or transfer . . .” Rhodes v. Illinois
Dept. of Transp., 359 F.3d 498, 506 (7th Cir. 2004). Smith,
while Andonissamy’s “supervisor” in the colloquial sense
of the word, did not possess the authority that would make
him a supervisor for purposes of Title VII. He did not
hire or fire Andonissamy, and while he recommended
disciplinary action, the record shows that human re-
sources first had to conduct an investigation and issue
a recommendation before any disciplinary action could
be taken.
Andonissamy argues that Smith directed Andonissamy’s
performance and recommended disciplinary action to
human resources, and thus qualifies as a supervisor
for purposes of Title VII. However, as the district court
correctly noted in its summary judgment opinion,
directing work activities and recommending disciplinary
action are not in and of themselves sufficient to make
someone a supervisor under Title VII. See Rhodes,
359 F.3d at 506. Rather, Andonissamy would have to
point to evidence that Smith could directly affect the
terms and conditions of his employment. Again,
Andonissamy must produce evidence that Smith could
hire, fire, promote, demote, discipline or transfer him. Such
evidence is simply not in the record. Smith neither
hired nor fired Andonissamy; the deposition testimony
indicates that Russell Lewis, not Smith, made the deci-
sions to hire and fire Andonissamy. Nor could Smith
demote or discipline Andonissamy; he could recommend
that the company discipline an employee, but such
action was subject to an investigation and approval from
human resources, and the decision was not up to him.
Nos. 07-2387 & 07-2390 11
Andonissamy attempts to establish liability under “cat’s
paw” doctrine, arguing that Lewis and the human re-
sources department were just a screen for Smith’s deci-
sions. The “cat’s paw” doctrine does create a basis for
employer liability when a single individual lacks the
requisite power of a Title VII supervisor. See Phelan v. Cook
County, 463 F.3d 773, 784 (7th Cir. 2006); see also Shager v.
Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). The
doctrine is not helpful to Andonissamy in this case,
however, because it applies only in those cases where
no one individual possesses the powers of a Title VII
supervisor (such as the hydra-headed supervisory com-
mittee this court reviewed in Phelan). In this case, how-
ever, Russell Lewis ultimately made the decision to hire
and fire Andonissamy, and thus he has the authority of
a Title VII supervisor. Additionally, the “cat’s paw”
doctrine has been applied in cases where committee
decisions are not independent and appear to be taken
without conducting any real investigation. See Shager,
913 F.2d at 405. Here, however, human resources investi-
gated the complaints against Andonissamy before recom-
mending disciplinary action, and there is no evidence
that the department was simply a legal smokescreen.
Andonissamy does not establish that Hewlett-Packard is
liable for failing to detect or remedy the alleged discrim-
inatory environment. To establish that Hewlett-Packard
is liable for failing to remedy a hostile work environment
created by co-workers, Andonissamy would need to
demonstrate that he notified the employer about the
harassment or that the harassment was so pervasive that
a jury could infer his employer knew about it. See
Zimmerman v. Cook County Sheriff’s Dept., 96 F.3d 1017 (7th
12 Nos. 07-2387 & 07-2390
Cir. 1996). In his briefs to this court, Andonissamy cites
the fight with his co-workers as an instance of national
origin discrimination that Hewlett-Packard was
negligent for not remedying.1 This incident, however,
was not mentioned in Andonissamy’s EEOC letter and
the allegation appeared for the first time in this litigation.
