## Facts

- Robert Righi worked as a sales representative for SMC Corporation of America and was supervised by Louis King.
- Righi lived with and cared for his elderly mother and primarily worked from home in Illinois.
- While attending a mandatory training seminar in Indianapolis, Righi learned his mother had a serious medical emergency and left to return home.
- The next day, Righi emailed King stating he needed “the next couple days off” to arrange care and added that he had vacation available or “could apply for the family care act, which I do not want to do at this time.”
- SMC maintained policies requiring supervisor approval for leave and treating two consecutive days of unreported absence as grounds for termination.
- For more than a week after the email, King repeatedly called Righi seeking clarification about the expected duration of the absence and whether it should be treated as vacation or FMLA leave.
- Righi did not return the calls or otherwise contact SMC during the absence.
- Nine days after leaving the seminar, Righi returned to work and was terminated for violating SMC’s leave/attendance policies.
- Righi sued SMC and King alleging FMLA interference; the district court granted summary judgment to defendants, and Righi appealed.

## Issues

1. Whether Righi’s email was sufficient to invoke, or at least preserve the possibility of, FMLA leave despite language indicating he did not want to use it “at this time.”
2. Whether, assuming the leave was potentially FMLA-qualifying, Righi complied with FMLA notice obligations to provide the anticipated duration of leave as soon as practicable and to follow the employer’s usual and customary notice procedures.

## Decision

- The Seventh Circuit affirmed summary judgment for SMC and King.
- The court declined to affirm on the ground that Righi definitively disavowed FMLA leave; read favorably to him, the email could be understood as leaving open the option of using FMLA leave instead of vacation.
- The court affirmed solely because Righi failed to provide timely notice of the anticipated duration of his unforeseeable leave and failed to comply with SMC’s customary communication and leave procedures by ignoring repeated employer inquiries.
- Because Righi did not satisfy these notice and procedural obligations, his termination for violating SMC’s leave/attendance policies did not constitute FMLA interference.

## Legal Principles

- For unforeseeable FMLA leave, the employee bears the burden to notify the employer of the anticipated duration of the leave “as soon as practicable,” which (under the regulations applied by the court) generally means within one or two working days of learning of the need for leave.
- An employer may require employees to comply with the employer’s “usual and customary notice and procedural requirements” for requesting and reporting leave, including potentially FMLA-qualifying leave, so long as the requirements are consistent with FMLA regulations.
- Even if an employer has reason to suspect an absence may be FMLA-qualifying, the employee must provide reasonable information and respond to employer efforts to clarify the length and status of the leave.
- Ambiguous statements about taking vacation versus FMLA leave do not necessarily waive FMLA protections, but they do not excuse an employee’s failure to communicate and comply with required notice procedures.

## Conclusion

The Seventh Circuit held that an employee’s failure to timely communicate the expected duration of an emergency-related absence and to follow an employer’s customary leave-notice procedures defeats an FMLA interference claim, even where the underlying reason for leave could qualify under the FMLA.


Righi v. SMC Corp. of Am., 632 F.3d 404 (7th Cir. 2011)