NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1



# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted August 8, 2017 * Decided August 10, 2017



### Before

D IANE P. W OOD , Chief Judge

W ILLIAM J. B AUER , Circuit Judge

F RANK H. E ASTERBROOK , Circuit Judge

No. 17

- 1456

J AMES M C Q UILLEN , Plaintiff

- Appellant

,

v

.

P ET S MART , I NC

. , Defendant

- Appellee

. Appeal from the United
States District Court for the Northern District of Illinois,
Eastern Division.

No. 15 C 9953
Robert W. Gettleman

, Judge

.

Order

James McQuillen did not show up for w ork on April 14, 2014, or let Pe tSmart, his employer, know that he was not coming. He did not appear the next day either, or the next. Responding to a call from PetSmart on April 15, McQuillen’s wife said that her
husband was home in bed

, drunk and unconscious. On April 17 McQuillen’s sister pe rsuaded McQuillen’s wife to allow him to be taken to a hospital. There he was treated for major depressive disorder, anxiety disorder, and alcoholism. He had been diagnosed

* The case was set for oral argument on August 8, but both parties waived their right to participate.No. 17

- 1456 Page 2

with those conditions befor e starting work at PetSmart, but he never told his employer
about them, and his absences took PetSmart by surprise. He was fired under a company rule providing that missing two consecutive days’ work, without no tice, constitutes abandonment of the job.

Mc Quillen contends that the discharge violates his rights under the Family and Medical Leave Act, 29 U.S.C. § § 2601

– 54 . T he FMLA does not prevent employers from enforcing attendance policies, see Gilliam v. United Parcel Service, Inc ., 233 F.3d 969 , 972 (7th Cir. 2000) , but requires them to honor proper requests for leave. The district court granted summary judgment for PetSmart, observing that substance abuse justifies FMLA leave only if it is being treated, see Darst v. Interstate Brands Co ., 512 F.3d 903, 908 (7th Cir. 2008), which it was not until McQuillen reached the hospital on April 17, and that McQuillen had not requested FMLA leave, as the statute requires. 2017 U.S. Dist.

L EXIS 22815 (N.D. Ill. Feb. 16, 2017).

The first of the district court’s reasons is not conclusive, because McQuillen’s med ical problem was not simply substance abuse. His conditions included major depressive disorder, and his depression le d him to attempt suicide by drinking. But the statutory notice requirement is an insuper able obstacle. Employees must both request leave and give advance notice when the need for leave is foreseeable. 29 U.S.C. §2612(e); Byrne v. Avon Products, Inc ., 328 F.3d 379 , 381 (7th Cir. 2003) . McQuillen contends that an unco nscious person cannot give notice, advance or otherwise. But that’s the wrong perspe ctive. He could have told PetSmart about his problems and their potential to occasion time off the job, but he did not do so. And before starting to drink heavily he could have given notice. He was n ot suffering from a sudden

- onset medical problem of the kind
discussed in Byrne

. His conditions are chronic, but he chose to keep PetSmart in the dark. All his employer knew

— all it could have known

— was that McQuillen did not show up for multiple days runni ng and was drunk at home. That would not have su ggested to a reasonable employer either a request or a need for FMLA leave to treat m ajor depression . It suggested only voluntary substance abuse.

A FFIRMED