In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-2387 & 07-2390

SANJAY ANDONISSAMY,

Plaintiff-Appellant,

v.

HEWLETT-PACKARD COMPANY,

QWEST COMMUNICATIONS

AND KEN SMITH, 

Defendants-Appellees.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 04 C 2521 & 05 C 3080—William J. Hibbler, Judge.

ARGUED SEPTEMBER 9, 2008—DECIDED NOVEMBER 7, 2008

Before FLAUM, WILLIAMS, SYKES, Circuit Judges.

FLAUM, Circuit Judge. Sanjay Andonissamy worked as

technician for Hewlett-Packard, assigned to the Qwest

Cyber Center in Chicago, Illinois, from April 2001 to

June 2003. He brought an employment discrimination

suit against Hewlett-Packard in the Northern District of

Illinois after his termination, alleging that Hewlett-Packard
2 Nos. 07-2387 & 07-2390

created a hostile work environment in violation of

Title VII, retaliated against him for reporting the hostile

work environment to his superiors, and denied him

medical leave in violation of the Family and Medical Leave

Act. Andonissamy also sued Qwest for violating his

rights under 42 U.S.C. § 1981, and sued Ken Smith, his

former supervisor, for assault under Illinois law. The

district court dismissed Andonissamy’s assault claim

after Smith filed a motion to dismiss because the statute

of limitations had lapsed, and the remainder of

Andomissamy’s suit upon the defendants’ motion for

summary judgment. Andonissamy appeals on the

Title VII claims, the § 1981 claim, the Family and Medical

Leave Act claim, and the dismissal of the assault claim.

For the following reasons, we affirm the district court’s

grant of the motion for summary judgment and the

motion to dismiss.

I. Background

 Sanjay Andonissamy began working for

Hewlett-Packard in April 2001, as a systems engineer

assigned to the Qwest Cyber Center in Chicago.

Andonissamy is a citizen of France of Indian ethnicity, and

his employment was based on Hewlett-Packard’s sponsorship of his H-1B visa. Classified as a TSG-2 technician,

Andonissamy’s primary responsibilities included providing technical support to Qwest data centers and to

Qwest customers.

Andonissamy and Hewlett-Packard offer divergent

accounts of Andonnissamy’s tenure with the company.
Nos. 07-2387 & 07-2390 3

Andonissamy alleges that, in the wake of September 11,

2001, Smith created a hostile work environment by directing numerous racist comments at Andonissamy, and

that he was placed on remedial performance plans either

as retaliation for his complaints to human resources about

his work environment, or because of his supervisor’s

personal animus towards him. Hewlett-Packard, on the

other hand, alleges that Andonissamy was an abusive

and unprofessional co-worker who was terminated after

the company gave him numerous warnings about his

insubordination and disrespectful comments.

Andonissamy’s employment discrimination suit is

based on a series of comments from Smith. First,

Andonissamy claims that sometime after September 11,

Smith said in conversation with Andonissamy that, “All

of Asia should be smashed,” and used his hands in a

way that indicated that he meant South Asia specifically;

second, that Smith told Andonissamy that people like

him should be hanged from trees as African-Americans

had been hanged; third, that people out of college in the

United States were unable to find jobs because people

like Andonissamy had taken them; fourth, that jobs

should be reserved for Americans; fifth, that no matter

how much Andonissamy worked he would never be

like his co-workers; sixth, that Smith claimed when reviewing resumes that he would look for resumes with

American-sounding names. Andonissamy also claims

that he was involved in a fight with two co-workers

who called Andonissamy an “Indian racist bastard” and

who then spoke with Smith after the fight ended.
4 Nos. 07-2387 & 07-2390

Andonissamy claims that he expressed his frustration

with Smith several times during his tenure with

Hewlett-Packard. He sent complaints to Russell Lewis,

Smith’s supervisor, in October 2002, April 2003, and

May 2003. Andonissamy alleges that in October 2002

and May 2003, he was issued performance warnings

after complaining to Lewis. Andonissamy finally claims

that in May 2003, he was suspended after Smith made

a false report to human resources that Andonissamy

had said “We will all have a big surprise,” a report that

Andonissamy claims was designed to make him look like

a security threat. Human resources then conducted an

investigation into the remark, which Andonissamy

claims led to his firing on June 23, 2003.

