                               In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 13-1708

KIMBERLY SPURLING,
                                                  Plaintiff-Appellant,

                                  v.


C&M FINE PACK, INC.,
                                                 Defendant-Appellee.

         Appeal from the United States District Court for the
          Northern District of Indiana, Fort Wayne Division.
          No. 1:11-cv-00039 — Philip P. Simon, Chief Judge.


  ARGUED SEPTEMBER 23, 2013 — DECIDED JANUARY 13, 2014

   Before BAUER, KANNE, and HAMILTON, Circuit Judges.
   KANNE, Circuit Judge. This appeal follows the district court’s
entry of summary judgment in favor of C&M Fine Pack, Inc.,
(“C&M”) regarding its termination of Kimberly Spurling.
Spurling alleged that C&M discriminated against her in
violation of the Americans with Disabilities Act, as amended
(“ADA”), as well as the Family and Medical Leave Act of 1993
(“FMLA”). For the reasons set forth below, we affirm in part,
reverse in part, and remand for further proceedings.
2                                                 No. 13-1708

                        I. BACKGROUND
    A. Spurling’s Employment at C&M
   Spurling began working for C&M in February 2004 as a
Forming Inspector/Packer assigned to the third/night shift. In
2009, she began to exhibit a pattern of decreased consciousness
and alertness, for which she received several disciplinary
warnings. Spurling received a Final Warning/Suspension on
February 15, 2010. On that date, Spurling left her work site to
use the restroom and did not return for over twenty minutes.
Spurling was later found sleeping in the restroom by a co-
worker.
    Following her suspension, Spurling met with plant man-
ager Darrin Claussen and three of her supervisors. Claussen’s
meeting notes reflect that Spurling indicated that her sleep
issues were caused by medication that her doctor had pre-
scribed. She produced a note to the same effect, which stated,
“Pt was recently asked to discontinue medicine related to her
passing out—please excuse symptoms [at] work.”
    Spurling continued to experience difficulty remaining
conscious while at work. On April 12, 2010, Jim Cardenas,
Spurling’s shift supervisor, reported her for being completely
asleep while packing parts. He expressed concern for Spurl-
ing’s safety and the lack of improvement in her wakefulness.
  As a result of the continuing problem, Spurling attended a
meeting with management personnel, who issued her a Final
War ning /S uspe nsio n o n A p r il 1 5 . T h e F in al
Warning/Suspension note stated:
No. 13-1708                                                  3

     On 4/12/10 you were observed … with your head
     down at you[r] inspection station. To get your
     attention they had to yell your name at which time
     you snapped to and responded. This occurred
     several times during the shift … A review of your
     personnel file shows that in the last twelve months
     you have received three write-ups for performance
     and the last one a final warning with suspension for
     sleeping during your shift. Per our progressive
     discipline practice you have been suspended pend-
     ing determination of the level of discipline you will
     receive for this latest incident. You were informed
     that you could face termination of employment per
     our progressive disciplinary practice. You were
     informed that I would be in touch no later than
     Monday, April 19[,] with [C&M]’s decision. You
     were also informed that if you had further informa-
     tion that was relevant to our deliberation, you
     needed to contact me prior to Monday.
    Paul Bellant, the Human Resources Manager at C&M,
testified that it was typical for C&M to wait almost two weeks
for new information to be produced for consideration in
whether to terminate an employee. On April 16, Spurling
informed Bellant that her performance issues might be related
to a medical condition. Bellant met with Spurling to provide
her with a letter regarding the ADA and documentation for
Spurling’s physician to complete. The paperwork stated that it
should be returned no later than April 30.
   After Spurling received the paperwork, she alleges that she
requested time off to determine the extent of her medical
4                                                    No. 13-1708

