Melissa Myers v. SUNMAN-DEARBORN COMMUNITY SCHOOLS and KELLY ROTH

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 22-1966
MELISSA MYERS,
Plaintiff-Appellant,
v.
SUNMAN-DEARBORN COMMUNITY
SCHOOLS and KELLY ROTH,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 4:20-cv-00049-SEB-DML — Sarah Evans Barker, Judge.
____________________
ARGUED JANUARY 12, 2023 — DECIDED JULY 1, 2025
____________________
Before SYKES, Chief Judge, and EASTERBROOK and RIPPLE,
Circuit Judges.
SYKES, Chief Judge. For many years Melissa Myers served
as an instructional aide at an elementary school in the Sun-
man-Dearborn Community Schools. When her husband
died, grief disrupted her work, so she took a leave of ab-
sence under the Family and Medical Leave Act (“FMLA”) at
the end of the 2017–2018 school year. Myers returned to

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2 No. 22-1966
work for the 2018–2019 school year, but in the first two
months she accumulated absences exceeding the limit of her
paid leave days. She had also exceeded her allotted leave
time in the 2017–2018 school year before taking FMLA leave.
The school principal warned Myers that she needed to
improve her attendance or face the prospect of termination.
Myers resigned and then sued the school district and the
principal alleging violations of her rights under the FMLA,
the Americans with Disabilities Act (“ADA”), and the
Fourteenth Amendment’s Equal Protection Clause. The
district court entered summary judgment for the defendants.
Myers appealed, but she lacks evidence to support any
viable theory of relief. She was neither eligible nor had a
condition qualifying for FMLA leave in the weeks preceding
her resignation, and she did not give the school district
notice that she intended to take statutory leave. She tries to
recast her claim as one for “anticipatory retaliation,” but that
theory fails for similar reasons: she has no evidence that she
could or would take FMLA leave at the start of the 2018–
2019 school year, and the evidence is insufficient to show
that the principal punished her for taking leave the year
before. The ADA claim cannot succeed because Myers was
not subjected to an adverse employment action. She argues
that she suffered a constructive discharge, but her working
conditions were not objectively intolerable and termination
was neither imminent nor unavoidable. The equal-protection
claim likewise fails for lack of proof. We therefore affirm.
I. Background
From 2001 until her resignation in the fall of 2019, Myers
was employed as an instructional aide at Bright Elementary

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No. 22-1966 3
School in the Sunman-Dearborn Community Schools in
southeastern Indiana. By all accounts her employment was
trouble free until the 2017–2018 school year. In May 2017
Myers’s husband died unexpectedly. Her mother, who had
lived with Myers and her husband, had died two years
earlier, and Myers struggled with depression from the
combined effect of her losses. For these and other reasons,
she was absent 25.5 days during the 2017–2018 school year—
14.5 days more than the 8 paid sick days and 3 paid personal
days that she was entitled to each year. Myers eventually
applied for FMLA leave, which was approved from March 1
to April 16, 2018, and then extended through the end of the
school year.
Myers returned to work at the start of the 2018–2019
school year, but her absences again piled up. By the begin-
ning of November—a little over two months into the school
year—she had used all 11 of her paid leave days and an
additional 6 days of unpaid leave. She attributes these
absences to bouts of pneumonia, bronchitis, and strep throat.
At the beginning of that school year, Kelly Roth became
the principal at Bright Elementary. Myers claims that when
the two met on the first day of school in August 2018, Roth
remarked, “Oh, … you’re Missy Myers, I’ve heard a lot
about you, you have problems at home.” Myers claims that
in the weeks that followed, Roth encouraged her to seek
counseling and once suggested that she should consider
leaving Bright Elementary and instead open her own craft
business. Myers also claims that she twice found a brochure
for counseling services in her school mailbox. Roth insists
that she did not place the brochures there but admits that
she mailed an Employee Assistance Program pamphlet to

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4 No. 22-1966
Myers because she had suffered a tragic event and Roth
believed that the program offered helpful resources to
employees.
The issue of Myers’s frequent absences came to a head in
November. Myers claims that Roth approached her in the
hallway on Friday, November 9, and said “in a harsh tone”:
“If you miss one more day, I’m going to terminate you.”
(Recall that by this point Myers had exceeded her paid-leave
allotment by 6 days.) Myers also contends, however, that
Roth promised not to write her up for her previous absences.
Despite that assurance, on the following Monday—
November 12—Roth issued the following written warning to
Myers:
I am writing to express my concern regarding
your excessive absences at work. According to
my documentation, you missed 14.5 days, in
addition to the allotted 11 sick and 3 personal
days (totaling 25.5 days) in the 2017-2018
school year.1 You have missed your allotted
8 sick and 3 personal days, and an additional
6 unpaid days (totaling 17 days) to date in the
2018-2019 school year. Your position is a valua-
ble asset to student learning. Because of this, I
expect to see a drastic improvement in attend-
ance or you will be at risk of termination due
to excessive absences.
1 The warning incorrectly states that Myers exceeded the school district’s
allotted 11 paid sick days instead of the allotted 8 paid sick days and 3
paid personal days—for a total of 11 days of approved paid leave.