Andonissamy bases his Family and Medical Leave Act

claim on his treatment for depression and anxiety, which

began at some point in 2002 and lasted until the end of

his employment with Hewlett-Packard in 2003. Smith

learned in late 2002 that Andonissamy took medication.

Andonissamy claims that his condition worsened after

the death of his brother and nephew in March 2003 and

April 2003, respectively, and that he was not given leave

to attend their funerals. He also missed work on two

occasions due to illness in May 2003. While Andonissamy

was taking medicine for depression from 2002 to 2003,

his treating physician examined him on four separate

occasions and did not place any restrictions on his daily

activities or work. Nor did his physician diagnose

Andonissamy with clinical depression.

Hewlett-Packard offers a different version of events. In

January 2002, Andonissamy’s supervisor, Ken Smith, gave
Nos. 07-2387 & 07-2390 5

him his first performance review. While Smith found

that Andonissamy’s technical skills were strong, he also

noted that Andonissamy could improve his relationships

with co-workers and customers. A few months after the

first performance review, several of Andonissamy’s

colleagues complained that Andonissamy had treated

them rudely, and Smith informed him of those charges

in an e-mail. Another complaint, that Andonissamy had

been rude to a Qwest employee in an e-mail, followed

shortly thereafter. In October 2002, Smith placed

Andonissamy on a performance plan to monitor his

work for forty-five days, after a customer of the Qwest

Cyber Center had network outages that were partly

attributed to Andonissamy.

Hewlett-Packard’s concerns about Andonissamy’s

performance grew. In 2002, Andonissamy refused to train

a co-worker to serve as his back-up, despite repeated

requests from Smith that he do so. On March 28, 2003,

Smith contacted Lewis about an argument he had with

Andonissamy when the latter refused to attend an installation for a customer. On March 31, 2003, Carol

Dixon-Woolfolk, an employee of Hewlett-Packard’s

human resources department, began investigating

Andonissamy’s performance issues. During her investigation, Dixon-Woolfolk interviewed Andonissamy’s

co-workers, who reported that Smith frequently bore

the brunt of Andonissamy’s abusive yelling. Those same

co-workers testified that Andonissamy screamed at

them and talked down to them, sent condescending

e-mails to Qwest employees, and failed to meet deadlines

or follow instructions.
6 Nos. 07-2387 & 07-2390

On April 16, 2003, Dixon-Woolfolk recommended that

Hewlett-Packard issue Andonissamy a performance

warning. Smith issued this warning on May 5, 2003,

although Andonissamy refused to sign it. The warning

listed the five most recent examples of insubordination and

inappropriate conduct, including two incidents that had

caused a Qwest employee to complain to Smith.

Andonissamy, in response to the warning, then sent an

e-mail to Lewis and Dixon-Woolfolk complaining about

Smith. After the warning, Andonissamy continued to

submit work late, missed scheduled installations, and

refused to train a back-up.

In June 2003, in response to the concerns of Qwest

employees about Andonissamy’s behavior, Qwest refused

to authorize Andonissamy’s return to the Cyber Center.

Lewis then decided to terminate Andonissamy’s employment, which he did on June 23, 2003.

On September 16, 2003, Andonissamy filed a complaint

with the Equal Employment Opportunity Commission

for national origin discrimination against HewlettPackard. While his complaint contained many of the claims

he makes in the present lawsuit, it apparently did not

include the allegations that Smith had said Indians

should be “hung from trees,” or that after September 11

all of South Asia should be wiped out. On January 12,

2004, the EEOC dismissed the complaint and issued

Andonissamy a right to sue letter.