issues. Bellant denies that Spurling ever requested time off,
and insists that she was not eligible for FMLA leave as she was
facing suspension pending termination of employment.
     That same day, April 16, after giving the ADA paperwork
to Spurling, Bellant emailed C&M’s Vice President of Human
Resources, Jeffrey Swoyer, concerning the action that C&M
wanted to pursue regarding Spurling. Bellant’s email recom-
mended that C&M terminate Spurling, but conceded that in
order to do so, Swoyer’s authorization was required. The email
acknowledges Bellant’s communication with Spurling and
states, “I have ADA paperwork that she will have her doctor
fill out to begin the interactive process regarding her ability to
perform … her job safely. I will put her on [leave of absence]
until process is completed.”
    Spurling met with her physician, Dr. James Beitzel, on April
21. He filled out the ADA paperwork and marked “yes” by the
box asking if the patient had a mental or physical disability
covered under the ADA. Dr. Beitzel wrote that Spurling
exhibited excessive drowsiness that affected her job performa-
nce and recommended periods of scheduled rest. Finally, he
wrote “add’n medical work up in progress” at the bottom of
the form.
    Directly after her medical examination, Spurling took the
paperwork to Bellant, who told her that he and Claussen
would review the material and then send it to the corporate
office for further review. Spurling alleges, and C&M disputes,
that Bellant indicated that C&M would have an interactive
meeting with her on April 26 to discuss her request for
reasonable accommodations. No meeting occurred.
No. 13-1708                                                                 5

    Regarding the import of Dr. Beitzel’s examination, Bellant
testified that the notation stating Spurling was suffering from
a condition covered by the ADA was insufficient to establish
that she had a disability. Likewise, Swoyer testified during his
deposition, “I don’t believe that the doctor is in a position to
make that determination. It is his opinion.” Instead of seeking
clarification from Dr. Beitzel regarding Spurling’s medical
evaluation, C&M chose to proceed with her termination.
    On April 28, Bellant emailed Swoyer his recommendation
to terminate Spurling. He stated, “[W]e recommend the
aggressive approach. Upon review of all the facts presented we
feel that we did the interactive process during the progressive
disciplinary process.” Bellant acknowledged that while “there
is an element of risk … we feel we did everything during the
discipline process.”
    C&M proceeded with the termination of Spurling and
informed her of its decision on April 28, 2010. On May 27, 2010,
Spurling received a definitive diagnosis for narcolepsy, which
in her case is manageable with proper medication.
    B. District Court Proceedings
   Spurling brought suit and made three claims under the
ADA: disability discrimination, failure of the interactive
process, and failure to provide reasonable accommodations.1


1
  Failure of the interactive process is not an independent basis for liability
under the ADA. Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001). An
employee must still show that she is a “qualified individual with a
disability” and that a reasonable accommodation would have allowed her
                                                              (continued...)
6                                                             No. 13-1708

She also claimed that C&M interfered with her rights under the
FMLA.
    The district court granted summary judgment in favor of
C&M on both claims, holding that an employer could not be
held accountable for discrimination under the ADA when both
the employer and employee are unaware that a condition
exists. The court stated that the central issue was one of
causation; that is, whether Spurling suffered an adverse
employment action as a result of her disability. It found that
the termination took place on April 15, when Bellant’s initial
termination recommendation was made. The court found that
C&M could not have discriminated against Spurling, as it had
terminated her prior to having any knowledge of her condi-
tion.
    For the same reason, Spurling’s FMLA claim failed. The
district court held that, since C&M was unaware of Spurling’s
qualifying condition, it could not be held liable for firing her
because of that condition. The FMLA requires employer
knowledge of the qualifying condition, which C&M did not
have when it terminated Spurling on April 15.




