RIPPLE, Circuit Judge.
Kiersten M. Taylor-Novotny brought this action against her former employer, Health Alliance Medical Plans, Inc. ("Health Alliance"), under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 26012654, and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Specifically, she contended that Health Alliance had failed to accommodate her multiple sclerosis as the ADA required, had discriminated and retaliated
We now affirm the district court's judgment. Ms. Taylor-Novotny cannot succeed on her ADA discrimination claim because she did not establish that she was disabled within the meaning of the ADA and because she was not meeting Health Alliance's legitimate expectations for punctuality and accountability. Her failure to meet Health Alliance's legitimate expectations also forecloses her race discrimination claim. She cannot succeed on her ADA failure-to-accommodate claim because she did not establish that the additional accommodation that she sought from Health Alliance was reasonable. Further, the evidence that she offers for her ADA retaliation claim is insufficient to form a convincing mosaic suggesting that Health Alliance retaliated against her because she sought accommodations for her multiple sclerosis. Finally, her FMLA interference claim must fail because Health Alliance never denied Ms. Taylor-Novotny FMLA leave.
Ms. Taylor-Novotny, an African-American woman, began her employment with Health Alliance in November 2005. She was hired by Jeff Polk, who also is African-American, for the position of Contract Specialist I. As a Contract Specialist I, Ms. Taylor-Novotny was a salaried, rather than hourly, employee. Her job responsibilities included document preparation, negotiating and reviewing contract terms with medical providers, planning proactively for contract renewals, and documenting activities related to medical provider contracts in a contracting management system. At the time Ms. Taylor-Novotny was hired, she had not been diagnosed with multiple sclerosis.
Almost immediately, Ms. Taylor-Novotny encountered difficulties with punctuality and attendance. Cherie Fletcher, Ms. Taylor-Novotny's immediate supervisor, discussed the issue of tardiness with her in May 2006, and again in December 2006. When Ms. Taylor-Novotny received her first annual performance review in January 2007, Fletcher rated her overall performance as average, but rated her attendance and punctuality as marginal. Fletcher noted that Ms. Taylor-Novotny "routinely" arrived late and that she had an "unusual" number of appointments during the work day, including at least thirty appointments noted by Fletcher.
In March 2007, Health Alliance adjusted Ms. Taylor-Novotny's work schedule to make it easier for her to arrive on time. Specifically, the company pushed back her start time from 8:00 to 8:30 a.m. Shortly after this adjustment, in April 2007, Ms. Taylor-Novotny was diagnosed with multiple sclerosis.
The adjustments to Ms. Taylor-Novotny's schedule did not have the desired result. Ms. Taylor-Novotny was tardy twenty-nine times between March 28, 2007, when her start time was changed, and
Ms. Taylor-Novotny's December 2007 performance evaluation recorded ongoing problems with tardiness. She was rated "Average" in most categories, but "Marginal" in the categories of "Initiative" and "Attendance and Punctuality."
On May 25, 2008, Ms. Taylor-Novotny submitted an FMLA Certification to Health Alliance for her multiple sclerosis. Her physician recommended that she work two days a week from home and noted that she "may miss work for appts/testing/or due to [her multiple sclerosis] diagnosis."
In December 2008, Ms. Taylor-Novotny began working from home three days per week. Her "Work From Home" agreement required her to abide by all company policies and procedures and to advise Health Alliance if she were ill, had an appointment, or encountered other interferences with her work.
Six months later, in May 2009, Ms. Taylor-Novotny submitted an additional FMLA Certification to Health Alliance. Her physician noted that she had delivered a baby in April 2009 and stated that she "may miss work for appts/testing/and possibly due to [multiple sclerosis] itself."
In her June 2009 performance evaluation, Ms. Taylor-Novotny earned an overall
Ms. Taylor-Novotony maintains that she told Health Alliance staff in early 2010 that excessive fatigue from her multiple sclerosis caused her tardiness. On March 9, 2010, Ms. Taylor-Novotny submitted a note from her neurologist, dated February 11, 2010, that specified that she should not work in the office more than two half-day periods per week.