Even assuming that the claim is not barred, this was a
single incident, and Andonissamy does not present
evidence that he brought the incident to anyone’s atten-
tion. While he did send an e-mail to Lewis and to human
resources on May 6, 2003 complaining about Smith, this
e-mail did not contain allegations of national origin dis-
crimination; the only reference in the e-mail is a reference
to Andonissamy’s immigrant status, which is not itself
a complaint about national origin discrimination and
would not establish that Hewlett-Packard is liable for
failing to act on the allegation. Accordingly, we affirm
1
This claim is, to put it mildly, problematic. In his opening
brief, Andonissamy alleges that he was assaulted at work by
two co-workers and cites, in support of this contention, the
deposition testimony of Hans Sterlin. The relevant excerpts
from the deposition testimony, however, are Sterlin’s denials
that such an attack ever took place. For instance: “Q: Did Bayo
hit Sanjay? A: No. Q: Did you hold the door closed while Bayo
hit Sanjay? A: No.” Sterlin Dep. at 41 (omitting an objection
to the form of the second question). Yet Andonissamy cites
this testimony as though it is evidence of the claim. Sterlin refers
to a verbal altercation in which another co-worker objected to
Andonissamy’s orders that he print some documents for him;
there is nothing in this testimony supporting the claim that the
fight was racially motivated or that it escalated beyond a
verbal disagreement.
Nos. 07-2387 & 07-2390 13
the district court’s summary judgment decision on this
count.
2. § 1981 claim.
When pursuing a § 1981 claim, a plaintiff can proceed
by either the direct or indirect method. The direct method
requires the plaintiff to produce evidence that the defen-
dants were motivated by animus based upon his national
origin when he was denied some employment benefit or
suffered some adverse employment action. Sun v. Board of
Trustees of Univ. of Ill., 473 F.3d 799, 812 (7th Cir. 2007). The
indirect method requires demonstrating that (1) plaintiff
is a member of a protected class; (2) he was meeting his
employer’s legitimate performance expectations; (3)
he suffered an adverse employment action; (4) other
similarly situated employees who were not part of the
same class were treated more favorably. Fane v. Locke
Reynolds, LLP, 480 F.3d 534, 538 (7th Cir. 2007).
While Andonissamy’s briefs mention the § 1981 claim,
there is nothing in either brief discussing the elements of
a claim under either the direct or indirect method. His
discussion of the § 1981 claim in his opening brief overlaps
entirely with the hostile work environment claim. At any
rate, under the direct method Andonissamy has simply
not produced evidence that his termination or any other
adverse employment action was based on his national
origin, and indeed the record indicates that he was termi-
nated only after human resources conducted an investiga-
tion into a number of insubordinate incidents and after
the company issued him a performance warning re-
14 Nos. 07-2387 & 07-2390
garding his conduct. With respect to the indirect method,
Andonissamy is unable to meet the second prong of the
test based on the available record. Qwest expressed to
Hewlett-Packard its concerns about missing documenta-
tion regarding their systems, and refused to approve
Andonissamy’s return to the Cyber Center, and Hewlett-
Packard had issued him a performance warning based on
a number of incidents between Andonissamy and his
supervisors and co-workers. Andonissamy thus cannot
demonstrate that he was meeting their legitimate ex-
pectations at the time he was fired. Nor did Andonissamy
provide evidence demonstrating that other, similarly
situated employees from different national origins were
treated more favorably. We thus affirm the district
court’s summary judgment decision on this count as well.
B. Retaliation claim.
Andonissamy’s next argument is that the district court
improperly dismissed his claim that Hewlett-Packard
retaliated against him for notifying superiors about the
hostile work environment.
To establish a claim for retaliation, an employee can
proceed under one of two methods. Under the direct
method, an employee must demonstrate that (1) he en-
gaged in statutorily protected activity; (2) he suffered
an adverse action taken by his employer; and (3) there
was a causal connection between the statutorily pro-
tected activity and the adverse action. Tomanovich v. City
of Indianapolis, 457 F.3d 656, 662-63 (7th Cir. 2006). Under
the indirect method, a plaintiff must prove that (1) he
engaged in statutorily protected activity; (2) he met his
Nos. 07-2387 & 07-2390 15
employer’s legitimate expectations; (3) he suffered an
adverse employment action; and (4) he was treated less
favorably than similarly situated employees who did
not engage in statutorily protected activity. Id.