1
  (...continued)
to perform the essential functions of her job. Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996). Thus, “a plaintiff must
allege that the employer’s failure to engage in an interactive process
resulted in a failure to identify an appropriate accommodation for the
qualified individual.” Rehling v. City of Chi., 207 F.3d 1009, 1016 (7th Cir.
2000).
No. 13-1708                                                    7

                           II. ANALYSIS
   Spurling challenges the district court’s decision to grant
C&M summary judgment on both her ADA and FMLA claims.
Spurling argues that the district court erred in finding that
April 15 was the effective date of her termination. She alleges
that she was not actually fired until April 28, at which time
C&M knew that she suffered from a disability covered under
the ADA.
    We review a grant of summary judgment de novo, and
examine the record and all reasonable inferences in the light
most favorable to the non-moving party. Pagen v. TIN Inc., 695
F.3d 622, 624 (7th Cir. 2012). Summary judgment is proper if
the moving party “shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). We will reverse a grant of
summary judgment if a material issue of fact exists that would
allow a reasonable jury to find in favor of the non-moving
party. Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 449
(7th Cir. 2013).
   A. ADA Claim
    To establish a prima facie ADA claim, Spurling must show
that: “(1) she is disabled within the meaning of the ADA, (2)
she is qualified to perform the essential functions of her job
either with or without reasonable accommodation, and (3) she
has suffered from an adverse employment decision because of
her disability.” Dvorak v. Mostardi Platt Assoc., Inc., 289 F.3d
479, 483 (7th Cir. 2002).
8                                                       No. 13-1708

    1. Termination Date
    The district court relied on our holding in Hedberg v. Indiana
Bell Tel. Co., Inc., 47 F.3d 928, 932–33 (7th Cir. 1995), to find that
C&M did not have the requisite knowledge to fire Spurling
“because of” her disability. Citing that case, the district court
reasoned that an employer who fires an employee without
knowledge of her disability relies on other, non-disability
related, grounds. It determined that C&M fired Spurling on
April 15 and found that C&M’s lack of knowledge regarding
Spurling’s disability obviated the need to decide whether she
was actually disabled.
   The district court’s reliance on Hedberg as analogous to this
case is misplaced. Hedberg involved a restructuring of a
company, in which layoffs and firings were inevitable and
based on a neutral score given to employees. Hedberg received
a poor score, which he attributed to his disability, but
Hedberg’s employers had no knowledge of his disability when
they made their final decision to terminate his employment.
Hedberg stands for the well-established principle that an
employee cannot hold an employer liable under the ADA if the
employer has no knowledge of the employee’s disability. 29
C.F.R. app. § 1630.9 (“[A]n employer would not be expected to
accommodate disabilities of which it is unaware.”); see also
James v. Hyatt Regency Chi., 707 F.3d 775, 783 (7th Cir. 2013);
Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir.
1996); Hedberg, 47 F.3d at 932. But that is not the case here.
   The actual issue in this case is whether Bellant’s April 15
email sufficed to terminate Spurling. If it did, she was termi-
nated before C&M knew of her disability. But if it did not,
No. 13-1708                                                     9

C&M did not fire her until after learning of it. We have
adopted an “unequivocal notice of termination” test to
determine the date that an employee has been terminated.
Dvorak, 289 F.3d at 486. It states that “termination occurs when
the employer shows, by acts or words, clear intention to
dispense with the employee’s services.” Id. There are two
prongs to the test, both of which must be satisfied to fix the
date of termination. “First, there must be a final, ultimate, non-
tentative decision to terminate the employee … . Second, the
employer must give the employee ‘unequivocal’ notice of its
final termination decision.” Flannery v. Recording Indus. Ass’n
of Am., 354 F.3d 632, 637 (7th Cir. 2004).
    C&M’s April 15 email may have begun the investigation
into terminating Spurling, but it certainly did not manifest a
clear intention to dispense with her services. Nor was the
decision to terminate her ever communicated to her prior to
April 28. Spurling was technically suspended pending a
termination decision on April 15, not terminated outright.
Indeed, Bellant informed Spurling that she could present new
information that may be ‘relevant to our deliberation,’ which
she did. After Spurling informed C&M that she might have a
medical condition affecting her work, Bellant gave her ADA
paperwork to be filled out by her doctor; it would seem as
though C&M began to engage in the interactive process with
Spurling. When C&M learned of her disability, however, it
chose to take the “aggressive approach” and terminate her.
This occurred on April 28, which is the date that her actual
termination took place and when she received her unequivocal
notice. Thus, Spurling was fired after C&M knew that she had
a medical condition covered under the ADA.
10                                                  No. 13-1708