Some time in March 2010, Ms. Taylor-Novotny also began consulting with Health Alliance about ADA accommodations for her multiple sclerosis. These discussions led Health Alliance to implement several changes in Ms. Taylor-Novotny's physical work arrangement. For example, Health Alliance offered to have another employee retrieve documents from the printer and deliver mail for Ms. Taylor-Novotny. It also worked with her to reduce the files and other items that she needed to carry between her home and the office. These accommodations were successful in alleviating some of the fatigue related to Ms. Taylor-Novotny's condition. At this time, Ms. Taylor-Novotny also requested that she be allowed to use her badge scans to document her arrival times, instead of being required to inform her supervisor directly when she was late and the reason for her tardiness. Because the badge scans only recorded the time of entrance, but neither provided advance notice of, nor the reason for, the late arrival, Health Alliance refused this request.
Ms. Taylor-Novotny also met with Fletcher, Polk, and Tara Swearingen, Vice President of Human Relations, on March 19, 2010, to discuss Ms. Taylor-Novotny's continued tardiness. Swearingen reiterated that Ms. Taylor-Novotny "must contact [Fletcher] every time she will be late, her expected arrival time, and the reason for the lateness, regardless of whether she is
Following this meeting, Ms. Taylor-Novotny arrived thirty-five minutes late for work on March 23 and seventy minutes late for work on March 30. She did not contact Fletcher on either occasion to advise her that she would be late or to provide the reason for the late arrival. As a result, Ms. Taylor-Novotny received a written warning. She refused to sign the warning because she believed it was premature in light of her ongoing negotiations with Health Alliance about accommodating her multiple sclerosis.
In April 2010, Health Alliance crafted an official attendance policy specific to FLSA-exempt employees. That policy required employees to report absences to supervisors before their scheduled shifts. Similar to the plan that had been put in place for Ms. Taylor-Novotny, the policy incorporated progressive discipline, including a verbal warning, written warning, final written warning, suspension, and termination.
On May 5, 2010, Ms. Taylor-Novotny received her performance evaluation. Although she received an overall rating of "Achieves Requirements," she received a rating of "Does Not Meet Requirements" in the area of "Dependability, Compliance and Professionalism."
On May 17, 2010, Health Alliance's Human Resources Director, Lauren Schmid, told Ms. Taylor-Novotny in an email that, if she limited her office work to two half-days per week as her neurologist had recommended in his FMLA recertification, she would need to use FMLA leave for the other half of each office day. According to Schmid, allowing Ms. Taylor-Novotny to work only two half-days in the office without taking FMLA leave did not meet
Ms. Taylor-Novotny decided not to adopt that schedule because it would have reduced her FMLA leave bank and her overall pay.
On May 21, 2010, Health Alliance issued Ms. Taylor-Novotny a Final Written Warning for arriving late eight times between April 13 and May 7 without notifying her supervisor about her tardiness. The warning explained that, when Fletcher repeatedly had requested Ms. Taylor-Novotny's arrival times, it took Ms. Taylor-Novotny two weeks to respond. When she did so, a comparison between her reported times and her badge scans revealed eight tardies, ranging from seven to forty-two minutes, none of which had been reported in advance to Fletcher. The Final Written Warning noted that future inaccurate reporting of her arrival times could be construed as falsification of time records or could lead to termination. It also repeated that Ms. Taylor-Novotny was required to advise Fletcher when she would be late and the reason for her tardiness.
Three days after she received the Final Written Warning, Ms. Taylor-Novotny renewed her request to use her entrance badge scans to report her work start times because "having to remember what time [she] arrived to work [wa]s just one more thing [she] ha[d] to do."
Ms. Taylor-Novotny filed a grievance on June 4, 2010, challenging the discipline that she had received. She noted that her tardiness "ha[d] been consistent" and "brought up on Annual Employee Evaluations" during her time at Health Alliance.
Ms. Taylor-Novotny's punctuality problems continued in June and July. Health Alliance documented and brought to her attention repeated discrepancies between her reported work arrival times and her badge scans. Specifically, on June 21, 2010, Schmid questioned her about the reported arrival times for June 1 and June 8, for which her badge scans revealed she was forty-six and twenty-eight minutes late, respectively. According to Schmid's documentation of that meeting, Ms. Taylor-Novotny
Less than ten days after her meeting with Schmid, Ms. Taylor-Novotny was working from home on June 28, 2010, and did not log onto her computer until 12:42 p.m., four hours and twelve minutes after her designated start time. Ms. Taylor-Novotny later attributed this discrepancy in time to internet connectivity problems. Nevertheless, she failed to report the issue to her supervisor as required by Health Alliance's work at home policy.
