In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1723

Rebecca Lewis,

Plaintiff-Appellant,

v.

Holsum of Fort Wayne, Inc.,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 99 C 302--William C. Lee, Chief Judge.

Argued November 1, 2001--Decided January 28, 2002



  Before Flaum, Chief Judge, and Manion, and
Kanne, Circuit Judges.

  Kanne, Circuit Judge. Rebecca Lewis
filed a pro se complaint in the District
Court for the Northern District of
Indiana alleging that Holsum of Fort
Wayne, Inc., discriminated against her on
the basis of her race, disability, and
sex and that she was terminated from her
employment with Holsum in retaliation for
filing a claim with the Equal Employment
Opportunity Commission ("EEOC") in
violation of both the Americans with
Disabilities Act of 1990 ("ADA"), 42
U.S.C. 12201 et seq., and Title VII of
the Civil Rights Act of 1964. The
district court granted Lewis leave to
amend her complaint. Lewis added an
additional theory of recovery asserting
that she was denied medical leave and
terminated in violation of the Family
Medical Leave Act ("FMLA"), 29 U.S.C.
sec. 2601 et seq. The district court
granted summary judgment in favor of
Holsum. Lewis now appeals. Because this
court finds that the district court
correctly entered summary judgment in
favor of Holsum, we affirm.
I. History

  Lewis, an asthma sufferer, and her
husband, Mack Lewis ("Mack"), were both
employed at Holsum bakery. Because of her
asthma, Lewis worked under medical
restrictions to avoid flour dust. During
the summer of 1997, Lewis applied for a
transfer within Holsum. Holsum denied
Lewis’ request because it believed that
Lewis could not perform the essential
functions of the job due to her medical
restriction. After this denial, Lewis
filed a grievance with her union. Holsum
responded to that grievance and stated
that if Lewis could supply a note from
her doctor stating that her medical
restriction could be lifted, it would
consider her for the job. Lewis obtained
a statement from her family physician
which provided: "O.K. for Rebecca Lewis
to work without restrictions with flour
dust." Despite this note from her
physician, Lewis did not receive the
transfer. In October 1997, Lewis filed a
charge with the EEOC concerning the
denial of her transfer request. The EEOC
found no probable cause and issued a
Dismissal and Notice of Right-to-Sue.
However, Lewis never filed suit.

  On December 17, 1997, Lewis suffered an
asthma attack at work. She checked into
St. Joseph Medical Center and remained
there for four days, through the evening
of December 21, 1997. Her treating
physician, Dr. Yogesh M. Amin, M.D.,
wrote Lewis an off-work slip dated
December 18, 1997. The off-work slip
stated that Lewis "is currently
hospitalized" at St. Joseph Medical
Center. It did not indicate when Lewis
could return to work. Mack delivered the
off-work slip to Holsum and Jim Prater,
plant manager for Holsum, acknowledged
receiving the slip.

  Although Lewis was scheduled to work on
December 19, 1997, she did not appear and
Holsum designated the day as time off for
FMLA leave. From December 21, 1997
through December 28, 1997, Lewis and her
husband both had scheduled to take time
off from work using their vacation time.
Holsum scheduled Lewis to return to work
on December 29, 1997; she was also
scheduled to work on December 31, 1997
and January 2, 1998, that same week.
Lewis, however, did not return to work on
December 29, 1997, nor did she show up
for work on December 31, 1997 or January
2, 1998. Further, Lewis did not call into
work on any of these days to inform
Holsum of her need to be absent. At her
deposition, Lewis admitted that
throughout the relevant time period, she
had access to a telephone. Because Lewis
failed to call in or show up for work on
three consecutive days she was scheduled
to work, Prater decided to terminate
Lewis’ employment on January 2, 1998,
consistent with Holsum’s company rules,
its Attendance Policy, and a Holsum-Union
Labor Agreement. Lewis admitted at her
deposition that she was aware of Holsum’s
rule that terminates employment if an
employee fails to call in for three
consecutive scheduled work days.

