In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1930

Linda S. Collins,

Plaintiff-Appellant,

v.

NTN-Bower Corporation, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of Illinois.
No. 00-1053--Joe Billy McDade, Chief Judge.

Submitted November 19, 2001/*--Decided December 5, 2001



  Before Bauer, Easterbrook, and Evans,
Circuit Judges.

  Easterbrook, Circuit Judge. After
receiving twelve informal and four formal
warnings for deficient attendance, Linda
Collins was fired when she called in sick
for two days in March 1998. That was all
she said: that she was "sick." Her
employer deemed this inadequate in light
of Collins’s spotty attendance record.
But in this litigation under the Family
and Medical Leave Act, 29 U.S.C. sec.sec.
2601-54, which entitles employees to as
much as 12 weeks’ unpaid leave per year
in order to cope with major illnesses and
important family events, Collins contends
that she has a covered condition:
depression. In a deposition Dr. Ronald K.
Leonard testified that Collins is
incapacitated by depression between 10%
and 20% of the time, and that episodes
may occur without warning. If this is so
then it is doubtful that the Act has much
to offer Collins. Courts have been
reluctant to read the fmla as allowing
unscheduled and unpredictable, but
cumulatively substantial, absences, when
the Americans with Disabilities Act
protects only persons who over the long
run are capable of working full time. See
EEOC v. Yellow Freight System, Inc., 253
F.3d 943 (7th Cir. 2001) (en banc);
DeVito v. Chicago Park District, 270 F.3d
532 (7th Cir. 2001). Collins is not
suffering from an acute condition that
will improve with time off; instead she
asserts a right to take unscheduled leave
at a moment’s notice for the rest of her
life. This implies that she is not
qualified for a position where reliable
attendance is a bona fide requirement,
and a person not protected by the ada may
be discharged. Yet Collins did not skip
even 10% of working days before her
discharge; her depression does not seem
to be as severe as Dr. Leonard believes.
Thus like the district court we focus on
the question whether Collins complied
with the requirement that she notify her
employer of the need for fmla leave.

  The fmla requires health-related leave
only for employees who suffer from "a
serious health condition". 29 U.S.C.
sec.2612(a)(1)(D). Depression may meet
this description, and we shall assume
that Collins suffers from clinical
depression, which certainly meets it--but
Collins did not let her employer know the
reason for her absence, and notice is
essential even for emergencies. See 29
C.F.R. sec.825.303. "Sick" does not imply
"a serious health condition". The
regulation allows notice to be delayed a
day or two (an emergency may interfere
with giving notice as well as with
working), but Collins took much longer to
let her employer know why she did not
show up. Although workers need not
expressly assert rights under the fmla,
see sec.825.303(b)-- firms should be able
to figure out for themselves the legal
rules governing leave, once they know
that a serious medical condition or
family situation is ongoing, see Stoops
v. One Call Communications, Inc., 141
F.3d 309, 312 (7th Cir. 1998)--employers
still are entitled to the sort of notice
that will inform them not only that the
fmla may apply but also when a given
employee will return to work. Gilliam v.
United Parcel Service, Inc., 233 F.3d 969
(7th Cir. 2000); Diaz v. Ft. Wayne
Foundry Corp., 131 F.3d 711 (7th Cir.
1997). Collins did not furnish that kind
of notice until this litigation--far too
late, the district judge held when
granting summary judgment to her
employer.

  On appeal Collins observes that
sec.825.303, which deals with situations
in which advance notice is impossible,
differs from sec.825.302, which
establishes the normal requirement of 30
days’ notice. Section 825.302(c)
provides: "An employee shall provide at
least verbal notice sufficient to make
the employer aware that the employee
needs fmla-qualifying leave, and the
anticipated timing and duration of the
leave." No comparable language appears in
sec.825.303. This means, Collins insists,
that when time is short an employee need
not let the employer know that the leave
is "fmla-qualifying"--in other words, need
not ever let the employer know that the
medical condition is "serious." This is a
lot to read into silence, especially when
the premise of the argument is so
doubtful. Collins treats sec.825.302 as
handling exclusively those situations in
which advance notice is possible. Yet its
language is not so limited; it deals with
all particulars of notice, and then
sec.825.303 states an exception to the
timing rule. On this understanding the
substance and other particulars of notice
must conform to sec.825.302, and only the
timing of its delivery is affected by
sec.825.303. See Satterfield v. Wal-Mart
Stores, Inc., 135 F.3d 973 (5th Cir.
1998).

  Sometimes absence is required by an
event that could not be predicted: for
example, a family member who dies
unexpectedly. That is not Collins’s
situation. Depression did not come on her
overnight. In this suit she contends that
it had been developing for years and that
she had mentioned the problem to
supervisors early in 1997, a year before
the absence that led to her discharge.
Once Collins knew that she had a problem,
she could predict that this would lead
her to miss work on occasion, and she
could have given the notice contemplated
by sec.825.302 long before March 1998.
Then when depression incapacitated her on
a particular day she could have made
clear the "serious" nature of her
condition by referring to knowledge
already in the employer’s possession. A
reference to being "sick" not only
withheld important information from the
employer but likely threw it off the
scent. Certainly it did not suggest to
the employer that the medical condition
might be serious or that the fmla
otherwise could be applicable. See Price
v. Ft. Wayne, 117 F.3d 1022, 1026 (7th
Cir. 1997). Like the district court,
therefore, we conclude that Collins
failed in her obligation to tell the
employer enough to suggest that the fmla
may be pertinent.

Affirmed

FOOTNOTE

/* Appellant waived any entitlement to oral argument
in this case, and the court agreed that the case
was appropriate for decision on the briefs and
record.