     2. Failure to Accommodate
    Having determined that Spurling’s termination was on
April 28, we next turn to whether C&M properly accommo-
dated Spurling after she notified them of her condition. We
conclude that it did not. An employee begins the accommoda-
tion process by notifying her employer of her disability; “at
that point, an employer’s liability is triggered for failure to
provide accommodations.” Hendricks-Robinson v. Excel Corp.,
154 F.3d 685, 693 (7th Cir. 1998) (internal quotation marks
omitted). After an employee has disclosed that she has a
disability, the ADA requires an employer to “engage with the
employee in an ‘interactive process’ to determine the appropri-
ate accommodation under the circumstances.” E.E.O.C. v. Sears,
Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005) (quoting Gile v.
United Airlines, Inc., 213 F.3d 365, 373 (7th Cir. 2000)).
    Rather than collaborate with Spurling or her doctor to find
a reasonable accommodation, C&M chose to turn a blind eye
and terminate her. It did not seek further clarification from
either Spurling or her doctor and disregarded the medical
evaluation altogether. This is hardly engaging with Spurling to
determine if a reasonable accommodation could be made. See
Bultemeyer v. Fort Wayne Comm. Sch., 100 F.3d 1281, 1286 (7th
Cir. 1996) (employer should have sought an explanation from
the doctor if it had concerns with the employee’s medical
diagnosis). And while an employer’s failure to engage in the
interactive process alone is not an independent basis for
liability, it is actionable “if it prevents identification of an
appropriate accommodation for a qualified individual.” Basden
v. Prof’l Transp., Inc., 714 F.3d 1034, 1039 (7th Cir. 2013).
Accordingly, Spurling must show that a reasonable accommo-
No. 13-1708                                                  11

dation could be made that would enable her to carry out the
essential functions of her job. Id. The evidence suggests that a
reasonable accommodation was readily available; Spurling
simply needed further medical testing and a prescription to
control her narcolepsy.
    Once C&M received notice of Spurling’s disability on April
21, it was incumbent upon them to determine, by engaging in
an interactive process with Spurling, whether a reasonable
accommodation could be made. See Hedberg, 47 F.3d at 934
(“[I]f an employee tells his employer that he has a disability,
the employer then knows of the disability, and the ADA’s
further requirements bind the employer.”). This process entails
working with the disabled individual to produce a reasonable
solution if one is available. 29 C.F.R. app. § 1630.9 (“Once an
individual with a disability has requested provision of a
reasonable accommodation, the employer must make a
reasonable effort to determine the appropriate accommodation.
The appropriate reasonable accommodation is best determined
through a flexible, interactive process that involves both the
employer and the individual with a disability.”).
   C&M never engaged in an interactive attempt to find a
reasonable accommodation as claimed in the April 28 email
from Bellant to Swoyer (“we feel that we did the interactive
process during the progressive disciplinary process.”). Spurl-
ing returned with C&M’s ADA form, on which Dr. Beitzel
indicated that she had a condition covered under the ADA.
Despite this notation, C&M never contacted Dr. Beitzel to
determine the severity of Spurling’s ADA claim or how it
might be able to provide a reasonable accommodation.
Following a series of emails, it decided to terminate her,
12                                                  No. 13-1708

