472 F.3d 471 (7th Cir. 2006), 06-1013, Burnett v. LFW Inc.

Docket Nº:06-1013.
Citation:472 F.3d 471
Party Name:David BURNETT, Plaintiff-Appellant, v. LFW INC., doing business as The Habitat Company, Defendant-Appellee.
Case Date:December 26, 2006
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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472 F.3d 471 (7th Cir. 2006)

David BURNETT, Plaintiff-Appellant,


LFW INC., doing business as The Habitat Company, Defendant-Appellee.

No. 06-1013.

United States Court of Appeals, Seventh Circuit.

December 26, 2006

Argued September 18, 2006

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 04 C 3835—Charles P. Kocoras, Judge.

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Peter Andjelkovich, Bradley J. Wartman, Andjelkovich & Associates, Chicago, IL, for Plaintiff-Appellant.

Jeffrey S. Fowler (argued), Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Chicago, IL, for Defendant-Appellee.

Before Bauer, Rovner, and Williams , Circuit Judges.

Williams, Circuit Judge.

David Burnett brought this action alleging violations of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) against his former employer, The Habitat Company. The district court granted The Habitat Company's motion for summary judgment, concluding that Burnett had failed to provide his employer with notice of his medical condition, as required under both the FMLA and ADA. Because we find that Burnett provided his employer information sufficient to notify his employer of his need for FMLA leave, we reverse the grant of summary judgment on his FMLA claim. However, we conclude that Burnett has failed to show that he was disabled within the meaning of the ADA at the time of his termination, and therefore affirm the grant of summary judgment on Burnett's ADA claim.


The following facts are recounted in the light most favorable to Burnett, the nonmovant. Burnett began working as a janitor for The Habitat Company ("Habitat"), a property management company, in 1989. Beginning in 1990, Burnett came under the supervision of Sergio Polo. In 1994, Burnett became a "detailer," responsible for verifying that apartment equipment and furnishings were in working order before the arrival of a new tenant. As a detailer, Burnett was sometimes required to lift heavy objects, such as closet doors and appliances. According to Polo, no complaints regarding Burnett's performance were brought to his attention before October 2003.

In October 2003, Burnett first informed Habitat that he was experiencing some medical difficulties. That month, Polo offered to transfer Burnett to a different location in the facility, presumably because of recurring conflicts between Burnett and an assistant engineer. Burnett, however, declined the transfer, telling Polo that given his "weak bladder," he did not wish to

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transfer to the position, which would result in reduced restroom access. Further, he informed Polo that he was going to see a doctor to determine the cause of the bladder problem. At the end of November, Polo gave Burnett a verbal warning regarding his performance.

After his week-long absence in December 2003, Burnett again spoke with Polo about his health. On December 11, Burnett presented Polo with a copy of a doctor's order for blood testing to justify some of his absences. Burnett further explained that during his time off he had visited the doctor, undergone a physical examination, and learned that he had two serious problems--high PSA (Prostate-Specific Antigen) and cholesterol levels. Burnett did not explain the significance of a heightened PSA level nor did anyone ask him to do so. However, he did inform Polo of his upcoming doctor's appointments and need to see a urologist.

On December 16, Burnett met with Polo, other Habitat managers, and a union representative to further discuss his absences. Burnett told the individuals present at the meeting that he had been "sick" during his week-long absence. He elaborated that although he "didn't look sick," he felt he was "getting sick or was sick." And, he named the probable source of his illness by comparing his circumstance with that of his brother-in-law who had been afflicted with prostate cancer. That same day, Polo sent an email to other supervisors informing them that Burnett should be afforded sick leave on January 6 and 8, 2004, to attend doctor's appointments.

On January 7, 2004, Burnett notified Habitat that he would be undergoing a prostate biopsy on January 27. Burnett gave one of his supervisors, Mitch Hehr, a document describing the prostate ultrasound and biopsy procedures. The document provided that "[i]ndications for the examination are an abnormal rectal exam or an elevation of prostate cancer screening blood test (PSA)." Under standard Habitat policy, Hehr should have provided Polo with a copy of the document, although Polo denies receiving it. That same day, Polo issued Burnett a reprimand for "substandard work."