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No. 22-1966 5
Myers resigned the next day. In February 2020 she sued
the Sunman-Dearborn Community Schools and Kelly Roth
alleging that they interfered with her FMLA rights and
discriminated against her under the ADA. She also brought
a claim under 42 U.S.C. § 1983 alleging that the defendants
violated her Fourteenth Amendment right to equal protec-
tion.
Following discovery, the defendants moved for summary
judgment on all claims. The district judge granted the mo-
tion, explaining that Myers’s claim for interference with her
FMLA rights failed because she did not have a condition
entitling her to FMLA leave nor had she notified school
officials of her intent to take such leave. Myers argued in the
alternative that her FMLA interference claim could be con-
strued as one for “anticipatory retaliation.” The judge rea-
soned that any retaliation theory also failed because the
evidence did not suggest that Roth had reason to believe that
Myers would use FMLA leave or punished her for her use of
FMLA leave the year before. Turning to the ADA claim, the
judge explained that the evidence was insufficient to show
that Myers was constructively discharged. And the equal-
protection claim could not proceed because Myers had not
identified any similarly situated school employee who was
treated more favorably. The judge accordingly entered
summary judgment for the defendants across the board.
II. Discussion
We review the summary judgment de novo, construing
the evidence in the light most favorable to Myers as the
nonmoving party. Trahanas v. Nw. Univ., 64 F.4th 842, 852 (7th
Cir. 2023). Summary judgment is appropriate when the
material facts are undisputed and the moving party is

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6 No. 22-1966
entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).
Not all factual disputes are material: to defeat an opponent’s
motion for summary judgment, the nonmoving party must
produce sufficient evidence to permit a jury to return a
verdict in his favor on the essential elements of his claim.
Moran v. Calumet City, 54 F.4th 483, 491 (7th Cir. 2022).
Myers argues that she produced enough evidence to pro-
ceed to a jury trial on each of her claims. We disagree.
A. FMLA Claim
The FMLA entitles an eligible employee to take up to
12 weeks of leave from work each year “[b]ecause of a
serious health condition that makes the employee unable to
perform the functions of the position.” 29 U.S.C.
§ 2612(a)(1)(D). An employer may not “interfere with, re-
strain, or deny the exercise of or the attempt to exercise” any
FMLA rights. Id. § 2615(a)(1). Retaliation for exercising
FMLA rights is also prohibited. See id. § 2615(a)(2); see also
Juday v. FCA US LLC, 57 F.4th 591, 595 (7th Cir. 2023). An
interference claim requires proof that the employer inter-
fered with, restrained, or denied an employee’s exercise of
FMLA rights to which he was entitled; proof of discriminato-
ry intent is not necessary. Id. “A retaliation claim, in contrast,
‘requires proof of discriminatory or retaliatory intent.’” Id.
(quoting Nicholson v. Pulte Homes Corp., 690 F.3d 819, 825 (7th
Cir. 2012)).
Myers does not always clearly distinguish between her
interference and retaliation theories of liability. Her argu-
ments overlap and sound in both theories. She claims that
Roth’s threat to fire her if she continued to miss work and
the subsequent written warning prevented her from apply-

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No. 22-1966 7
ing for future FMLA leave. She also contends that Roth
issued the warning in “anticipatory retaliation” for any
future leave-taking or in retaliation for her use of leave
during the 2017–2018 school year.
To prevail on a claim for interference with her FMLA
rights, Myers had the burden to establish the following five
elements: (1) she was eligible for FMLA protection; (2) her
employer was covered by the FMLA; (3) she was entitled to
take leave under the FMLA; (4) she provided sufficient
notice of her intent to take leave; and (5) her employer
“interfered with, restrained, or denied FMLA benefits to
which he was entitled.” Ziccarelli v. Dart, 35 F.4th 1079, 1089
(7th Cir. 2022). Myers’s evidence falls far short of establishing
these elements.
Start with eligibility: the FMLA defines an “eligible em-
ployee” as “an employee who has been employed … for at
least 12 months by the employer” and who has “at least
1,250 hours of service with such employer during the previ-
ous 12-month period.” 29 U.S.C. § 2611(2)(A). We’ve ex-
plained that “the statutory text is perfectly clear”: FMLA
leave rights are “conferred only on employees who have
worked at least 1,250 hours in the previous 12 months.”
Pirant v. U.S. Postal Serv., 542 F.3d 202, 206 (7th Cir. 2008)
(internal quotation marks omitted). Although Myers had
been employed by the school district for many years, she
worked only 705 hours in the 12-month period prior to
Roth’s oral and written warnings. Indeed, Myers concedes
her noneligibility, acknowledging that “she had not applied
for FMLA nor was she eligible for FMLA” when she resigned.
(Emphasis added.)

