UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

JACOB SAHLHOFF, ) 

 ) 

 Plaintiff, ) 

 ) 

 vs. ) Cause No. 3:14-cv-1790 RLM-MGG 

 ) 

GURLEY-LEEP AUTOMOTIVE ) 

MANAGEMENT CORP, et al., ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

Jacob Sahlhoff claims that the defendants, collectively called “GurleyLeep” in this opinion, interfered with his right to unpaid medical leave and 

retaliated against him for asserting that right under the Family Medical Leave 

Act, 29 U.S.C. §§ 2601 et seq. The court dismissed Mr. Sahlhoff’s first amended 

complaint for failure to state a claim. He then filed a second amended complaint. 

Gurley-Leep moved to dismiss again, arguing that the changes to Mr. Sahlhoff’s 

complaint don’t rectify the problems of the previous one. The court disagrees. 

I. BACKGROUND

Mr. Sahlhoff worked for seven years as a car salesman at Gurley-Leep.1 He 

alleges that, starting in March of 2012, he started to experience sharp pain in 

and around his eye, the sensation of needles probing and scratching his eye, and 

blurred vision. The pain was so intense he often had to rest his head on his desk 

 

1 Defendant Gurley-Leep Automotive Management Corp. reserves its argument that it wasn’t Mr. 

Sahlhoff’s employer. 
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at work, and otherwise struggled through it to do his job. While Mr. Sahlhoff 

used to work at least fifty hours per week, he had to tell his supervisors that he 

couldn’t do the overtime. Mr. Sahlhoff alleges that Gurley-Leep wasn’t at all 

understanding. When he explained his symptoms to managers, or when they 

saw him in pain, they mocked or belittled him, telling him to toughen up or that 

he knows he can’t be missing work. They did this even when he needed to leave 

work for medical examinations, and so Mr. Sahlhoff felt pressured to delay 

examinations and to return to work immediately after them. Mr. Sahlhoff went 

to at least three doctors between May and July. On July 6 Gurley-Leep fired him, 

saying that he “was not committed to the job.” After termination, Mr. Sahlhoff 

went to numerous doctors and was ultimately diagnosed with a tumor that 

required removal of his right eye. 

Some of the changes to Mr. Sahlhoff’s complaint are significant. Mr. 

Sahlhoff explains that he complained about his symptoms to the general 

manager and sales manager. He describes with greater specificity that he sought 

treatment at a medical center specializing in eye problems and that he was 

referred to an orbital specialist for testing and treatment. He explains that each 

of the three or more examinations he went to between May and July of 2012 

required him to miss work for about two and a half hours. He explains that the 

cancerous lump growing near his eye was visible to others while he was still 

employed at Gurley-Leep. He also describes the numerous medical appointments 

he made after being fired that resulted in his diagnosis and loss of his right eye. 
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II. STANDARD OF REVIEW

Gurley-Leep moves to dismiss the second amended complaint for failure 

to state a claim. Fed. R. Civ. P. 12(b)(6). To state a claim, a complaint need only 

contain a short and plain statement showing that the plaintiff is entitled to relief. 

See EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007). 

In deciding a Rule 12(b)(6) motion, the court must accept as true all well-pleaded 

factual allegations in the complaint and draw all reasonable inferences in favor 

of the non-moving party. See Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 

2009). A complaint survives a motion to dismiss under Rule 12(b)(6) if it contains 

sufficient factual allegations to “state a claim to relief that is plausible on its 

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014). 

III. DISCUSSION

Mr. Sahlhoff alleges that Gurley-Leep interfered with his FMLA rights when 

it objected to him taking time for medical services and fired him when he was 

likely to require leave, and that it fired him in retaliation for asserting his rights. 

A. FMLA Interference Claim 

To prevail on a claim of interference with his FMLA rights, Mr. Sahlhoff 

must show that (a) he was eligible for FMLA protections, (b) his employer was 
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covered by the FMLA, (c) he was entitled to leave under the FMLA, (d) he provided 

sufficient notice of his intent to take FMLA leave, and (e) his employer denied 

him FMLA benefits to which he was entitled. Scruggs v. Carrier Corp., 688 F.3d 

821, 825 (7th Cir. 2012). Elements (c) and (d) are at issue here. 

To be entitled to FMLA leave, the employee must suffer from a serious 

health condition that leaves him unable to perform the functions of his job. 29 

U.S.C. § 2612(a)(1)(D); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 669 (7th 

Cir. 2011). A “serious health condition” must involve “inpatient care . . . or 

continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). 

Regulations elaborate that “continuing treatment by a health care 

provider” requires at least one of numerous listed conditions. 29 U.S.C. § 

825.115. The first of these is “a period of incapacity of more than three 

consecutive, full calendar days, and any subsequent treatment or period of 

incapacity relating to the same condition.” 29 C.F.R. § 825.115(a). Mr. Sahlhoff 

doesn’t allege that he was ever incapacitated for more than three consecutive, 

full calendar days, so this route is closed. 

