Barrett v. Ill. Dep't of Corr.

• Decision Date: 20 October 2015
• Docket Number: No. 13–2833.,13–2833.
• Parties: Cindy BARRETT, Plaintiff–Appellant, v. ILLINOIS DEPARTMENT OF CORRECTIONS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

803 F.3d 893

Cindy BARRETT, Plaintiff–Appellant

v.ILLINOIS DEPARTMENT OF CORRECTIONS, Defendant–Appellee.

No. 13–2833.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 15, 2014.

Decided Oct. 20, 2015.

John A. Baker, Attorney, Baker, Baker & Krajewski, Springfield, IL, for Plaintiff–Appellant.

Carl J. Elitz, Attorney, Office of the Attorney General, Chicago, IL, for Defendant–Appellee.

Before FLAUM, KANNE, and SYKES, Circuit Judges.

Opinion

SYKES, Circuit Judge.

Employees in the Illinois Department of Corrections (“IDOC”) can be fired if they accumulate 12 unauthorized absences from work. Under IDOC's absenteeism policy, unauthorized absences accrue on an employee's record but are automatically expunged if the employee has a clean attendance history for a period of 24 consecutive months.

Cindy Barrett was fired from her job at IDOC in October 2010 after accumulating 12 unauthorized absences over a period of seven years. She claims that three of these absences—on December 15, 2003; December 22, 2004; and August 10, 2005—were for family or medical care and thus were protected by the Family and Medical Leave Act (“FMLA” or “the Act”), 29 U.S.C. §§ 2601 et seq. In January 2012 she sued IDOC for violating her rights under the Act. The district court concluded that the suit was time-barred and entered judgment for IDOC.

We affirm. An FMLA suit must be filed “not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” Id. § 2617(c)(1). Here, the alleged FMLA violations occurred, and the limitations period began to run, when IDOC denied Barrett's requests for leave and classified the three contested absences as unauthorized—not, as she contends, when she was fired years later as a consequence of her overall attendance record.

I. Background

In December 1995 Barrett began work at IDOC as an account technician. At that time IDOC maintained a system of progressive discipline for repeat unauthorized absences. Disciplinary measures ranged from an oral reprimand to suspensions of increasing duration, and after ten unauthorized absences, the employee could be fired. Unauthorized absences accrued on the employee's record until the employee went two years without receiving one; at that point the record was expunged.

Barrett's first unauthorized absence occurred on December 15, 2003. She contends that this absence was one of three that were FMLA protected and thus should not have been classified as unauthorized.

More specifically, Barrett alleges that on December 14, 2003, she was admitted to the emergency room with pneumonia

. Following doctor's orders, she called in to work and asked to use sick leave for the following day. When she returned to work on December 16, she gave her supervisor a copy of her diagnosis and her hospital wristband, but she was told that she lacked sufficient sick leave to cover her request. On January 13, 2004, she went before the Employee Review Board to challenge this absence. Barrett furnished a work-release form from her doctor recommending that she take off work on December 15. Nevertheless, she was found “guilty” of being absent without authorization and received a verbal reprimand.

Barrett does not contest her second, third, and fourth unauthorized absences. Her fifth unexcused absence occurred on December 22, 2004. The previous day, Barrett's daughter was hospitalized after experiencing pre-term labor, and that night Barrett notified her supervisor that she would miss work the following day to attend to her daughter. She was indeed absent from work the next day. When she returned on December 23, she completed paperwork explaining her absence. At a hearing before the Employee Review Board on January 14, 2005, she was again found “guilty” of an unauthorized absence because she did not have any sick leave available. Under the attendance policy then in effect, Barrett received a three-day “paper suspension,” meaning she still reported for work and suffered no lost wages.

Barrett's sixth unauthorized absence occurred on August 10, 2005, when she left work for physical therapy. On September 28, 2005, the Employee Review Board found her “guilty” of an unauthorized absence and imposed another paper suspension, this time for five days. She lost no work time or wages.

Barrett does not contest her seventh and eighth unauthorized absences, but the latter bears mentioning for another reason. In October 2007 Barrett was suspended for three days after accumulating an eighth unauthorized absence on October 3. Under the attendance policy in place at the time, this suspension was not merely “on paper” but was actually enforced. Barrett suffered three days' lost hours and wages.