In a letter dated July 13, 2010, Ms. Taylor-Novotny's physician responded to Schmid's inquiry from May about Ms. Taylor-Novotny's limitations. He wrote that she suffered "very poor energy and stamina."
Polk terminated Ms. Taylor-Novotny's employment on July 30, 2010. In its termination letter, Health Alliance informed her that it was removing her because of her continued tardiness and failure to report accurately her work time. It detailed the history of these issues as well as Ms. Taylor-Novotny's infractions since Health Alliance had issued her a final written warning in late May. Additionally, Health Alliance stated that it was terminating her for "Falsifying Departmental Documents" and "Poor Work Performance."
With respect to her performance, Health Alliance noted that Ms. Taylor-Novotny repeatedly had failed to meet interim deadlines set by Fletcher for accomplishing the goal of securing contracts with six hospital-based providers. Moreover, she had failed to update paperwork designed to track her progress. The termination letter also stated that there had been complaints
After Ms. Taylor-Novotny's employment was terminated, her position was filled by Jared Fritz, a white male.
Ms. Taylor-Novotny filed a five-count complaint against Health Alliance in which she alleged that it had failed to reasonably accommodate her multiple sclerosis and had retaliated against her for seeking an accommodation, in violation of the ADA; that it had interfered with her rights under the FMLA; and that it had terminated her employment on the basis of her race and disability, in violation of Title VII and the ADA.
Following discovery, Health Alliance moved for summary judgment on all counts, and the district court granted the motion. Turning first to the ADA claims, the court noted that, in order to prevail on any of those claims — disparate treatment, failure-to-accommodate and retaliation — the plaintiff had to establish that "she was a qualified individual who, with or without reasonable accommodation, could perform the essential functions of the employment position."
Ms. Taylor-Novotny timely appealed the district court's judgment.
We review the district court's summary judgment order de novo. Chaib v. Indiana, 744 F.3d 974, 981 (7th Cir.), cert. denied, ___ U.S. ___, 135 S.Ct. 159, ___ L.Ed.2d ___ (2014).
We turn first to Ms. Taylor-Novotny's claim that Health Alliance terminated her employment on the basis of her disability in violation of the ADA. The ADA prohibits employers from "discriminat[ing] against a qualified individual on the basis of [her] disability in regard to... discharge ... and other terms, conditions,
Id. The second method is the "`indirect method,' originally developed in the Title VII context by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Id. at 685 (parallel citations omitted). According to this method, the employee first must establish a prima facie case by showing that: (1) "the plaintiff was a qualified individual with a disability" within the meaning of the ADA, Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1127 (7th Cir.2006); (2) she was meeting her employer's legitimate expectations, see Bunn, 753 F.3d at 685; (3) she nevertheless suffered an adverse employment action, see id.; and (4) similarly situated, non-disabled employees were treated more favorably,
With respect to her disability discrimination claims, Ms. Taylor-Novotny proceeds using only the indirect method. We turn first, therefore, to whether Ms. Taylor-Novotny is disabled under the ADA.
Here the parties do not dispute that Ms. Taylor-Novotny's multiple sclerosis is a "disability" within the meaning of the Act. See 42 U.S.C. § 12102(1) (defining "disability"). They do dispute, however, whether Ms. Taylor-Novotny is a "qualified individual" with a disability — "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position." Id. § 12111(8).
Ms. Taylor-Novotny maintains that she has established that she is a qualified individual with a disability. Claiming that our case law establishes that "regular attendance is not an essential function of every job,"
We cannot agree. Ms. Taylor-Novotny has not established that regular attendance was not required of someone in her position and the record certainly demonstrates that she could not perform this essential function. We have said that
Basden v. Prof'l Transp., Inc., 714 F.3d 1034, 1037 (7th Cir.2013) (citation omitted).
The ADA provides that "consideration shall be given to the employer's judgment as to what functions of a job are essential." 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(n). Health Alliance considered it essential that, regardless whether an employee was working from the Health Alliance office or from home, the employee be accessible at regular times to supervisors, staff, and customers. Ms. Taylor-Novotny has not identified any evidence in the record that suggests otherwise.