The next possible route for “continuing treatment” is “chronic conditions.” 

§ 825.115(c). A chronic serious health condition requires, first, visiting a health 

care provider for treatment at least twice a year. § 825.115(c)(1). “Treatment” 

“includes . . . examinations to determine if a serious health condition exists and 

evaluations of the condition.” § 825.113(c). Even before Mr. Sahlhoff’s 

termination and diagnosis, he alleges at least three examinations for these 

precise purposes. Second, the condition must “[c]ontinue[ ] over an extended 
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period of time (including recurring episodes of a single underlying condition); 

and[, third,] may cause episodic rather than a continuing period of incapacity.” 

§ 825.115(c)(2)-(3). Mr. Sahlhoff’s symptoms, the sharp pains in his eye and 

blurring vision, began in March and continued for the roughly four months until 

he was terminated. Approximately four months is enough for an “extended 

period.” See Burnett v. LFW, Inc., 472 F.3d 471, 478 (7th Cir. 2006) (holding 

that plaintiff had a chronic condition that continued for four months). Thus, Mr. 

Sahlhoff alleged “continuing treatment by a healthcare provider” and, thus, a 

“serious health condition.” Similar analysis qualifies him under § 825.115(e).2

Despite Gurley-Leep’s argument to the contrary, there’s no requirement 

that a “serious health condition” be diagnosed by the time the employee is 

terminated. See id. (holding that the employee’s prostate cancer was a serious 

health condition even though his diagnosis followed termination). It’s enough 

that Mr. Sahlhoff had the serious health condition while employed, even if its 

cause was then unknown. 

Next, to be entitled to FMLA leave, the condition had to leave Mr. Sahlhoff 

unable to perform the functions of his job. 29 U.S.C. § 2612(a)(1)(D). “An 

employee who must be absent from work to receive medical treatment for a 

serious health condition is considered to be unable to perform the essential 

functions of the position during the absence for treatment.” 29 C.F.R. § 

 

2 Gurley-Leep insists incorrectly that subsection (a) of 29 C.F.R. § 825.115 is the only possible 

route for one to have a “serious health condition involving continuing treatment by a health care 

provider.” Mr Sahlhoff doesn’t meet the requirements of subsection (a), but each of subsections 

(b) through (e) provides an independent basis for a “serious health condition.” 
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825.123(a). Despite Gurley-Leep’s argument to the contrary, this definition 

doesn’t require that “the health care provider finds that the employee is unable 

to work at all or is unable to perform any one of the essential functions of the 

employee’s position within the meaning of the Americans with Disabilities Act.” 

Id.; see Pagel v. TIN Inc., 695 F.3d 622, 628 (7th Cir. 2012) (holding that 

employee met requirement of § 825.123(a) even though there was no health care 

provider finding that he was unable to work). Such a finding from the health care 

provider may be sufficient to satisfy § 825.123(a) but isn’t necessary. 

Mr. Sahlhoff was unable to perform the functions of his job. First, Mr. 

Sahlhoff explains that he had to miss two and a half hours of work for each of 

his medical appointments. This absence is sufficient under the regulation, 

keeping in mind that “treatment” includes “examinations to determine if a 

serious health condition exists.” 29 C.F.R. § 825.113(c). 

Gurley-Leep argues that because Mr. Sahlhoff put in full time hours he 

could still perform. The allegations, when drawing all reasonable inferences from 

them, suggest otherwise. Mr. Sahlhoff was in intense pain while at work. Even 

though he might have been at Gurley-Leep for forty hours per week, he often had 

his head down on a desk. He was in such discomfort that he felt the need to 

regularly tell managers about his pain, and to do so despite their mockery. 

Indeed, that Gurley-Leep fired Mr. Sahlhoff supports the fact that he wasn’t able 

to perform as expected. Mr. Sahlhoff plausibly alleges that he had a serious 

health condition, was unable to perform and, thus, was entitled to leave. 29 

U.S.C. § 2612(a). 
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The next disputed element of the interference claim is whether Mr. 

Sahlhoff provided sufficient notice to Gurley-Leep of his intent to take FMLA 

leave. “The employee’s notice obligation is satisfied so long as he provides 

information sufficient to show that he likely has an FMLA-qualifying condition.” 

Burnett, 472 F.3d at 479. It isn’t enough for an employee simply to say that he’s 

sick. Id. In certain situations, though, an employee doesn’t even have to tell the 

employer of his need for medical care. Id. An employee’s uncharacteristic 

conduct at work can provide adequate notice. Id. (discussing Byrne v. Avon 

Prods., Inc., 328 F.3d 379, 381-382 (7th Cir. 2003), where an employer was on 

notice because the employee started to sleep on the job after an otherwise strong 

four-year work history). An employee also doesn’t have to give notice where the 

health condition prevents him from communicating the nature of his illness, 

such as in clinical depression. Id.