On April 7, 2004, Andonissamy filed a complaint against

Hewlett-Packard, adding a Family and Medical Leave Act

complaint on May 23, 2005, and eventually joining both
Nos. 07-2387 & 07-2390 7

Qwest and Smith to the complaint. On November 10, 2005,

Andonissamy also asserted a cause of action against Smith

for assault under Illinois law; on May 18, 2006, the district

court granted Smith’s motion to dismiss this claim. The

district court granted summary judgment for

Hewlett-Packard, Qwest, and Smith on May 30, 2007,

and Andonissamy now appeals.

II. Discussion

This court reviews a district court’s grant of summary judgment de novo, construing all facts and

drawing all reasonable inferences based on those facts

in the light most favorable to the non-moving party.

Telemark Development Group, Inc. v. Mengelt, 313 F.3d 972,

976 (7th Cir. 2002). Summary judgment is appropriate “if

the pleadings, the discovery and disclosure materials

on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Review of a district court’s grant of a motion to dismiss

is de novo. Witzke v. Femal, 376 F.3d 744 (7th Cir. 2004).

When ruling on a motion to dismiss under Rule 12(b)(6),

the court accepts all well-pleaded allegations as true

and draws all reasonable inferences in favor of the plaintiff. Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996). A

statute of limitations defense, while not normally part

of a motion under Rule 12(b)(6), is appropriate where

“the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as

when a complaint plainly reveals that an action is
8 Nos. 07-2387 & 07-2390

untimely under the governing statute of limitations.”

United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005).

A. The Title VII and 42 U.S.C. § 1981 claims.

1. Title VII claim.

The first issue is whether the district court properly

granted summary judgment to Hewlett-Packard on

Andonissamy’s hostile work environment claim. “To

survive summary judgment on a hostile work environment claim based on national origin, a plaintiff must

establish that: (1) he was subjected to unwelcome harassment, (2) the harassment was based on his national

origin, (3) the harassment was severe and pervasive

enough to alter the conditions of his environment and

create a hostile and abusive working environment, and

(4) there is a basis for employer liability.” Velez v. City of

Chicago, 442 F.3d 1043, 1047 (7th Cir. 2006). “Title VII

protects a worker against conduct which is sufficiently

severe or pervasive that a reasonable person would find

it hostile and which the victim himself subjectively sees

as abusive.” Ngeunjuntr v. Metropolitan Life Ins. Co., 146

F.3d 464 (7th Cir. 1998) (citing Harris v. Forklift Systems,

Inc., 510 U.S. 17 (1993)).

Courts examine a variety of factors when evaluating

whether a workplace is hostile, including the frequency

of the supposed discriminatory conduct; the severity of it;

whether the conduct is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee’s job performance.

Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Nos. 07-2387 & 07-2390 9

The district court rejected Andonissamy’s hostile work

environment claim because it determined that, even

assuming Smith had made every comment attributed to

him, the comments were insufficient as a matter of law to

support a claim for national origin discrimination, and,

second, because Andonissamy had not demonstrated

a basis for employer liability. Andonissamy argues on

appeal that there is sufficient evidence for a jury to

find that he was subjected to a hostile work environment.

He lists once again Smith’s alleged remarks, and argues

that they demonstrate an objectively hostile atmosphere

based on his national origin. Hewlett-Packard responds

that the district court properly found the comments

insufficient as a matter of law, and that many of the

alleged remarks cannot even be attributed to national

origin discrimination.