Even assuming, however, that Ms. Taylor-Novotny is a qualified individual with a disability within the meaning of the Act, we cannot conclude that she has established
Ms. Taylor-Novotny maintains that she established this element because she received overall ratings on her performance evaluations of "Average" or "Achieves Requirements." The record, however, is replete with evidence that Health Alliance was not satisfied with Ms. Taylor-Novotny's continued failures to arrive to work on time without notifying her supervisor. Ms. Taylor-Novotny received a rating of "Marginal" for attendance and punctuality on her very first performance evaluation. Her failure both to arrive at work on time and to alert her supervisor in advance of late arrivals were concerns articulated on every review Ms. Taylor-Novotny received and in several disciplinary meetings. Her last evaluation clearly informed her that she was not meeting Health Alliance's requirements in the area of "Dependability, Compliance and Professionalism."
Moreover, upon examination of the reports that she did make, the company concluded that it could not trust the accuracy of the reports that she was making. In its letter terminating Ms. Taylor-Novotny's employment, Health Alliance noted four occasions since her final written warning when she failed to report her time accurately, both on days that she reported to work and on days that she worked from home.
Ms. Taylor-Novotny submits, however, that even if her tardiness and her lack of communication with her supervisor were serious shortcomings in her performance, those shortcomings were shared by at least one comparable employee, Heather Wantland-Welch, whose employment was not terminated. "When a plaintiff produces evidence sufficient to raise an inference that the employer applied its legitimate expectations in a disparate manner, the second and fourth prongs of McDonnell Douglas merge, allowing the plaintiff to establish a prima facie case by establishing that similarly situated employees were treated more favorably." Grayson v. O'Neill, 308 F.3d 808, 818 (7th Cir.2002). "To meet his burden of demonstrating that another employee is `similarly situated,' a plaintiff must demonstrate that there is someone who is directly comparable to him in all material respects." Id. at 819.
Ms. Taylor-Novotny submits that Wantland-Welch is comparable because they both held the same job title, they "were hired at approximately the same time, performed the same type of tasks,... worked in the same department," and "had Jeff Polk as their department manager."
We do not believe that Ms. Taylor-Novotny has met her burden of establishing that she and Wantland-Welch were similarly situated. We note initially that, although Ms. Taylor-Novotny asserts that Wantland-Welch was not disciplined and was "allowed" to make up work, the record does not bear this out. Wantland-Welch testified that she was "written up" for "[b]eing late" and was not given "the opportunity to make up missed hours."
Moreover, "[w]e have cautioned that, in order to show that a coworker is similarly situated to a terminated employee, the employee must show that the other coworker had a comparable set of failings." Burks v. Wisconsin Dep't of Transp., 464 F.3d 744, 751 (7th Cir.2006) (internal quotation marks omitted). The record establishes that Wantland-Welch's problem with tardies began in 2010, and, during the first seven months of the year, she was tardy forty-nine times.
Ms. Taylor-Novotny has not met her burden of establishing that she is disabled, that she was meeting Health Alliance's
We turn now to Ms. Taylor-Novotny's claim that Health Alliance failed to accommodate her multiple sclerosis. The ADA requires employers to make reasonable accommodations for a qualified individual with a disability. 42 U.S.C. § 12112(b)(5)(A); see also id. § 12111(9) (giving examples of "reasonable accommodation[s]"). As noted previously, an employee is a qualified individual with a disability if, "with or without reasonable accommodation, [she] can perform the essential functions of the [job]." Id. § 12111(8); see also Majors v. Gen. Elec. Co., 714 F.3d 527, 533 (7th Cir. 2013). Ms. Taylor-Novotny bears the initial burden of establishing that she was a qualified individual who could perform the essential functions of her position. Majors, 714 F.3d at 534. Once she has shown that she is a qualified individual with a disability, she then must show that her employer was aware of her disability but failed to afford her a reasonable accommodation. Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001).
Assuming that Ms. Taylor-Novotny is a qualified individual with a disability under the ADA,
The record establishes that Health Alliance made good-faith efforts to accommodate Ms. Taylor-Novotny's multiple sclerosis: It sought information from her physician about her needs; it participated in the interactive process; and it made several adjustments to Ms. Taylor-Novotny's physical surroundings. Indeed, Ms. Taylor-Novotny identifies only one other accommodation — using her badge scans to report her arrival times — which, she claims, was reasonable, but that Health Alliance refused.
