The district court observed that the parties’ filings were 1

inconsistent in their spelling of the plaintiff’s name. Noting that

the plaintiff signs her name “de la Rama,” the court conformed

its opinion to this spelling. Like the district court, we defer to

the plaintiff’s spelling of her name.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1156

ELIZABETH DELARAMA,

Plaintiff-Appellant,

v.

ILLINOIS DEPARTMENT OF HUMAN SERVICES, and

MARY ZUKOWSKI, individually and in her official capacity,

Defendants-Appellees.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 05 CV 5163—Milton I. Shadur, Judge.

____________

ARGUED MAY 5, 2008—DECIDED SEPTEMBER 2, 2008

____________

Before CUDAHY, POSNER and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge. Elizabeth de la Rama brought 1

this lawsuit against her employer alleging discrimination
2 No. 07-1156

in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq., interference with her rights

under the Family and Medical Leave Act (FMLA), 29

U.S.C. § 2601 et seq. and common law defamation. The

district court granted the defendants’ motion for summary judgment and de la Rama appeals. We affirm.

I. Background

De la Rama is a Filipino-American who is employed as

a registered nurse at Chicago-Read Mental Health

Center (Chicago-Read), a residential facility for mentally

ill adults that is run by the Illinois Department of Human

Services (the Department). From January 2004 to January 2005, Mary Zukowski was de la Rama’s supervisor.

Pursuant to Chicago-Read’s leave policy, de la Rama

received 12 sick days per year, which accrued at a rate

of one sick day per month. De la Rama called in sick from

July 19, 2004 through August 19, 2004. Although she

was diagnosed with fibromyalgia in early August, she did

not convey this information to her employer until much

later. Instead, de la Rama sporadically submitted notes

from physicians stating that she was ill. For example, on

July 21, 2004, de la Rama called in sick but showed up

at Chicago-Read that afternoon during a coworker’s

retirement party. At the party she attempted to give

Zukowski a doctor’s note explaining that she was suffering from back pain and was unable to return to work

for one week. Zukowski told her that they should

discuss the matter later. When de la Rama could not find

Zukowski after the party, she left the note with a coworker.
No. 07-1156 3

Although de la Rama had exhausted her sick leave by

this point, she continued to call in sick without explaining the nature of her illness.

On July 27, 2004, de la Rama provided her employer

with a doctor’s note stating that she was under medical

care and could not return to work until August 10,

2004. The next day she spoke with a Human Resources

Specialist who told her that in order to request medical

leave, she needed to submit a written request and a

completed “CMS 95” form. De la Rama did not submit a

written request or a CMS 95 form and did not return to

work on August 10. She had no further contact with

Chicago-Read until August 19, when the Associate Director of Nursing called her to discuss her absence. On

August 20, she submitted three more doctor’s notes, one

of which stated that she could return to work on August 23. She also submitted a note stating that she was

requesting medical leave beginning on July 16, 2004 until

an unknown date. The notes did not state her condition

nor describe its severity. De la Rama did not return to

work on August 23.

On October 4, 2004, de la Rama submitted a completed

CMS 95 form, which explained that she suffered from

fibromyalgia and a herniated disk. Chicago-Read retroactively granted her leave to the date of her last sick day,

September 2, 2004. De la Rama returned to work on

January 3, 2005. At de la Rama’s request, she was assigned

to a different unit under a new supervisor upon her return.

While de la Rama was absent from work in July and

August, the work days she missed were treated as unau-
4 No. 07-1156

In addition to the claims at issue in this appeal, de la Rama 2

brought claims under 42 U.S.C. §§ 1981 and 1983 against

(continued...)

thorized absences (UAs). She accrued a total of 24 UAs.

After de la Rama returned to work in 2005, she, her union

representative and her new supervisor attended a

pre-disciplinary meeting regarding these UAs. The

parties decided that de la Rama would not be disciplined for the UAs but that future UAs would trigger a

disciplinary proceeding against her. De la Rama pursued

a grievance in order to remove the UAs from her employment record. At the third-level grievance hearing, management and de la Rama’s union representatives agreed

that the absences would remain on her record but would

never be used in any disciplinary proceedings against her.