One week later, on January 14, Polo gave Burnett written reprimands regarding two events occurring on that day. First, Polo accused Burnett of wasting company time by disrupting another employee's work. Second, Polo stated that Burnett was disruptive during their conversation about Burnett's upcoming appointment with Human Resources. Specifically, Burnett believed that he was scheduled to meet with the Human Resources manager that afternoon to discuss his desire to transfer to a midnight shift, but Polo assured him that the meeting was scheduled for the following day. When Burnett called Human Resources, he learned that Polo was correct, but accepted the Human Resources Department's offer to see him that day.

Polo met Burnett at the time clock as Burnett prepared to leave work to attend the meeting with Human Resources. At that time, Polo stated that he would not grant Burnett the desired transfer, because Burnett was a "loose cannon." He also gave Burnett a written reprimand concerning the first episode of the day. When Burnett asked whether that would be his final reprimand, Polo said "no." Instead, Polo referred to a document in his hand as Burnett's final reprimand. Burnett claims to have understood Polo's conduct to indicate that he was being terminated.

Thereafter, Burnett filed a union grievance, and a union meeting was set for January 26. On the advice of his union representative, Burnett did not return to

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work until the day of the union meeting. As a result, Polo issued a reprimand stating that Burnett had missed work on January 15, 2016, and 19, and suspended Burnett for three days without pay.

At the union meeting, Burnett told Polo and others that he was scheduled to have a biopsy the following day. He described the biopsy as "a nasty, nasty procedure" involving bleeding and infections. He also stated that if he were ultimately diagnosed with a progressive form of prostate cancer like that of his brother-in-law, he might commit suicide, because he lived alone, had no means of caring for himself, and did not wish to be bedridden.

On January 27, Burnett underwent the prostate biopsy, as scheduled. The next day, Burnett gave Habitat a document entitled "Treatment Plan," confirming that he had had the biopsy and instructing him to avoid heavy lifting or strenuous activity following the biopsy. It is undisputed that Polo received a copy of the document. Additionally, Burnett spoke to one of his supervisors about his work restrictions and asked for help with his duties. According to Burnett, the supervisor ignored his request, and Burnett agreed to perform his duties to the best of his ability. That same day, Burnett submitted a previously-approved vacation request for the second week of February (the week he anticipated receiving the biopsy results). The next day, January 29, he submitted an additional vacation request, this time for the first week in February, purportedly because he did not get a light duty assignment or the help that he had requested on the previous day and was worried about being injured.

Burnett's second request for leave set off a flurry of activity among the Habitat supervisors. One supervisor informed Burnett that Polo wished to see him in his office. In response, Burnett asked the supervisor to notify Polo that he felt sick and wanted to go home. Two other supervisors then confronted Burnett at the time clock and demanded that he visit Polo before leaving work. Burnett refused, saying again that he felt sick. At that time, the supervisors contacted Polo via radio, requesting that Polo immediately meet them (and, by implication, Burnett) at the time clock. When Polo arrived, Burnett told him that he felt sick and wanted to go home. According to Burnett, Polo stated that if Burnett was referring to the "1-27-04 document [the Treatment Plan, which advised Burnett to refrain from heavy lifting], it's not important." Burnett replied that the Treatment Plan was important to him and that, "I'm not going to sit here and argue . . . my health is more important than arguing with [you]." Burnett then punched out at the time clock, and Polo accused him of being insubordinate.

After Burnett left work on January 29, Polo and the other managers met to discuss him. Polo testified that at that point he "probably" knew that Burnett had undergone a prostate biopsy, and that he generally knew that biopsies were a method of testing for cancer. Nonetheless, on February 2, Polo sent a letter to Burnett terminating his employment effective January 30, 2004.

On January 31, Burnett went to the emergency room due to complications from the biopsy. He delivered the discharge paperwork to a colleague on or about February 3, who passed the documents on to a supervisor. Polo testified that he "briefly" looked at the documents, but did not reconsider his decision. On February 10, Burnett was diagnosed with prostate cancer.

Burnett filed suit against Habitat, claiming violations of the FMLA and the ADA. The district court granted summary judgment in favor of Habitat, primarily because

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it concluded that Burnett could not show that he had...

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