We do not need to reach the question of whether

Smith’s comments are sufficient to support a hostile work

environment claim. Even assuming arguendo that the

remarks created a hostile work environment, Andonissamy

has not established a basis for employer liability in this

case. Under Title VII, an employer can be vicariously

liable for a hostile work environment created by a supervisor, but is only liable for a hostile work environment

created by a co-worker if the employer was negligent in

discovering or remedying the harassment. Velez, 442 F.3d

at 1047. A “supervisor” for purposes of Title VII is not

simply a person who possesses authority to oversee the

plaintiff’s job performance, but a person with the power to

directly affect the terms and conditions of the plaintiff’s

employment. Id; see also Hall v. Bodine Elec. Co., 276 F.3d

345, 355 (7th Cir. 2002). In this circuit, the term means
10 Nos. 07-2387 & 07-2390

generally a person with “the authority to hire, fire, promote, demote, discipline or transfer . . .” Rhodes v. Illinois

Dept. of Transp., 359 F.3d 498, 506 (7th Cir. 2004). Smith,

while Andonissamy’s “supervisor” in the colloquial sense

of the word, did not possess the authority that would make

him a supervisor for purposes of Title VII. He did not

hire or fire Andonissamy, and while he recommended

disciplinary action, the record shows that human resources first had to conduct an investigation and issue

a recommendation before any disciplinary action could

be taken.

Andonissamy argues that Smith directed Andonissamy’s

performance and recommended disciplinary action to

human resources, and thus qualifies as a supervisor

for purposes of Title VII. However, as the district court

correctly noted in its summary judgment opinion,

directing work activities and recommending disciplinary

action are not in and of themselves sufficient to make

someone a supervisor under Title VII. See Rhodes,

359 F.3d at 506. Rather, Andonissamy would have to

point to evidence that Smith could directly affect the

terms and conditions of his employment. Again,

Andonissamy must produce evidence that Smith could

hire, fire, promote, demote, discipline or transfer him. Such

evidence is simply not in the record. Smith neither

hired nor fired Andonissamy; the deposition testimony

indicates that Russell Lewis, not Smith, made the decisions to hire and fire Andonissamy. Nor could Smith

demote or discipline Andonissamy; he could recommend

that the company discipline an employee, but such

action was subject to an investigation and approval from

human resources, and the decision was not up to him.
Nos. 07-2387 & 07-2390 11

Andonissamy attempts to establish liability under “cat’s

paw” doctrine, arguing that Lewis and the human resources department were just a screen for Smith’s decisions. The “cat’s paw” doctrine does create a basis for

employer liability when a single individual lacks the

requisite power of a Title VII supervisor. See Phelan v. Cook

County, 463 F.3d 773, 784 (7th Cir. 2006); see also Shager v.

Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). The

doctrine is not helpful to Andonissamy in this case,

however, because it applies only in those cases where

no one individual possesses the powers of a Title VII

supervisor (such as the hydra-headed supervisory committee this court reviewed in Phelan). In this case, however, Russell Lewis ultimately made the decision to hire

and fire Andonissamy, and thus he has the authority of

a Title VII supervisor. Additionally, the “cat’s paw”

doctrine has been applied in cases where committee

decisions are not independent and appear to be taken

without conducting any real investigation. See Shager,

913 F.2d at 405. Here, however, human resources investigated the complaints against Andonissamy before recommending disciplinary action, and there is no evidence

that the department was simply a legal smokescreen.

Andonissamy does not establish that Hewlett-Packard is

liable for failing to detect or remedy the alleged discriminatory environment. To establish that Hewlett-Packard

is liable for failing to remedy a hostile work environment

created by co-workers, Andonissamy would need to

demonstrate that he notified the employer about the

harassment or that the harassment was so pervasive that

a jury could infer his employer knew about it. See

Zimmerman v. Cook County Sheriff’s Dept., 96 F.3d 1017 (7th
12 Nos. 07-2387 & 07-2390

This claim is, to put it mildly, problematic. In his opening 1

brief, Andonissamy alleges that he was assaulted at work by

two co-workers and cites, in support of this contention, the

deposition testimony of Hans Sterlin. The relevant excerpts

from the deposition testimony, however, are Sterlin’s denials

that such an attack ever took place. For instance: “Q: Did Bayo

hit Sanjay? A: No. Q: Did you hold the door closed while Bayo

hit Sanjay? A: No.” Sterlin Dep. at 41 (omitting an objection

to the form of the second question). Yet Andonissamy cites

this testimony as though it is evidence of the claim. Sterlin refers

to a verbal altercation in which another co-worker objected to

Andonissamy’s orders that he print some documents for him;

there is nothing in this testimony supporting the claim that the

fight was racially motivated or that it escalated beyond a

verbal disagreement.