Mr. Sahlhoff’s alleged condition is unlikely to trigger nonverbal notice. The 

fact that he continued to work through the pain doesn’t likely create the 

“dramatic, observable change in his work performance or physical condition” to 

satisfy the requirements of Burnett and Byrne. Id. at 480. Mr. Sahlhoff does 

allege, however, that he put Gurley-Leep on general notice.

Gurley-Leep argues that, “at most, Plaintiff complained of being sick.” The 

amended complaint alleges otherwise. As in Burnett, Mr. Sahlhoff “gave an 

account of symptoms and complaints, which formed a coherent pattern and 

progression, beginning with initial symptoms, continuing with doctor’s visits, 

and then additional testing and results – all communicated” to his manager. Id.
8

Mr. Sahlhoff complained about each of his symptoms to his managers. Sharp 

eye pain and blurring vision aren’t regular symptoms of the common cold or a 

flu. In addition to the verbal cues, managers saw him laying his head down on a 

desk in a job that isn’t a sedentary one, selling cars. These symptoms didn’t 

persist for just a couple of days, but for four months, and he told managers about 

them throughout that time. He also repeatedly told managers about his need to 

leave work in order to seek medical care. And, as Mr. Sahlhoff now alleges, a 

growth became apparent on his right eye. Mr. Sahlhoff plausibly alleges that 

Gurley-Leep knew something was wrong after four months of verbal complaints 

to managers and behavioral change of an employee who had otherwise been 

satisfactory for seven years. 

“The notice requirements of the FMLA are not onerous.” Id. at 478. An 

employee “doesn’t have to write a brief demonstrating a legal entitlement. He just 

has to give the employer enough information to establish probable cause, as it 

were, to believe that he is entitled to FMLA leave.” Aubuchon v. Knauf Fiberglass, 

GmbH, 359 F.3d 950, 953 (7th Cir. 2004). Mr. Sahlhoff provided “probable 

cause” that he was so entitled here. Id. As a result, the interference claim stands. 

B. FMLA Retaliation Claim 

An FMLA retaliation claim can be proven either directly or indirectly. Mr. 

Sahlhoff's response to Gurley–Leep's motion points the court to the direct 

method. To prevail on an FMLA retaliation claim under the direct method, an 

employee must show that (a) he engaged in a protected activity, (b) the employer 
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took an adverse employment action — such as denying leave or termination — 

against him, and (c) there’s a causal connection between (a) and (b). Langenbach 

v. Wal-Mart Stores, Inc., 761 F.3d 792, 799 (7th Cir. 2014); Cracco v. Vitran 

Express, Inc., 559 F.3d 625, 663 (7th Cir. 2010). The protected activity here is 

Mr. Sahlhoff taking time off for his treatments. The adverse employment action 

is Mr. Sahlhoff’s eventual termination. 

Last, there’s a plausible causal connection between the protected activity 

and the adverse employment action. Mr. Sahlhoff can demonstrate causation 

“either with a direct admission from [the employer] or a convincing mosaic of 

circumstantial evidence.” Langenbach v. Wal-Mart, 761 F.3d at 800 (internal 

quotations omitted). “This mosaic can include suspicious timing, ambiguous 

statements from which retaliatory intent can be inferred, evidence of similar 

employees being treated differently, or evidence that the employer offered a 

pretextual reason for the termination.” Id.

The timing of the termination is enough to raise a plausible retaliation 

claim. Mr. Sahlhoff had been employed by Gurley-Leep for seven years before he 

was fired. The termination soon after he was overcome with his illness and 

missed work for at least three medical appointments creates an inference that 

the termination is connected to the protected activity. Mr. Sahlhoff’s second 

amended complaint explains that these visits were time-consuming, aiding the 

inference that Gurley-Leep would act to inhibit them. Little inference is needed 

that Gurley-Reep managers who would happily berate a man who is in pain or 
10

needs medical attention would fire him for the same reasons. Mr. Sahlhoff thus 

alleges a plausible FMLA retaliation claim. 

The differences between the first and second amended complaints aren’t 

enormous, but the allegations that Mr. Sahlhoff allegedly complained to 

managers and that his cancer manifested itself visibly improves the claim that 

Gurley-Leep knew of the serious health condition, even if it didn’t know the 

formal diagnosis. The length of Mr. Sahlhoff’s medical appointments supports 

the inference that Gurley-Leep disapproved of his absence. This is enough to get 

Mr. Sahlhoff over the plausibility threshold to survive the motion to dismiss. 

III. CONCLUSION

For the reasons stated above, the court DENIES Gurley-Leep’s motion to 

dismiss [Doc. No. 31]. 

 SO ORDERED. 

 ENTERED: September 29, 2016 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court