In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3942

Reginald Gilliam,

Plaintiff-Appellant,

v.

United Parcel Service, Inc.,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:98CV0442RM--Robert L. Miller, Jr., Judge.

Submitted September 18, 2000--Decided November 29, 2000



  Before Easterbrook, Ripple, and Williams, Circuit
Judges.

  Easterbrook, Circuit Judge. An employee who fails
to report to work for three consecutive days and
does not notify the company by the beginning of
the scheduled starting time on the third day is
in trouble under Article 16(d) of the collective
bargaining agreement between United Parcel
Service and the Teamsters Union. Reginald Gilliam
violated this rule and was fired. He took off
Friday, August 22, 1997, with the permission of
Allen Kinsey, his supervisor. Kinsey expected
Gilliam to return to work the next Monday;
Gilliam, however, thought that his leave had an
indefinite duration and did not try to get in
contact with Kinsey until the following Thursday
(and did not succeed until Friday, August 29).
Kinsey gave Gilliam the bad news: by failing to
call in by the start of his shift on Tuesday,
August 26 (the third working day of leave),
Gilliam had abandoned his job. This is an
understanding of the collective bargaining
agreement that Gilliam and the union might have
challenged--perhaps on the ground that by
granting leave Kinsey extended the notice period
to Wednesday or even later, depending on how much
leave Gilliam reasonably thought Kinsey had
authorized--but arbitration did not occur, and
Gilliam does not say that his union violated its
duty of fair representation. Like the district
court, therefore, we take it as established that
Article 16(d) entitled UPS to act as it did. We
must decide whether the application of this
collective bargaining agreement to Gilliam
violates the Family and Medical Leave Act, 29
U.S.C. sec.sec. 2601-54.

  Gilliam took time off to be with his fiancee,
Diana Nukes, after she delivered their child. The
birth occurred on August 20, 1997, when Nukes was
in her home town of Columbus, Ohio, and Gilliam
was working in Elkhart, Indiana. Gilliam had
known about the pregnancy since November 1996 but
did not tell UPS that he wanted time off until the
day after Nukes gave birth--although the
collective bargaining agreement, which like the
FMLA affords unpaid family leave, requires 10
days’ notice. During work hours on August 21
Gilliam told Kinsey that he wanted leave to be
with Nukes. Kinsey waived the 10-day notice rule
and granted Gilliam’s request. Gilliam told
Kinsey that he would be back in a "couple" of
days (or "a few" days; recollections differ).
Kinsey understood this to mean a few calendar
days. Gilliam did not get in touch with UPS for a
week. By then it was too late, under UPS’s
understanding of the collective bargaining
agreement. But Gilliam believes that the FMLA
entitled him to stay away from work for up to 120
days without informing his employer when he would
return.

  The district court understood Gilliam’s claim as
one asserting that UPS had retaliated against him
for using FMLA leave and deemed it insufficient
under the framework that King v. Preferred
Technical Group, 166 F.3d 887 (7th Cir. 1999),
adopts for such claims. 1999 U.S. Dist. Lexis
21749, 5 Wage & Hour Cas. 2d 1853 (N.D. Ind. Oct.
13, 1999). Yet the thrust of Gilliam’s claim is
substantive; after all, UPS did not think that he
had taken FMLA leave in the first place. He
contends that the FMLA not only gave him an
entitlement to time off (which he enjoyed) but
also required UPS to take him back at the end of
the leave. 29 U.S.C. sec.2614(a)(1)(A); Rice v.
Sunrise Express, Inc., 209 F.3d 1008 (7th Cir.
2000); Diaz v. Fort Wayne Foundry Corp., 131 F.3d
711 (7th Cir. 1997). Using the language of
"retaliation" to analyze such a contention
detracts attention from what matters. Diaz, 131
F.3d at 712-13. Still, for Gilliam the difference
between substantive and retaliation approaches
does not matter, because his core difficulty is
one the district judge identified: the FMLA does
not provide for leave on short notice when longer
notice readily could have been given. Nor, we
add, does it authorize employees on leave to keep
their employers in the dark about when they will
return.

  Although the FMLA does not specify details such
as how leave is sought, and on what notice,
implementing regulations issued by the Department
of Labor fill the gap. One of these, 29 C.F.R.
sec.825.302(a), provides that an employee must
give 30 days’ notice "if the need for the leave
is foreseeable based on an expected birth" or
other predictable event. That regulation fits
Gilliam’s situation to a T. He knew many months
in advance when Nukes was likely to deliver their
child. Although delivery dates vary around the
nine-month norm, the need for family leave could
be anticipated and notice given. Gilliam did not
ask for leave until the day after his child’s
birth, however, and this entitled UPS to require
Gilliam to wait 30 days longer. 29 C.F.R.
sec.825.304(b). Kinsey did not do this--did not
even insist that Gilliam wait out the 10 days
required by the collective bargaining agreement.
Gilliam says that by waiving the notice
requirement UPS put him on FMLA leave. Neither
employees nor employers need mention the FMLA by
name. 29 C.F.R. sec.825.303(b). But it does not
follow that all family leave must be under the
FMLA unless the employer negates that possibility
by imposing a 30-day delay. Perhaps Gilliam’s
leave was under the collective bargaining
agreement; perhaps it was simply a humane step by
a caring supervisor willing to bend the rules.
Employees would not gain in the long run by
converting all humanitarian leaves and
discretionary acts into leaves governed by the
strictures of the FMLA, for then employers would
have powerful reasons to say no when requests
like Gilliam’s are made in the future.

  Let us assume, however, that Kinsey’s grant of
permission to take a few days off put Gilliam on
FMLA leave. What follows? He was not penalized for
taking Friday off, for failing to report to work
on Monday, or even for remaining with Nukes and
their baby the rest of that week. Gilliam was
fired because he did not call, by Tuesday
morning, to tell UPS how long he would be away.
Notice enables an employer to keep its business
operating smoothly by bringing in substitutes or
hiring temporary help. And if we were to treat
Friday as a pre-authorized day postponing the
notice requirement to Wednesday morning (though
this would be a subject for a labor arbitrator,
not a court), Gilliam did not meet that deadline
either; he first tried to contact UPS on Thursday
afternoon, and then only after learning that
Kinsey was trying to locate him. "An employer may
. . . require an employee to comply with the
employer’s usual and customary notice and
procedural requirements for requesting leave." 29
C.F.R. sec.825.302(d). One of those "usual and
customary" requirements at UPS is that the
employee let his supervisor know, no later than
the beginning of the third working day of leave,
how much more time will elapse before the
employee returns to work. Although sec.825.302(d)
adds that an employer’s rules may not be used to
delay FMLA leave if the employee gives notice that
is otherwise timely, this means only that an
employer may not insist on more than 30 days’
notice, which UPS did not do. Nothing in the FMLA
or the implementing regulations prevents an
employer from enforcing a rule requiring
employees on FMLA leave to keep the employer
informed about the employee’s plans. Gilliam’s
discharge therefore did not violate federal law.

Affirmed