Cir. 1996). In his briefs to this court, Andonissamy cites

the fight with his co-workers as an instance of national

origin discrimination that Hewlett-Packard was

negligent for not remedying. This incident, however, 1

was not mentioned in Andonissamy’s EEOC letter and

the allegation appeared for the first time in this litigation.

Even assuming that the claim is not barred, this was a

single incident, and Andonissamy does not present

evidence that he brought the incident to anyone’s attention. While he did send an e-mail to Lewis and to human

resources on May 6, 2003 complaining about Smith, this

e-mail did not contain allegations of national origin discrimination; the only reference in the e-mail is a reference

to Andonissamy’s immigrant status, which is not itself

a complaint about national origin discrimination and

would not establish that Hewlett-Packard is liable for

failing to act on the allegation. Accordingly, we affirm
Nos. 07-2387 & 07-2390 13

the district court’s summary judgment decision on this

count.

2. § 1981 claim.

 When pursuing a § 1981 claim, a plaintiff can proceed

by either the direct or indirect method. The direct method

requires the plaintiff to produce evidence that the defendants were motivated by animus based upon his national

origin when he was denied some employment benefit or

suffered some adverse employment action. Sun v. Board of

Trustees of Univ. of Ill., 473 F.3d 799, 812 (7th Cir. 2007). The

indirect method requires demonstrating that (1) plaintiff

is a member of a protected class; (2) he was meeting his

employer’s legitimate performance expectations; (3)

he suffered an adverse employment action; (4) other

similarly situated employees who were not part of the

same class were treated more favorably. Fane v. Locke

Reynolds, LLP, 480 F.3d 534, 538 (7th Cir. 2007).

While Andonissamy’s briefs mention the § 1981 claim,

there is nothing in either brief discussing the elements of

a claim under either the direct or indirect method. His

discussion of the § 1981 claim in his opening brief overlaps

entirely with the hostile work environment claim. At any

rate, under the direct method Andonissamy has simply

not produced evidence that his termination or any other

adverse employment action was based on his national

origin, and indeed the record indicates that he was terminated only after human resources conducted an investigation into a number of insubordinate incidents and after

the company issued him a performance warning re-
14 Nos. 07-2387 & 07-2390

garding his conduct. With respect to the indirect method,

Andonissamy is unable to meet the second prong of the

test based on the available record. Qwest expressed to

Hewlett-Packard its concerns about missing documentation regarding their systems, and refused to approve

Andonissamy’s return to the Cyber Center, and HewlettPackard had issued him a performance warning based on

a number of incidents between Andonissamy and his

supervisors and co-workers. Andonissamy thus cannot

demonstrate that he was meeting their legitimate expectations at the time he was fired. Nor did Andonissamy

provide evidence demonstrating that other, similarly

situated employees from different national origins were

treated more favorably. We thus affirm the district

court’s summary judgment decision on this count as well.

B. Retaliation claim.

Andonissamy’s next argument is that the district court

improperly dismissed his claim that Hewlett-Packard

retaliated against him for notifying superiors about the

hostile work environment.

To establish a claim for retaliation, an employee can

proceed under one of two methods. Under the direct

method, an employee must demonstrate that (1) he engaged in statutorily protected activity; (2) he suffered

an adverse action taken by his employer; and (3) there

was a causal connection between the statutorily protected activity and the adverse action. Tomanovich v. City

of Indianapolis, 457 F.3d 656, 662-63 (7th Cir. 2006). Under

the indirect method, a plaintiff must prove that (1) he

engaged in statutorily protected activity; (2) he met his
Nos. 07-2387 & 07-2390 15

employer’s legitimate expectations; (3) he suffered an

adverse employment action; and (4) he was treated less

favorably than similarly situated employees who did

not engage in statutorily protected activity. Id.

