NONPRECEDENTIAL DISPOSITION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

DIANE P. WOOD, Chief Judge

WILLIAM J. BAUER, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

No. 17-1456

JAMES MCQUILLEN,

Plaintiff-Appellant,

v.

PETSMART, INC.,

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 work on April 14, 2014, or let PetSmart, 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 persuaded 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 before 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 notice, constitutes

abandonment of the job.

McQuillen contends that the discharge violates his rights under the Family and 

Medical Leave Act, 29 U.S.C. §§ 2601–54. The 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. 

LEXIS 22815 (N.D. Ill. Feb. 16, 2017).

The first of the district court’s reasons is not conclusive, because McQuillen’s medical problem was not simply substance abuse. His conditions included major depressive 

disorder, and his depression led him to attempt suicide by drinking. But the statutory 

notice requirement is an insuperable 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 unconscious person cannot give notice, advance or otherwise. But that’s the wrong perspective. 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 not 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 running and was drunk at home. That would not have suggested to a reasonable employer either a request or a need for FMLA leave to treat major depression. It suggested only voluntary substance abuse.

AFFIRMED