despite the “element of risk.” And, while it is true that Spurl-
ing presented the information to C&M after receiving her
Suspension Pending Termination, she did so at C&M’s behest.
C&M properly began the interactive process as envisioned by
the ADA, but failed to carry it through.
     B. FMLA Claim
    To establish her FMLA claim, Spurling must show: (1) she
was eligible for FMLA protection; (2) C&M is covered by the
FMLA; (3) she was entitled to take leave under the FMLA; (4)
she provided sufficient notice of her intent to take leave to
C&M; and (5) C&M denied her FMLA benefits to which she
was entitled. Goelzer v. Sheboygan Cnty., Wis., 604 F.3d 987, 993
(7th Cir. 2010). For the purposes of this case, we are only
concerned with the fourth element: whether Spurling provided
sufficient notice to C&M regarding her “serious health
condition.” 29 C.F.R. § 825.100. If she did not, then C&M had
no duty to grant her leave.
    We first note that a “serious health condition entitling an
employee to FMLA leave means an illness, injury, impairment
or physical or mental condition that involves inpatient care …
or continuing treatment by a health care provider[.]” 29 C.F.R.
§ 825.113(a). The latter phrase would likely qualify Spurling
under the FMLA, so long as she alerted her employer to the
seriousness of her health condition. Nicholson v. Pulte Homes
Corp., 690 F.3d 819, 826 (7th Cir. 2012).
  Spurling’s statement to Bellant on April 16 (and prior to her
medical evaluation), was simply that she needed time off to
No. 13-1708                                                               13

figure out why she was falling asleep.2 Given the circum-
stances of this case, this can hardly be deemed as notifying
C&M of a “serious health condition.” An employee must
provide her employer with sufficient information to notify
them that she has a serious health condition that requires
FMLA protection. See Stevenson v. Hyre Elec. Co., 505 F.3d 720,
725 (7th Cir. 2012). We cannot hold that the employer must
divine or investigate whether an employee has a condition
covered under the FMLA at any minor request for leave. We
have explicitly rejected that position, as the majority of leaves
requested by employees do not give rise to FMLA protections.
Aubuchon v. Knauf Fiberglass GmbH, 359 F.3d 950, 953 (7th Cir.
2004). To hold otherwise would “place a substantial and
largely wasted investigative burden on employers.” Id.
Therefore, “unless the employer already knows that the
employee has an FMLA-authorized ground for leave, … the
employee must communicate the ground to him; he cannot just
demand leave.” Id.
    Spurling’s remark to Bellant fails to meet this threshold. She
did not inform him that she had a “serious health condition”
nor did she have any personal knowledge of her own illness
that would allow her to put forth such information. Spurling
worked the night shift at C&M and many employees exhibited
sleeping issues during that shift, as Spurling conceded witness-


2
  While the parties dispute that Spurling made a statement regarding leave
from work, for the purposes of summary judgment we view the record in
the light most favorable to the non-movant. Foley v. City of Lafayette, 359
F.3d 925, 928 (7th Cir. 2004). Therefore, we accept Spurling’s account of the
April 16 discussion.
14                                                  No. 13-1708

ing while at work. Furthermore, Spurling had problems
remaining awake in the past and had previously attributed the
behavior to medication. Thus, Spurling’s sleep issues were not
something novel that would automatically alert an employer
that something was amiss; sleeping on the job was a difficulty
that many night shift employees endured and one that Spurl-
ing had already been disciplined for. Cf. Byrne v. Avon Products,
Inc., 328 F.3d 379, 380 (7th Cir. 2003) (drastic change in behav-
ior of a model employee could suffice as proper notice of a
serious medical condition under the FMLA). Spurling’s vague
assertion that she needed time off to determine why she was
falling asleep was not sufficient to put C&M on notice that she
had a serious medical condition that required FMLA leave.
                         III. CONCLUSION
    Spurling established disputed issues of material facts as to
whether C&M failed to properly engage in the interactive
process as required by the ADA, but did not provide sufficient
notice to establish a claim under the FMLA. Accordingly, we
AFFIRM the entry of summary judgment for C&M on the
FMLA claim, REVERSE the entry of summary judgment in
favor of C&M on Spurling’s ADA claim and REMAND for
further proceedings consistent with this opinion.