In September 2008 IDOC and its employees' union negotiated and adopted a more lenient attendance policy. Employees were now subject to termination after accumulating 12 (rather than 10) unauthorized absences, and all suspensions would be “on paper” until the employee's eleventh unexcused absence. The expungement feature of the policy—erasing accrued unauthorized absences after a clean attendance record for 24 consecutive months—remained in place.

Barrett does not contest her ninth, tenth, eleventh, or twelfth unauthorized absences, the last of which occurred on May 14, 2010. On September 30, 2010, Barrett was suspended without pay pending termination for excessive absenteeism. She was fired on October 15, 2010.

Barrett sought review before the Illinois Civil Service Commission. She did not raise an FMLA argument at the hearing. (Indeed, she never raised the FMLA with her supervisors or before the Employee Review Board either.) An administrative law judge recommended that the termination be sustained. The Commission adopted that recommendation, and Barrett did not pursue further review in Illinois state court.

Instead, on January 27, 2012, she sued IDOC in federal court for violating her rights under the FMLA. At the summary-judgment stage, the district court concluded that the suit was barred by the FMLA's two-year statute of limitations. § 2617(c)(1). Barrett had urged the court to find that the limitations period began to run when her employment was terminated on October 15, 2010. If the limitations clock started on that day, the suit was timely; she filed it 17 months later, within the two-year period. IDOC maintained, on the other hand, that the alleged FMLA violations accrued many years earlier, when Barrett was denied leave for each of the three absences she now claims were statutorily protected.

In a thorough opinion, the district judge agreed with IDOC, found the suit untimely, and granted IDOC's motion for summary judgment. See Barrett v. Ill. Dep't of Corr. (“Barrett I ”), 958 F.Supp.2d 984(C.D.Ill.2013). This appeal followed.

II. Discussion

Resolving this appeal requires us to interpret and apply the FMLA's statute of limitations in the context of an absenteeism policy based on a system of progressive discipline. This is a legal question of first impression in this circuit.¹ Our review is de novo. James v. Hyatt Regency Chi., 707 F.3d 775, 779 (7th Cir.2013) (“We review a district court's grant of summary judgment de novo. ”); Breneisen v. Motorola, Inc., 656 F.3d 701, 704 (7th Cir.2011) (“A district court's interpretation of a federal statute such as the FMLA is a question of law which we review de novo. ”).

We begin with the statutory text. The FMLA provides that “an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.”² § 2617(c)(1). To determine when the claim accrued, the statute tells us to identify the “last event” constituting the alleged FMLA violation.

As relevant here, the FMLA makes it unlawful for an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.”³ 29 U.S.C. § 2615(a)(1). One such right—the one at issue in this case—is the employee's entitlement to “a total of 12 workweeks of leave during any 12–month period” for the purpose of family and medical care. Id. § 2612(a)(1). Because the FMLA does not expressly define “leave,” we apply its ordinary meaning. In the workplace context, “leave” equates to “an authorized absence or vacation from duty or employment.” Webster's Third New International Dictionary 1287 (1993). To prove an FMLA claim based on a denial of qualifying leave, a plaintiff must show some impairment of his rights and resulting prejudice. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 90, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002).

Barrett alleges that IDOC improperly denied leave on three specific occasions.⁴ More particularly, she claims that three of her 12 unexcused absences—December 15, 2003; December 22, 2004; and August 10, 2005—were for qualifying family or medical leave, but IDOC mistakenly classified them as unauthorized. On each of these occasions, Barrett notified her supervisor of her impending absence, was absent without authorization, and later went before the Employee Review Board to challenge IDOC's decision to treat the absence as unexcused. Each time the Board rejected Barrett's request for leave, recorded the absence as unauthorized, and imposed some form of discipline (a reprimand, a three-day paper suspension, and a five-day paper suspension). Barrett maintains that by classifying these absences as unauthorized, IDOC violated the FMLA. Her claim, in short, is one for denial of leave guaranteed to her by the Act.

When an FMLA plaintiff alleges that his employer violated the Act by denying qualifying leave, the last event constituting the claim ordinarily will be the employer's rejection of the employee's request for leave. So it is here. Each time the Employee Review Board ruled against Barrett, an actionable FMLA claim accrued and the limitations clock started to run. With each ruling Barrett's FMLA rights were impaired and she...