On September 9, 2005, after receiving a right to sue

letter from the Equal Employment Opportunity Commission, de la Rama filed this lawsuit alleging that the

Department had discriminated against her because of her

race and national origin. In addition, de la Rama complained that the Department violated the FMLA by refusing to allow her to take leave for a serious medical condition. She also brought a common law defamation claim

against Zukowski, alleging that Zukowski falsely claimed

that de la Rama’s absences were unauthorized and that

Zukowski made false statements about her during the

third-level grievance hearing. On January 5, 2007, the

district court granted summary judgment for the defendants. This timely appeal followed.2
No. 07-1156 5

(...continued) 2

Zukowski and a claim under the Americans with Disabilities Act

(ADA) against the Department. The district court dismissed

her § 1981 and § 1983 claims and disposed of her ADA claim

on summary judgment. De la Rama does not appeal the

district court’s disposition of these claims.

II. Discussion

We review a grant of summary judgment de novo,

“viewing all facts and the reasonable inferences drawn

therefrom in the light most favorable to the nonmoving

party.” Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006).

Summary judgment is appropriate only “where ‘there is

no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.’ ” Id.

(quoting FED. R. CIV. P. 56(c)). A nonmoving party cannot

defeat a motion for summary judgment with bare allegations. Smith v. Potter, 445 F.3d 1000, 1006 (7th Cir. 2006);

see also Rozskowiak v. Vill. of Arlington Heights, 415 F.3d 608,

612 (7th Cir. 2005) (to defeat summary judgment,

nonmoving party must adduce more than “a scintilla

of evidence” in support of its claim). Rather, a party

opposing summary judgment must present “evidence on

which the jury could reasonably find for the nonmoving

party.” Rozskowiak, 415 F.3d at 612.

A. Employment discrimination claim

Title VII of the Civil Rights Act of 1964 prohibits

an employer from discriminating against an employee
6 No. 07-1156

A plaintiff who proceeds under the direct method of proof 3

must adduce direct or circumstantial evidence that shows that

her employer’s decision to take an adverse employment action

against her was motivated by a discriminatory purpose. Rhodes,

359 F.3d at 504. Under the indirect method, a plaintiff must

establish a prima facie case of discrimination by showing that

she is a member of a protected class, that she was performing

her job satisfactorily, that she suffered an adverse employment action and that she was treated less favorably than

similarly situated individuals. Id. “If the plaintiff establishes

a prima facie case, the employer must articulate a legitimate,

non-discriminatory reason for its employment action, and

in response the plaintiff must prove that the employer’s proffered non-discriminatory reason is a pretext for discrimination.” Id.

“with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s

race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a)(1). “A plaintiff may prove intentional employment discrimination under Title VII by using either

the ‘direct method’ or ‘indirect method.’ ” Rhodes v. Ill.

Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004). Both 3

methods require the plaintiff to show that she suffered a

materially adverse employment action. Id. The district

court concluded that de la Rama did not suffer any cognizable adverse employment action and thus, that she

could not proceed on her discrimination claim under

either the direct or indirect method of proof. On appeal,

she disputes this finding, arguing that the recording

and preservation of 24 UAs on her record constitutes a

materially adverse employment action. We disagree.
No. 07-1156 7

We have explained that in order to be actionable,

“adverse actions must be materially adverse . . . meaning

more than a ‘mere inconvenience or an alteration of job

responsibilities.’ ” Oest v. Ill. Dep’t of Corr., 240 F.3d 605,

612 (7th Cir. 2001) (quoting Crady v. Liberty Nat’l Bank &

Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). “[A] ‘materially

adverse change might be indicated by a termination of

employment, a demotion evidenced by a decrease in

wage or salary, a less distinguished title, a material loss

of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.’ ” Id. at 612-13 (citation omitted). An employee’s unhappiness with her employer’s conduct or

decision is insufficient to support a claim under Title VII.

See Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002).

Rather, “[a]t minimum, the employee must be able to show

a quantitative or qualitative change in the terms or conditions of employment.” Haywood v. Lucent Techs., Inc., 323

F.3d 524, 532 (7th Cir. 2003). Thus, we have concluded

that negative performance evaluations, standing alone,

are not cognizable adverse employment actions. See, e.g.,

Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 739 (7th Cir.

2006); Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854,

862 (7th Cir. 2005); Lucas v. Chi. Transit Auth., 367 F.3d 714,

731 (7th Cir. 2004); Smart v. Ball State Univ., 89 F.3d 437, 442

(7th Cir. 1996). Similarly, in Ribando v. United Airlines, Inc.,

200 F.3d 507 (7th Cir. 1999), we held that a “letter of

concern” that was placed in the plaintiff’s personnel file

after she was investigated for allegedly making a harassing

sexual comment did not constitute a materially adverse

employment action. Id. at 511.
8 No. 07-1156

We discern no reason to treat the UAs in this case

differently than we have treated negative performance

evaluations or the inclusion of a letter of concern in an

employee’s personnel file. Although we have defined the

term “adverse action” broadly and have emphasized

the importance of considering the facts of each case in

assessing whether an adverse action is material, see Bryson

v. Chi. State Univ., 96 F.3d 912, 916 (7th Cir. 1996), the

undisputed facts of this case persuade us that the UAs do

not in and of themselves constitute a materially adverse

action. Pursuant to the agreement reached by de la Rama

and her employer at the third-level grievance hearing,

the UAs on her record do not have any effect on the terms

or conditions of her employment. De la Rama attempts to

rely on Russell v. Bd. of Trs. of the Univ. of Ill. at Chi., 243

F.3d 336 (7th Cir. 2001), to support her contention that

the UAs constitute a materially adverse action. But in

Russell, we concluded that a five-day disciplinary suspension was materially adverse because Russell lost five

days of pay and her once-spotless record “now includes

a formal finding that she ‘falsified’ her time records and

committed ‘theft of services.’ ” Id. at 341. The disciplinary

action in Russell visited tangible consequences on the

plaintiff, an important fact that distinguishes that case

from the present one. In this case, de la Rama has not

alleged any material change in the conditions of her

employment—she was not fired or demoted, she

suffered no financial consequences and her responsibilities

have not changed. Because de la Rama has not alleged

that any tangible consequences resulted from the UAs,

Lucas, 367 F.3d at 731, we affirm the district court’s con-
No. 07-1156 9

clusion that she did not suffer a materially adverse employment action and its entry of summary judgment for

the defendants on her discrimination claim.

B. FMLA claim

The FMLA entitles eligible employees to up to twelve

weeks of leave during any twelve-month period if the

employee is unable to perform the functions of her position on account of a serious health condition. See Harrell v.

U.S. Postal Serv., 445 F.3d 913, 919 (7th Cir. 2006) (citing

29 U.S.C. § 2612(a)(1)). It also prohibits an employer

from interfering with an employee’s attempt to exercise

her right to medical leave. Burnett, 472 F.3d at 477. In

order to prevail on her FMLA interference claim, de la

Rama was required to show the following:

(1) [s]he was eligible for the FMLA’s protections,

(2) [her] employer was covered by the FMLA, (3) [s]he

was entitled to leave under the FMLA, (4) [s]he provided sufficient notice of [her] intent to take leave, and

(5) [her] employer denied [her] FMLA benefits to

which [s]he was entitled.

Id. The district court concluded that de la Rama failed to

provide sufficient notice of her intent to take FMLA leave.

We agree. Although an employee is not required to refer

to the FMLA in order to give notice of her intent to take

FMLA leave, “the notice must succeed in alerting the

employer to the seriousness of the health condition.”

Stevenson v. Hyre Elec. Co., 505 F.3d 720, 725 (7th Cir. 2007).