  Lewis had a follow-up appointment with
Dr. Amin on January 2, 1998. Dr. Amin
gave her an off-work slip dated December
17, 1997 through January 8, 1998. The
slip further indicated that Lewis could
return to work on January 8, 1998. Mack
delivered the slip to Holsum on January
2, 1998. Prater does not dispute that
Mack delivered the slip on January 2.
However, Prater indicated at his
deposition that he did not receive the
slip until January 3, 1998.

  The district court granted summary
judgment in favor of Holsum on Lewis’
FMLA and retaliatory discharge claims.
The district court explained that Lewis
was properly terminated in accordance
with company policy and not in violation
of the FMLA. The court further found that
Lewis failed to establish an essential
element of her retaliatory discharge
claim, a causal connection between her
EEOC charge and her termination. Lewis
argues that the district court erred in
granting summary judgment in favor of
Holsum. She contends that because she was
on continuing FMLA leave and because she
turned in her off-work slip promptly on
January 2, 1998, she was terminated in
violation of the FMLA. Additionally,
Lewis argues that the district court
failed to consider other factors that
establish the causal connection between
her termination and her EEOC charge.

II.   Analysis

  We review a grant of summary judgment de
novo, viewing all of the facts, and
drawing all reasonable inferences
therefrom, in favor of the nonmoving
party. See Furnish v. SVI Sys., Inc., 270
F.3d 445, 448 (7th Cir. 2001). Summary
judgment is proper when the "pleadings,
depositions, answers to interrogatories,
and admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and
that the moving party is entitled to
judgment as a matter of law." See id.;
Fed. R. Civ. P. 56(c). If the nonmoving
party fails to make a sufficient showing
on an essential element of her case, the
moving party is entitled to judgment as a
matter of law because "a complete failure
of proof concerning an essential element
of the [nonmovant’s] case necessarily
renders all other facts immaterial."
Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986). We conclude that the district
court’s grant of summary judgment with
respect to Lewis’ FMLA claim was proper
because, contrary to Holsum’s company
rules, Attendance Policy, and Labor
Agreement, Lewis failed to notify Holsum
of her need for leave for three
consecutive work days following her
vacation. Additionally, the district
court correctly granted Holsum’s summary
judgment motion with respect to Lewis’
retaliatory discharge claim because Lewis
failed to establish a causal link between
her termination and her EEOC charge.

A.   FMLA

  The parties to this appeal do not
dispute that Lewis was qualified for FMLA
leave, but rather argue whether Lewis was
required to call in advance everyday she
was scheduled to work but was going to be
absent. Holsum’s company rule D-1 states
that written reprimands will be issued
for "[f]ailure to notify authorized
company personnel not less than one (1)
hour before scheduled reporting time when
unable to report for duty." After the
third offense, company rule D-1 calls for
the discharge of the employee. Holsum’s
Attendance Policy provides:

If given a return-to-work date by the
doctor, report this date when you call
in. If you actually return on this date,
no other phone call is required. If no
date is given, or the date is changed by
the doctor, you must call in advance
every day you are scheduled.

(Emphasis added). Lewis’ original
off-work slip provided no return to work
date. Consequently, following Lewis’
scheduled vacation, pursuant to company
policy, she was required to call in
advance of her absences on December 29
and 31, 1997, and January 2, 1998. Lewis
admitted at her deposition that she was
aware of the rule terminating employees
for failure to call in on three
consecutive scheduled work days. FMLA
regulations provide that "[a]n 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). Holsum’s company rules and
Attendance Policy are "usual and
customary" requirements. See Gilliam v.
United Parcel Serv., Inc., 233 F.3d 969,
971-72 (7th Cir. 2000).

  In Gilliam, we explained that the FMLA
does not "authorize employees on leave to
keep their employers in the dark about
when they will return." Id. at 971.
Gilliam requested leave to visit his
fiance and newborn child on a Friday. See
id. at 970. United Parcel Service
("UPS"), Gilliam’s employer, granted his
request. See id. Gilliam did not contact
his employer until the following Thursday
morning, at which point Gilliam was
informed that on Tuesday morning his
employment with UPS had been terminated.
See id. Gilliam failed to follow an
applicable collective bargaining
agreement provision that stated that an
employee on leave is required to call his
supervisor no later than the beginning of
the third day of leave, in order to let
the supervisor know how much more leave
would be required. See id. at 970-71.
Similarly, in the present case, Lewis
failed to comply with applicable company
rules and policies.