Health Alliance's refusal to accept this accommodation did not violate the ADA for one basic reason: Ms. Taylor-Novotny never identified any limitation related to her disability that this accommodation would alleviate. Ms. Taylor-Novotny, as well as her physician, stated that she was suffering from fatigue related to her multiple sclerosis. As there was no physical exertion attendant to calling Fletcher to alert her to an anticipated late arrival, she does not explain how the use of her badge scans would alleviate her illness-related fatigue.
Ms. Taylor-Novotny claims, however, that, in addition to her physical fatigue, she was suffering problems with "her memory and mental fatigue," which made her unable to comply with Health Alliance's reporting requirement.
We cannot reconcile the approach suggested by Ms. Taylor-Novotny with the language of the statute or our interpretive case law. We have held that "[t]he language of the ADA itself demonstrates that a reasonable accommodation is connected to what the employer knows about the specific limitations affecting an employee who is a qualified individual with a disability." Jackson v. City of Chicago, 414 F.3d 806, 813 (7th Cir.2005) (emphasis added). Moreover, we have explained that
Ms. Taylor-Novotny also maintains that Health Alliance violated the ADA by terminating her employment in retaliation for her request for accommodation. See 42 U.S.C. § 12203(a). Although retaliation may be shown either through the direct method or the indirect method, Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011), Ms. Taylor-Novotny proceeds only under the direct method of proof. Under that method, an employee must show that "(1) she engaged in statutorily protected activity; (2) she suffered an adverse action; and (3) there is a causal connection between the two." Cloe v. City of Indianapolis, 712 F.3d 1171, 1180 (7th Cir.2013). Both parties agree that Ms. Taylor-Novotny engaged in protected activity by requesting ADA accommodations and that
To show causation under the direct method, an employee must show that her protected activity was a "substantial or motivating factor" behind the adverse employment action. Id. She can do so by presenting either a direct admission of a retaliatory motive or a "convincing mosaic" of circumstantial evidence supporting an inference that a retaliatory animus was at work. Id. (internal quotation marks omitted). Our case law has identified three general categories of circumstantial evidence: (1) "suspicious timing, ambiguous statements oral or written, and other bits and pieces from which an inference of retaliatory intent might be drawn"; (2) "evidence, but not necessarily rigorous statistical evidence, that similarly situated employees were treated differently"; and (3) "evidence that the employer offered a pretextual reason for an adverse employment action." Id. Ms. Taylor-Novotny focuses on the first category — suspicious timing and ambiguous statements.
Ms. Taylor-Novotny submits that it is suspicious that, after years of documented tardiness, Health Alliance first issued verbal and written warnings in March 2010, around the time that she officially requested ADA accommodations for her multiple sclerosis. According to Ms. Taylor-Novotny, "if tardiness and reporting of tardiness was such a major issue ..., then disciplinary actions against [her] should have commenced long before March 19 & 30, 2010."
The record does not support this contention. Ms. Taylor-Novotny was disciplined as early as October 2007 for her tardiness.
More importantly, however, suspicious timing must be evaluated in the context of
Although the interactive process for accommodations officially began in March 2010, Health Alliance had been aware of Ms. Taylor-Novotny's multiple sclerosis since at least May 2008, when she submitted an FMLA certification and request. During the next two years, Health Alliance approved FMLA time to be used as needed, adjusted her schedule, and approved a work-from-home schedule — all in an effort to assist Ms. Taylor-Novotny in addressing the effects of her condition. Moreover, once the ADA interactive process began, Health Alliance accommodated Ms. Taylor-Novotny's condition in numerous ways that helped alleviate the fatigue attendant to her multiple sclerosis.
Finally, the record establishes that Health Alliance's concern with Ms. Taylor-Novotny's punctuality and accountability predates her request for reasonable accommodation by several years. Prior to Ms. Taylor-Novotny's request for reasonable accommodation, she was warned numerous times that her accountability for her tardies was substandard. We have recognized that a case based on suspicious timing is particularly weak where a plaintiff's protected activity follows "a performance warning for the very same conduct that ultimately led to h[er] termination." Id.
Ms. Taylor-Novotny maintains that, although suspicious timing is the main thrust of her retaliation claim, there is substantiating evidence of discriminatory animus in emails that Health Alliance staff exchanged in March 2010.
