Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—7th Cir.: Instructional aide who took prior FMLA leave and resigned after attendance warnings failed to revive lawsuit, (Jul 8, 2025)

By Marjorie Johnson, J.D.

The Seventh Circuit declined to decide whether “anticipatory retaliation” was a viable theory of FMLA liability since she failed to show that she either could or intended to use FMLA leave when warned to improve her attendance.

An instructional aide who took FMLA leave due to depression following the death of her husband at the end of the 2017-2018 school year, and then resigned two months into the following school year the day after she received a written warning for excessive absenteeism after she exceeded the limit of her paid-leave days for unrelated reasons, failed to revive her FMLA interference and retaliation claims on appeal. Affirming summary judgment against her, the Seventh Circuit concluded that she was not eligible for FMLA leave at the time she resigned, did not have a qualifying FMLA condition, did not provide proper notice, and lacked evidence suggesting the principal punished her for taking leave the year before. In addition, her ADA “regarded as” claim failed since she could not show that she suffered a constructive discharge, and her equal-protection claim wholly lacked comparator evidence (Myers v. Sunman-Dearborn Community Schools, No. 22-1966 (7th Cir. July 1, 2025)).

The employee worked for the school district as an instructional aide since 2001. Her employment troubles began after her husband died unexpectedly in May 2017. Her mother had also died two years earlier, and she struggled with depression from the combined effect of her losses.

Absences and FMLA leave. For these and other reasons, she was absent 25.5 days during the 2017–2018 school year—14.5 days more than the 8 paid sick days and 3 paid personal days that she was entitled to each year. She eventually applied for FMLA leave, which was approved from March 1 to April 16, 2018, and then extended through the end of the school year.

Continued absences. At the beginning of the next school year, the new principal remarked when she met the employee that “I heard a lot about you, you have problems at home,” and in the weeks that followed allegedly encouraged her to seek counseling. She also mailed her an Employee Assistance Program pamphlet to the employee.

Warned about absences, resigns. Meanwhile, the employee’s absences continued. By the beginning of November, she had used all 11 of her paid leave days and an additional 6 days of unpaid leave, which she attributed to bouts of pneumonia, bronchitis, and strep throat. On Friday, November 9, the principal allegedly told her, “If you miss one more day, I’m going to terminate you.” The following Monday, the principal issued her a written warning regarding her excessive absences which and stated that “I expect to see a drastic improvement in attendance or you will be at risk of termination due to excessive absences.” She resigned the next day.

FMLA claim. The employee’s FMLA interference and retaliation claims overlapped, explained the Seventh Circuit. She claimed that the principal’s threat to fire her if she continued to miss work and the subsequent written warning prevented her from applying for future FMLA leave. She also contended that the principal issued the warning in “anticipatory retaliation” for any future leave-taking or in retaliation for her use of leave during the 2017–2018 school year.

Not eligible. However, the district court correctly concluded that her FMLA interference claim failed because she was not an “eligible employee” under the FMLA since she had not worked “at least 1,250 hours of service with such employer during the previous 12-month period.” Rather, although she had been employed by the school district for many years, she worked only 705 hours in the 12-month period prior to the principal’s oral and written warnings. Indeed, she conceded that she was not eligible for FMLA leave when she resigned.

No serious health condition. In addition, she also failed to show that she had a serious health condition entitling her to take FMLA leave during the applicable period. While she struggled with depression during the prior school year, she did not claim that this condition interfered with her ability to work during the 2018–2019 school year and agreed that she had recovered well enough to return to work. Rather, she attributed her frequent absences to discrete bouts of pneumonia, bronchitis, and strep throat—as well as a low immune system,” thyroid disease, and arthritis. “She has made no effort, however, to connect these illnesses to the statutory standard for a qualifying health condition,” explained the Seventh Circuit.

No notice. She also failed to present evidence that she provided proper notice of her intent to take FMLA leave. The fact that she called in sick multiple times was insufficient to put the employer on notice that she may qualify for FMLA leave, and none of the doctor’s notes she submitted suggested that she might need FMLA leave. Rather, they were simply “generic templates” asking that she be excused “from work/school” with “[n]o limitations” on activity, none of which hinted that she might need FMLA leave.

No “anticipatory retaliation.” The Seventh Circuit declined to decide whether the concept of “anticipatory retaliation” was distinct and viable theory of FMLA liability since the employee failed to show that she either could or intended to use FMLA leave when the principal warned her to improve her attendance. And as with her ADA claim, she failed to show she was constructively discharged.

No constructive discharge. The employee’s ADA claim that she was forced to resign because principal impermissibly regarded her as disabled failed since “[n]o evidence suggested that she suffered serious or persistent harassment based on an actual or perceived disability, much less that her working conditions were objectively intolerable,” as required for a constructive discharge claim. Her “anodyne and infrequent run-ins” with the principal did not suffice, and although she risked being fired if she did not improve her attendance, the record did not suggest her termination was imminent and unavoidable.

No comparator. Finally, her equal-protection claim failed since she made no effort to identify any similarly situated employee who was treated more favorably. She attempted to meet her burden by pointing to the principal’s testimony—in response to questioning over whether other instructional aides ever exceeded their allotted sick days—that “I’ve seen that happen. They’ll go a few days over, but it’s not typical to run out of days in October.” However, the Seventh Circuit found that testimony to be “far from sufficient.”

The case is No. 22-1966.

Judge: Sykes, D.

Attorneys: Tae Sture (Sture Legal Services) for Melissa Myers. Matthew S. Tarkington (Lewis & Kappes) for Sunman-Dearborn Community Schools.

Companies: Sunman-Dearborn Community Schools

Cases: EmployeeLeave DisabilityDiscrimination Discrimination Discharge Retaliation IndividualRights PublicEmployees IllinoisNews IndianaNews WisconsinNews