The district court ruled, first, that Andonissamy could

not make a retaliation claim because he never complained to Hewlett-Packard about discriminatory

behavior and so never engaged in statutorily protected

activity. Second, the court found that the timing of

Hewlett-Packard’s actions was not suspicious, as the

record indicated that Andonissamy complained about

Smith on May 6, 2003, which was the day after Smith

served him with a performance warning based on DixonWoolfolk’s investigation.

Andonissamy argues that he can prove his retaliation

claim via the direct method. He claims that his e-mail to

Lewis on May 6, 2003, which makes reference to his

immigrant status, was sufficient to constitute a report of

discrimination under Title VII. Andonissamy also

argues that the timing of his termination, after DixonWoolfolk had completed her investigation of Smith, was

suspicious. Andonissamy’s May 6, 2003 e-mail does

contain a litany of complaints about Ken Smith, about

Andonissamy’s work schedule, and about his high-pressure client work, but nothing that a reader would

interpret as a complaint of national origin discrimination. While a report of discrimination to a supervisor

may be statutorily protected activity under Title VII, the

report must include a complaint of national origin discrimination or sufficient facts to raise that inference. See
16 Nos. 07-2387 & 07-2390

Tomanovich, 457 F.3d at 663; see also Sitar v. Indiana Dept.

of Transp., 344 F.3d 720, 727 (7th Cir. 2003).

In his deposition, Andonissamy admitted that he did

not include his complaints about national origin discrimination in his correspondence with Lewis and human

resources but planned to mention those complaints if

anyone from the human resources department contacted

him during an investigation. At best, this raises an inference that Andonissamy planned to engage in

statutorily protected activity, but it does not amount

to statutorily protected activity in its own right.

Moreover, with respect to the third element of this claim,

Andonissamy’s purported causal connection arises

from nothing more than suspicious timing. However, this

circuit has held that “[s]uspicious timing alone rarely is

sufficient to create a triable issue.” Tomanovich, 457 F.3d at

665. On summary judgment, in particular, “it is clear that

mere temporal proximity is not enough to establish a

genuine issue of material fact.” Wyninger v. New Venture

Gear, Inc., 361 F.3d 965, 981 (7th Cir. 2004). Thus, even

if this court were to accept that Andonissamy’s e-mail

was a complaint of national origin discrimination, he

could not produce a genuine issue of material fact for

trial. This is particularly true since the report in this case

occurred after Andonissamy had already received a

performance warning for the very same conduct that

ultimately led to his termination. Nor could Andonissamy

make a retaliation claim under the indirect method,

given the ongoing complaints about his job performance

and his inability to demonstrate that he was meeting
Nos. 07-2387 & 07-2390 17

his employer’s legitimate expectations at the time of his

termination.

Finally, there is the issue of whether this claim is procedurally barred because of Andonissamy’s failure to

make a retaliation charge in his EEOC letter. Under the

law of this circuit, “a Title VII plaintiff may bring only

those claims that were included in her EEOC charge.”

McKenzie v. Ill. Dept. of Transp., 92 F.3d 473, 481 (7th Cir.

1996). Andonissamy concedes in his reply brief that

his original complaint to the EEOC did not include a

retaliation claim. However, he claims that the retaliation claim grew out of his original allegations, and that

he included the allegations in a letter to the EEOC.

