RIGHI v. SMC CORPORATION (February 14, 2011)

SMC Corporation employed Robert Righi as a sales representative from 2004 until 2006. Righi worked out of his home in Henry, Illinois, where he lived with a roommate and his ailing mother. His principal methods of communicating with his sales manager was his cell phone and e-mail. Righi was attending a training session in Indianapolis on July 11, 2006 when he received a call that his mother was in a coma. He immediately returned home. Although he advised a colleague of his plans and asked the colleague to inform others, he did not inform his sales manager of the situation until the next morning. In fact, he turned his cell phone off and missed several calls from his sales manager on July 11. He sent his sales manager an e-mail on the morning of July 12. He stated that he needed "the next couple days off" to care for his mother, that he had vacation time, or that "I could apply for the family care act, which I do not want to do at this time." Over the next several days, Righi's sales manager attempted to reach him by phone multiple times. Righi did not answer or return the calls. His roommate finally answered one of the calls and took a message that the sales manager needed to speak with Righi as soon as possible. Righi finally called his sales manager -- after nine days of silence. SMC terminated Righi's employment the next day for violating its leave policy. The leave policy required prior approval for a leave and provided that two days absence without notification was grounds for termination. Righi brought suit against SMC pursuant to the Family and Medical Leave Act, alleging that SMC interfered with his statutory rights. Judge McDade (C.D. Ill.) granted summary judgment to SMC on two grounds: that Righi was not entitled to FMLA protection because he stated in his e-mail that he did not want it, and that he was not entitled to FMLA protection because he did not comply with the Act's regulations requiring notification of a return date. Righi appeals.

In their opinion, Judges Flaum, Wood, and Sykes affirmed. In order to be entitled to protection under the FMLA, employee must notify his or her employer of a desire to take leave and of a projected return date. With respect to the former, the Court disagreed with the district court's conclusion. Very little is required of an employee to trigger the FMLA protection. Putting an employer on notice of a basis for leave is sufficient. An employee can waive FMLA protection, but only by a clear expression of intent to do so. The Court concluded that Righi met the notice requirements with his July 12 e-mail. It mentioned the “family care act” and left open, at least, the possibility that he could choose to use it. The Court also concluded that his expressed desire not to use it was not a clear expression of a waiver. The Court agreed with the district court, however, with respect to its alternate grounds for summary judgment. Righi was obligated under the FMLA and its regulations to keep SMC informed of his anticipated return date. The regulations require him to provide that information within two working days. Here, Righi never provided that notice and, in fact, ignored all of SMC's attempts to obtain additional information. He is not entitled to the FMLA's protection.