This email, while perhaps suggestive of irritation or doubt about Ms. Taylor-Novotny's medical needs, cannot support a claim of retaliation when it is evaluated in context. The focus of the email is Ms. Taylor-Novotny's need for, and possible abuse of, FMLA leave. This is a reasonable business concern of an employer, one that the FMLA itself acknowledges and accommodates. Section 2613(c)(1) of Title 29 provides:
Here, the employer, faced with accountability problems, simply discussed whether it ought to exercise a statutory right under the FMLA and seek verification that the request for leave was legitimate.
Finally, Ms. Taylor-Novotny contends that she was not informed of all of her work performance problems before she received her termination notice and that this failure on the part of the company is evidence of Health Alliance's retaliatory motive. The record does not support this argument.
Health Alliance's letter terminating Ms. Taylor-Novotny's employment listed her poor work performance as one of the bases for her termination and specifically set forth her failure to achieve interim goals for identifying and contacting hospital-based providers. Ms. Taylor-Novotny's deposition testimony makes clear that she was aware of both of these interim goals. She was asked if she recalled discussions with Fletcher concerning identifying hospital-based providers "as an independent goal to further the overall goal of negotiating six contracts for 2010"; Ms. Taylor-Novotny responded, "Yes."
In sum, the record does not support a determination that Ms. Taylor-Novotny's termination was retaliatory. An examination of the evidence yields no basis for the inferences that Ms. Taylor-Novotny would ask a jury to draw.
We next consider Ms. Taylor-Novotny's claim that Health Alliance interfered with
The FMLA requires employers to allow employees to take up to twelve weeks of unpaid leave for serious health conditions during any twelve-month period. 29 U.S.C. § 2612(a)(l). Employers may not interfere with an employee's rights under the FMLA or discriminate against employees who need FMLA leave. Id. § 2615. "To prevail on an FMLA interference claim, an employee must show that her employer deprived her of an FMLA entitlement." Ridings v. Riverside Med. Ctr., 537 F.3d 755, 761 (7th Cir.2008). Specifically, the "employee must establish that: (1) she was eligible for the FMLA's protections; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she was entitled." Id.
Ms. Taylor-Novotny maintains that Health Alliance interfered with her FMLA leave because it denied her request to limit her office time to two one-half days per week. She claims that, if she were "only running 30 minutes late on one of those mornings," then she should only have to use "½ hour of FMLA time and only use ½ hour of pay, instead of four hours of FMLA time and four hours of pay."
In order to make out an interference claim, Ms. Taylor-Novotny had to show that she made a request under the FMLA and that Health Alliance denied that request. During the 2010 recertification process for Ms. Taylor-Novotny's FMLA leave, her physician recommended that Ms. Taylor-Novotny's office time be limited to two half-days per week. Consistent with her physician's suggestion, Health Alliance approved FMLA leave for the two half-days when she would not be in the office.
Ms. Taylor-Novotny, however, declined to use her FMLA leave for the two half-days. Instead, Ms. Taylor-Novotny sought to alter her basic work-at-home arrangement so that she could work from home three full days and two half-days and be compensated for all of that time. Ms. Taylor-Novotny's request for this arrangement, therefore, was not a request under the FMLA, which requires employers only to provide up to twelve weeks of unpaid leave. Consequently, when Health Alliance denied that request, it did not deny Ms. Taylor-Novotny any right under the FMLA.
Ms. Taylor-Novotny also appears to contend that the result of Health Alliance's denial of her request to alter her work-at-home schedule was that she would be forced to take four hours of FMLA leave every time she was late only by one-half hour. If Health Alliance had reduced her FMLA leave by half-day increments every time she was late by just a few minutes, she might have been able to make out an interference claim. But there is simply no evidence in the record, however, that such a leave deduction ever occurred. On multiple occasions, Health Alliance had approved "intermittent time off as needed to manage [her] condition as specified by [her] physician."
Finally, Ms. Taylor-Novotny claims that Health Alliance interfered with her FMLA rights by not permitting her to use her badge scans to report her work hours. As we noted previously, the badge scans only recorded the time of entry, not the reason for Ms. Taylor-Novotny's late arrival. Consequently, the badge scans could not provide Health Alliance with the information that it needed to determine whether Ms. Taylor-Novotny's tardiness should be charged as FMLA leave. More importantly, however, this requirement did not deny Ms. Taylor-Novotny any right provided in the FMLA. Therefore, it cannot be the basis for an interference claim.
The judgment of the district court is affirmed. The defendant may recover its costs in this court.
AFFIRMED
R.31-2 at 49.
R.32-14.