The district court ruled, first, that Andonissamy could
not make a retaliation claim because he never com-
plained to Hewlett-Packard about discriminatory
behavior and so never engaged in statutorily protected
activity. Second, the court found that the timing of
Hewlett-Packard’s actions was not suspicious, as the
record indicated that Andonissamy complained about
Smith on May 6, 2003, which was the day after Smith
served him with a performance warning based on Dixon-
Woolfolk’s investigation.
Andonissamy argues that he can prove his retaliation
claim via the direct method. He claims that his e-mail to
Lewis on May 6, 2003, which makes reference to his
immigrant status, was sufficient to constitute a report of
discrimination under Title VII. Andonissamy also
argues that the timing of his termination, after Dixon-
Woolfolk had completed her investigation of Smith, was
suspicious. Andonissamy’s May 6, 2003 e-mail does
contain a litany of complaints about Ken Smith, about
Andonissamy’s work schedule, and about his high-pres-
sure client work, but nothing that a reader would
interpret as a complaint of national origin discrimina-
tion. While a report of discrimination to a supervisor
may be statutorily protected activity under Title VII, the
report must include a complaint of national origin dis-
crimination or sufficient facts to raise that inference. See
16 Nos. 07-2387 & 07-2390
Tomanovich, 457 F.3d at 663; see also Sitar v. Indiana Dept.
of Transp., 344 F.3d 720, 727 (7th Cir. 2003).
In his deposition, Andonissamy admitted that he did
not include his complaints about national origin discrimi-
nation in his correspondence with Lewis and human
resources but planned to mention those complaints if
anyone from the human resources department contacted
him during an investigation. At best, this raises an in-
ference that Andonissamy planned to engage in
statutorily protected activity, but it does not amount
to statutorily protected activity in its own right.
Moreover, with respect to the third element of this claim,
Andonissamy’s purported causal connection arises
from nothing more than suspicious timing. However, this
circuit has held that “[s]uspicious timing alone rarely is
sufficient to create a triable issue.” Tomanovich, 457 F.3d at
665. On summary judgment, in particular, “it is clear that
mere temporal proximity is not enough to establish a
genuine issue of material fact.” Wyninger v. New Venture
Gear, Inc., 361 F.3d 965, 981 (7th Cir. 2004). Thus, even
if this court were to accept that Andonissamy’s e-mail
was a complaint of national origin discrimination, he
could not produce a genuine issue of material fact for
trial. This is particularly true since the report in this case
occurred after Andonissamy had already received a
performance warning for the very same conduct that
ultimately led to his termination. Nor could Andonissamy
make a retaliation claim under the indirect method,
given the ongoing complaints about his job performance
and his inability to demonstrate that he was meeting
Nos. 07-2387 & 07-2390 17
his employer’s legitimate expectations at the time of his
termination.
Finally, there is the issue of whether this claim is proce-
durally barred because of Andonissamy’s failure to
make a retaliation charge in his EEOC letter. Under the
law of this circuit, “a Title VII plaintiff may bring only
those claims that were included in her EEOC charge.”
McKenzie v. Ill. Dept. of Transp., 92 F.3d 473, 481 (7th Cir.
1996). Andonissamy concedes in his reply brief that
his original complaint to the EEOC did not include a
retaliation claim. However, he claims that the retalia-
tion claim grew out of his original allegations, and that
he included the allegations in a letter to the EEOC.
Hewlett-Packard anticipated this contention in their
response brief, cited Cheek v. Western Life Ins. Co., 31
F.3d 497, 502-03 (7th Cir. 2000), and argued that under
the law of this circuit, subsequent letters to the EEOC can
only “clarify or amplify” allegations in the original com-
plaint, and cannot state additional complaints. Id. (citing
29 C.F.R. § 1601.12(b)). The applicable regulations do
hold that an amendment to a complaint can allege “addi-
tional acts which constitute unlawful employment prac-
tices related to or growing out of the subject matter of the
original charge.” 29 C.F.R. § 1601.12(b). However, the
retaliation claim at issue here arose from Andonissamy’s
termination, which involves conduct different from the
hostile work environment claim that Andonissamy
raised in his EEOC complaint. The additional complaint
thus does not grow out of the allegations in the initial
complaint, and they are related to the allegations only
insofar as they involve some of the same supervisors
18 Nos. 07-2387 & 07-2390
and the same job. Ultimately, however, we need not
decide whether Andonissamy’s claim is barred, because
he fails to present evidence raising a material issue of
fact on the elements of his claim. Accordingly, we affirm
the district court’s decision on summary judgment.