Hewlett-Packard anticipated this contention in their

response brief, cited Cheek v. Western Life Ins. Co., 31

F.3d 497, 502-03 (7th Cir. 2000), and argued that under

the law of this circuit, subsequent letters to the EEOC can

only “clarify or amplify” allegations in the original complaint, and cannot state additional complaints. Id. (citing

29 C.F.R. § 1601.12(b)). The applicable regulations do

hold that an amendment to a complaint can allege “additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the

original charge.” 29 C.F.R. § 1601.12(b). However, the

retaliation claim at issue here arose from Andonissamy’s

termination, which involves conduct different from the

hostile work environment claim that Andonissamy

raised in his EEOC complaint. The additional complaint

thus does not grow out of the allegations in the initial

complaint, and they are related to the allegations only

insofar as they involve some of the same supervisors
18 Nos. 07-2387 & 07-2390

and the same job. Ultimately, however, we need not

decide whether Andonissamy’s claim is barred, because

he fails to present evidence raising a material issue of

fact on the elements of his claim. Accordingly, we affirm

the district court’s decision on summary judgment.

C. Family and Medical Leave Act claim.

Andonissamy next argues that the district court improperly dismissed his claim that Hewlett-Packard denied

him leave under the Family and Medical Leave Act. The

district court dismissed this claim at summary judgment

for two reasons. First, because the record indicated that

Andonissamy’s treating physician had never placed any

restrictions on his daily activities or his work, and that he

was not diagnosed with clinical depression. Second,

because while Andonissamy correctly argued that the

FMLA entitles employees to periodic leave, he made

no allegation that his doctor believed he required intermittent leave, or that he himself believed that he required intermittent leave.

Hewlett-Packard argues that this claim fails because

Andonissamy never requested intermittent leave under

the FMLA. Andonissamy argues in his appellate briefs

that his failure to request leave is irrelevant, as the change

in his behavior was sufficient to place Hewlett-Packard on

notice that he needed intermittent leave. There is some

authority for the idea that an employee’s conduct can put

an employer on notice of the need for leave. See Byrne v.

Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003); see also

Stevenson v. Hyre Electric Co., 505 F.3d 720 (7th Cir. 2007). In
Nos. 07-2387 & 07-2390 19

those cases, an employer had adequate notice of an employee’s need for intermittent leave based on a sudden

change in circumstances. However, both of these cases

involved dramatic and sudden changes in an employee’s

behavior, and requests for at least minimal leave time.

Neither of those factors applies in the present case.

Andonissamy had been reprimanded throughout his

employment with Hewlett-Packard for his inappropriate

behavior, and so there was no dramatic change when he

began taking depression medication. Moreover, the

closest thing that Andonissamy made to a request for

medical leave was a request for time off to attend his

nephew’s funeral in India. This was not a request for sick

time, however, and it is difficult to construe this as a

request for FMLA leave. We thus affirm the district court’s

summary judgment order on this claim because

Andonissamy did not give Hewlett-Packard notice of

any need for FMLA leave.

D. Whether Andonissamy’s assault claim related back

to the original pleading.

Andonissamy finally argues that the district court

improperly dismissed his assault claim against Smith

under Rule 12(b)(6) because it was barred by the Illinois

statute of limitations. Andonissamy argues that the

claim relates back to the time of the original filing

under Federal Rule of Civil Procedure 15(c), because his

original complaint and second amended complaint alleged

physical intimidation and harassment by Ken Smith.

However, Ken Smith was not named as a defendant in
20 Nos. 07-2387 & 07-2390

this lawsuit until October 2005, some five months after

Illinois’ two-year statute of limitations for assault claims

expired. See 75 ILCS 5/13-202. As Hewlett-Packard correctly points out, the amended complaint also involved

not only a new defendant but a new claim against a

new defendant.

Federal Rule of Civil Procedure 15(c)(3) permits a

claim against a new defendant to relate back to an

original timely pleading for purposes of the statute of

limitations only if there was an identity mistake as to

the proper party to be named and that mistake is chargeable to the new defendant. What we have in this case,

however, is a straightforward assault claim made

against a defendant who was Andonissamy’s supervisor

for two years; there is no chance of a genuine identity

mistake here, nor does Andonissamy allege one. The

district court properly dismissed the claim.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

order of summary judgment.

11-7-08