  Moreover, paragraph 5.7(c) of the Labor
Agreement between Holsum and the Union
states that "the relationship of Employer
and employee shall be considered broken
and terminated when any of the following
circumstances arise: . . . (c) An
employee is absent for three (3) working
days without notifying the Company unless
it is impossible for him to do so." Lewis
was in Fort Wayne, Indiana, on December
29 and 31, 1997, and on January 2, 1998.
Not only did Lewis indicate at her
deposition that during that time period
she had access to a telephone, but also,
Mack was working at Holsum as scheduled
and could have notified Holsum of Lewis’
need to be absent from work. Thus, it was
not impossible for Lewis to notify
Holsum. Similar to Gilliam’s discharge,
Lewis’ discharge does not violate the
FMLA. See id. at 972.

B.   Retaliatory Discharge

  Without direct evidence, Lewis
acknowledges that to establish a prima
facie case of retaliatory discharge, she
must show (1) that she engaged in a
statutorily protected activity; (2) that
she suffered an adverse action subsequent
to this activity; and (3) that there was
a causal link between the protected
activity and the adverse action. See
Rizzo v. Sheahan, 266 F.3d 705, 714 (7th
Cir. 2001); Oest v. Ill. Dept. of
Corrections, 240 F.3d 605, 616 (7th Cir.
2001). Upon this showing, the burden
shifts to Holsum to present a legitimate,
non-discriminatory reason for Lewis’
termination. See Rizzo, 266 F.3d at 715.
Once Holsum provides such a reason, the
burden shifts back to Lewis to
demonstrate that Holsum’s stated reason
for terminating her was merely a pretext
for retaliation. See id. The parties do
not dispute that Lewis engaged in a
statutorily protected activity (filing
the EEOC charge) and that she suffered an
adverse action (termination). The issue,
however, is whether Lewis has established
a causal link between the protected
activity and the adverse action.

  In support of her claim, Lewis argues
that an inference of retaliation can be
drawn from the timing of the events. She
filed her charge with the EEOC in October
1997 prior to her January 1998
termination. This attenuated sequence of
events, however, without more, is
insufficient to make out a prima facie
case of retaliation. See Oest, 240 F.3d
at 616 ("The inference of causation
weakens as the time between the protected
expression and the adverse action
increases, and then additional proof of a
causal nexus is necessary.") (quotation
omitted); see also Sauzek v. Exxon Coal
USA, Inc., 202 F.3d 913, 918 (7th Cir.
2000) ("Speculation based on suspicious
timing alone, however, does not support a
reasonable inference of retaliation;
instead, plaintiffs must produce facts
which somehow tie the adverse decision to
the plaintiffs’ protected actions. The
mere fact that one event preceded another
does nothing to prove that the first
event caused the second.") (citations
omitted). In Sauzek, a three-month
interval was too long to support an
inference of retaliation. See Sauzek, 202
F.3d at 918-19. Similarly, we find that
the interval between Lewis’ October 1997
EEOC charge and her January 1998
termination, without more, to be too long
to support an inference of retaliation.
Beyond timing, Lewis attempts to bolster
her retaliation claim with contentions
regarding Prater’s behavior and his
treatment of Lewis. This court finds,
however, that these contentions are
either not supported by the record or
that they are insufficient to establish a
causal link.

  Moreover, even if Lewis established a
prima facie case of retaliatory
discharge, her claim would still fail,
because, as discussed in Part II. A,
Holsum presented a legitimate, non-
discriminatory reason for terminating her
employment and Lewis has not provided
evidence that this reason is pretextual.
See Hoffman-Dombrowski v. Arlington Int’l
Racecourse, Inc., 254 F.3d 644, 654 (7th
Cir. 2001). Therefore, we find that the
district court correctly granted summary
judgment for Holsum on Lewis’ retaliatory
discharge claim.

III.   Conclusion

  For the foregoing reasons, we AFFIRM the
district court’s grant of summary
judgment in favor of Holsum.