Calling in sick without providing additional information
10 No. 07-1156

does not provide sufficient notice under the FMLA. Burnett, 472 F.3d at 479; Collins v. NTN-Bower Corp., 272 F.3d

1006, 1008 (7th Cir. 2001) (“’Sick’ does not imply ‘a serious

health condition.’ ”). This is true even if the employee

provides her employer with a doctor’s note if the note

does not convey the seriousness of her medical condition.

See Phillips v. Quebecor World RAI, Inc., 450 F.3d 308, 311-12

(7th Cir. 2006). As the district court noted, during the

period when de la Rama called in sick in July and

August, she never indicated that she suffered from a

condition that would require an extended period of

leave. The FMLA’s notice burden is not onerous but

neither is it illusory. De la Rama did not provide documentation of her fibromyalgia until October 4, 2004. Until

that point, de la Rama informed her employer only that

she was sick, which is insufficient to suggest that she

suffered from an FMLA-qualifying condition.

We have recognized that in some situations, “an employee may be excused from expressing a need for

medical leave,” such as “when circumstances provide the

employer with sufficient notice of the need for medical

leave.” Burnett, 472 F.3d at 479; see also Byrne v. Avon Prods.,

Inc., 328 F.3d 379, 381 (7th Cir. 2003) (“dramatic change

in behavior” may provide notice of a serious medical

problem). De la Rama contends that the circumstances

surrounding her absences should have put the Department on notice that she needed to take leave on account

of a serious medical condition. In support of this argument,

she cites an incident that occurred in May or June 2004

in which she was taken from work to the emergency

room. Based on this incident, she contends that when she
No. 07-1156 11

began calling in sick to work in July, her employer should

have known that she was suffering from an FMLA-qualifying condition. This argument does not wash. The FMLA

does not require employers to play Sherlock Holmes,

scanning an employee’s work history for clues as to the

undisclosed, true reason for an employee’s absence. There

is simply nothing in the record to suggest the kind of

“dramatic, observable change in [de la Rama’s] work

performance or physical condition” that would excuse

her from failing to notify the Department of her need

for FMLA leave. Burnett, 472 F.3d at 480.

Further, in light of the fact that de la Rama was permitted

to take seventeen weeks of leave—five weeks more than

the twelve weeks the Department was required to give her

under the FMLA—we find it difficult to see how the

Department interfered with her entitlement to leave at

all. In fact, at oral argument her attorney stated that de la

Rama was not attempting to take FMLA leave when

she called in sick in July and August. This puzzling

concession further obscures the basis for de la Rama’s

FMLA interference claim since it is undisputed that the

Department granted her FMLA leave after she submitted her written request in October. In any event,

because de la Rama received FMLA leave after providing

notice in October 2004, and because she did not provide

adequate notice prior to that date, we affirm the court’s

grant of summary judgment on this claim.

C. Defamation claim

Before the district court, de la Rama alleged that

Zukowski defamed her on two occasions. First, during
12 No. 07-1156

July and August 2004, when Zukowski allegedly made

unfavorable statements about de la Rama’s absences to

some of her co-workers. The district court concluded that

Illinois’ one-year statute of limitations for defamation

barred the claim based on these statements since de la

Rama filed her lawsuit in September 2005. The second

incident of defamation supposedly occurred during the

third-level grievance hearing, when Zukowski told “false

stories” about de la Rama’s behavior while she was

enjoying the unauthorized absences and characterized

de la Rama’s doctors’ notes as deficient. The district court

concluded that the statements “concerned only de la

Rama’s failure to navigate through the proper procedures

and paperwork that would entitle her to extended time

off,” and thus, “[did] not fall into any of the categories

of defamation per se” under Illinois law. De la Rama’s

appeal of the court’s grant of summary judgment on her

defamation claim is conclusory and utterly lacking in

any citation to the applicable law or to facts in the record.

Thus, she has waived this issue. See Beamon, 411 F.3d at 862

(“[U]nsupported and undeveloped arguments are

waived.”).

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of

the district court.

9-2-08