C. Family and Medical Leave Act claim.
Andonissamy next argues that the district court improp-
erly dismissed his claim that Hewlett-Packard denied
him leave under the Family and Medical Leave Act. The
district court dismissed this claim at summary judgment
for two reasons. First, because the record indicated that
Andonissamy’s treating physician had never placed any
restrictions on his daily activities or his work, and that he
was not diagnosed with clinical depression. Second,
because while Andonissamy correctly argued that the
FMLA entitles employees to periodic leave, he made
no allegation that his doctor believed he required inter-
mittent leave, or that he himself believed that he re-
quired intermittent leave.
Hewlett-Packard argues that this claim fails because
Andonissamy never requested intermittent leave under
the FMLA. Andonissamy argues in his appellate briefs
that his failure to request leave is irrelevant, as the change
in his behavior was sufficient to place Hewlett-Packard on
notice that he needed intermittent leave. There is some
authority for the idea that an employee’s conduct can put
an employer on notice of the need for leave. See Byrne v.
Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003); see also
Stevenson v. Hyre Electric Co., 505 F.3d 720 (7th Cir. 2007). In
Nos. 07-2387 & 07-2390 19
those cases, an employer had adequate notice of an em-
ployee’s need for intermittent leave based on a sudden
change in circumstances. However, both of these cases
involved dramatic and sudden changes in an employee’s
behavior, and requests for at least minimal leave time.
Neither of those factors applies in the present case.
Andonissamy had been reprimanded throughout his
employment with Hewlett-Packard for his inappropriate
behavior, and so there was no dramatic change when he
began taking depression medication. Moreover, the
closest thing that Andonissamy made to a request for
medical leave was a request for time off to attend his
nephew’s funeral in India. This was not a request for sick
time, however, and it is difficult to construe this as a
request for FMLA leave. We thus affirm the district court’s
summary judgment order on this claim because
Andonissamy did not give Hewlett-Packard notice of
any need for FMLA leave.
D. Whether Andonissamy’s assault claim related back
to the original pleading.
Andonissamy finally argues that the district court
improperly dismissed his assault claim against Smith
under Rule 12(b)(6) because it was barred by the Illinois
statute of limitations. Andonissamy argues that the
claim relates back to the time of the original filing
under Federal Rule of Civil Procedure 15(c), because his
original complaint and second amended complaint alleged
physical intimidation and harassment by Ken Smith.
However, Ken Smith was not named as a defendant in
20 Nos. 07-2387 & 07-2390
this lawsuit until October 2005, some five months after
Illinois’ two-year statute of limitations for assault claims
expired. See 75 ILCS 5/13-202. As Hewlett-Packard cor-
rectly points out, the amended complaint also involved
not only a new defendant but a new claim against a
new defendant.
Federal Rule of Civil Procedure 15(c)(3) permits a
claim against a new defendant to relate back to an
original timely pleading for purposes of the statute of
limitations only if there was an identity mistake as to
the proper party to be named and that mistake is charge-
able to the new defendant. What we have in this case,
however, is a straightforward assault claim made
against a defendant who was Andonissamy’s supervisor
for two years; there is no chance of a genuine identity
mistake here, nor does Andonissamy allege one. The
district court properly dismissed the claim.
III. Conclusion
For the foregoing reasons, we A FFIRM the district court’s
order of summary judgment.
11-7-08