No Right Without Eligibility: Seventh Circuit Rejects “Anticipatory” FMLA Retaliation and Re-Affirms the High Bar for Constructive Discharge

1. Introduction

Melissa Myers, a veteran instructional aide at Bright Elementary in the Sunman-Dearborn Community Schools (Indiana), resigned after receiving warnings about her extensive absenteeism. She then sued the school district and the new principal, Kelly Roth, alleging:

• Interference and retaliation under the Family and Medical Leave Act (FMLA);
• Discrimination under the Americans with Disabilities Act (ADA); and
• A “class-of-one” equal-protection violation under 42 U.S.C. § 1983.

The district court granted summary judgment for the defendants, and the Seventh Circuit affirmed in full. Judge Sykes, writing for a unanimous panel (Sykes, C.J., Easterbrook, and Ripple, JJ.), used the case to clarify two significant points:

1. An employee cannot claim interference or retaliation—“anticipatory” or otherwise—if she was not FMLA-eligible at the relevant time, had no qualifying condition, and gave no FMLA notice.
2. Constructive discharge remains an objectively intolerable standard; a mere threat of possible future termination or sporadic discourtesy will not suffice.

2. Summary of the Judgment

The Court of Appeals affirmed summary judgment because Myers lacked evidence on the essential elements of each claim:

• FMLA: She had worked only 705 of the required 1,250 hours; offered no proof of a “serious health condition” in fall 2018; and never put the school on FMLA notice. The panel explicitly doubted the viability of “anticipatory retaliation” but held that, even if cognizable, the theory failed here.
• ADA: Myers was not disabled (nor “regarded as” disabled) and, crucially, she suffered no adverse action; her resignation did not meet the stringent test for constructive discharge.
• Equal Protection: She identified no similarly situated employee treated more favorably, dooming her class-of-one claim.

3. Analysis

3.1 Precedents Cited and Their Influence

The opinion is a roadmap through leading Seventh Circuit (and one Supreme Court) authorities:

• Ziccarelli v. Dart, 35 F.4th 1079 (7th Cir. 2022) – supplied the five-element test for FMLA interference and the reminder that constructive discharge requires intolerable conditions.
• Pirant v. U.S. Postal Service, 542 F.3d 202 (7th Cir. 2008) – definitive on the 1,250-hour eligibility requirement; quoted to emphasize statutory clarity.
• Juday v. FCA US LLC, 57 F.4th 591 (7th Cir. 2023) & Nicholson v. Pulte Homes Corp., 690 F.3d 819 (7th Cir. 2012) – distinguished the intent-free interference theory from intent-driven retaliation claims.
• Lutes v. United Trailers, Inc., 950 F.3d 359 (7th Cir. 2020) & de la Rama v. Illinois DHS, 541 F.3d 681 (7th Cir. 2008) – clarified that “calling in sick” or submitting generic doctor’s notes is not FMLA notice.
• Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) – the Supreme Court’s seminal constructive-discharge test; adopted wholesale by the panel.
• Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673 (7th Cir. 2010) & EEOC v. University of Chicago Hospitals, 276 F.3d 326 (7th Cir. 2002) – recognized two constructive-discharge paradigms, both demanding intolerability.
• Smith v. City of Chicago, 457 F.3d 643 (7th Cir. 2006) – outlined elements of a class-of-one equal-protection claim (comparators required).
• Hinterberger v. City of Indianapolis, 966 F.3d 523 (7th Cir. 2020) – affirmed district courts’ discretion to enforce strict local rules, validating the lower court’s decision to strike portions of Myers’s sur-reply.

By weaving these precedents together, the panel reaffirmed doctrinal consistency and left little doubt about the evidentiary burdens facing future plaintiffs.

3.2 Legal Reasoning in Depth

a. FMLA Analysis

1. Statutory Eligibility: 29 U.S.C. § 2611(2)(A) requires 1,250 hours worked in the previous 12 months. Myers conceded she had only 705 hours, which the court deemed “fatal.”
2. Serious Health Condition: The court scrutinized § 2611(11). Myers’s ailments (bronchitis, pneumonia, etc.) were episodic and not linked to continuing treatment or inpatient care. Without medical evidence tying them to the statutory definition, she fell short.
3. Notice: Under Seventh Circuit precedent, an employer must be on “sufficient notice.” Myers’s routine absentee calls and generic notes signaled nothing about FMLA leave.
4. “Anticipatory Retaliation”: The court declined to bless or reject the theory categorically but held that, even if actionable, it demands a threshold showing that leave could or would be taken—missing here.

b. ADA Analysis

Using the four-part Brooks v. Avancez framework, the panel focused on the third prong (adverse action). Myers posited constructive discharge; the court applied Suders:

• Conditions were not objectively intolerable—only a single hallway threat and a subsequent written warning.
• Termination was not “imminent and unavoidable;” Myers had the option to improve attendance.

c. Equal-Protection Analysis

Class-of-one plaintiffs must identify a comparator who is:

• Similarly situated in all material respects; and
• Treated more favorably without a rational basis.

Myers offered none—therefore, summary judgment was “inevitable.”

3.3 Likely Impact of the Decision

Although fact-bound, the opinion resonates beyond the parties:

1. FMLA Litigation: Plaintiffs cannot circumvent the clear eligibility prerequisites by labeling a claim “anticipatory retaliation.” Employers may rely on rigorous hour-count assessments.
2. Constructive Discharge Doctrine: By emphasizing the objective-intolerability requirement, the Seventh Circuit curtails attempts to transform ordinary workplace friction into de facto terminations.
3. Employer Best Practices: The opinion validates written warnings addressing attendance where grounded in policy; employers should document hour counts, leave balances, and communications to rebut later claims.
4. Plaintiff Counsel Strategy: Attorneys must marshal concrete medical evidence and comparator data early, else face summary judgment.
5. Comparative Circuits: Other circuits considering “anticipatory retaliation” may look to Myers for persuasive reasons to reject or restrict the theory.

4. Complex Concepts Simplified

• FMLA Eligibility (1,250-Hour Rule): Think of it as a frequent-flier threshold—you must accumulate enough “work-time miles” (1,250 hours ≈ 31 full-time weeks) before you can spend your FMLA “reward points.”
• Serious Health Condition: Not every illness qualifies. The statute targets conditions requiring inpatient care or continuing treatment, like surgery or ongoing therapy, not a one-off cold.
• Interference vs. Retaliation:
  • Interference: Employer blocks leave regardless of motive.
  • Retaliation: Employer punishes someone because they took or tried to take leave.
• Constructive Discharge: A resignation converts into a termination only when a reasonable person would feel forced out—akin to jumping off a ship that is already sinking fast, not merely because the captain scolded you.
• Class-of-One Equal Protection: Imagine two nearly identical employees standing side-by-side. If only one is punished and there’s no rational explanation, the punished one may sue. Here, Myers never found her “twin.”

5. Conclusion

Melissa Myers v. Sunman-Dearborn Community Schools underscores that statutory rights are not free-floating guarantees—they attach only when the employee meets the law’s concrete prerequisites and communicates clearly. The Seventh Circuit’s refusal to stretch FMLA or ADA doctrines to cover Myers’s predicament preserves doctrinal integrity and gives employers a clearer map of their obligations. Going forward, would-be plaintiffs must clear the eligibility, notice, and intolerability hurdles before proceeding to trial, while employers should continue meticulous record-keeping and reasonable but firm attendance enforcement. In short, “no right without eligibility” is now the unmistakable mantra in the Seventh Circuit.