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8 No. 22-1966
That defeats her claim. In the interest of completeness,
however, we note that Myers also failed to show that she had
a serious health condition entitling her to take FMLA leave.
§ 2612(a)(1)(D). The FMLA defines a “serious health condi-
tion” as “an illness, injury, impairment, or physical or mental
condition that involves … inpatient care in a hospital, hos-
pice, or residential medical care facility[,] or … continuing
treatment by a health care provider.” § 2611(11). Myers had
previously struggled with depression after the deaths of her
mother and husband, but she does not claim that this condi-
tion interfered with her ability to work during the 2018–2019
school year. On the contrary, she agrees that she had recov-
ered well enough to return to work at the start of the 2018–
2019 school year and instead attributes her frequent absences
to discrete bouts of pneumonia, bronchitis, and strep
throat—in addition to “a low immune system,” thyroid
disease, and arthritis. She has made no effort, however, to
connect these illnesses to the statutory standard for a quali-
fying health condition.
Finally, there is no evidence that Myers gave the school
district notice of her intent to take FMLA leave. Myers points
to the fact that she called in sick multiple times and some-
times supplied doctor’s notes. But merely calling in sick “is
insufficient to put the employer on notice that the employee
may qualify for FMLA leave.” Lutes v. United Trailers, Inc.,
950 F.3d 359, 366 (7th Cir. 2020). And the doctor’s notes were
nothing more than generic templates asking the school
district to “[p]lease excuse Melissa L. Myers … from
work/school” and stating that she had “[n]o limitations” on
activity. None of these notes even hinted that Myers might
need FMLA leave. See de la Rama v. Ill. Dep’t of Hum. Servs.,
541 F.3d 681, 687 (7th Cir. 2008) (explaining that notice is not

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No. 22-1966 9
sufficient under the FMLA “if the [doctor’s] note does not
convey the seriousness of her medical condition”).
As we’ve noted, Myers tries to recast her FMLA claim
under a theory of “anticipatory retaliation.” A retaliation
claim generally requires proof that the plaintiff engaged in
FMLA-protected activity and that the employer acted with
discriminatory or retaliatory intent. Nicholson, 690 F.3d at
828. We have not explicitly endorsed a theory of “anticipa-
tory retaliation” in this context. That makes sense: an FMLA
interference claim provides employees with a cause of action
against employers who “interfere with, restrain, or deny the
exercise of or the attempt to exercise” their statutory rights.
See Ziccarelli, 35 F.4th at 1084.
Even if the concept of “anticipatory retaliation” is a dis-
tinct and viable theory of FMLA liability (an issue we do not
decide today), Myers has no claim. To repeat, she has not
shown that she either could or intended to use FMLA leave
when Roth warned her to improve her attendance. And to
the extent that Myers’s retaliation theory rests on a claim that
she was constructively discharged, her evidence is woefully
insufficient for reasons we will explain next in connection
with our analysis of the ADA claim.
B. ADA Claim
The ADA prohibits employers from discriminating
against “a qualified individual on the basis of disability.” 42
U.S.C. § 12112(a). To prevail on her ADA claim, Myers had
the burden to prove that that “(1) she is disabled; (2) she is
otherwise qualified to perform the essential functions of the
job with or without reasonable accommodation; (3) she
suffered an adverse employment action; and (4) the adverse

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10 No. 22-1966
action was caused by her disability.” Brooks v. Avancez, 39
F.4th 424, 433 (7th Cir. 2022). Myers does not argue that she
was disabled in the fall of 2018 when Roth warned her to
improve her attendance; she argues instead that Roth im-
permissibly “regarded” her as disabled, which is an alterna-
tive basis for ADA liability. 42 U.S.C. § 12102(1)(C). And
because the school district did not fire her—she resigned—
the ADA claim rests on a theory of constructive discharge.
It’s on this last point that Myers’s claim is most obviously
deficient.
“Under the constructive discharge doctrine, an employ-
ee’s reasonable decision to resign because of unendurable
working conditions is assimilated to a formal discharge for
remedial purposes.” Pa. State Police v. Suders, 542 U.S. 129,
141 (2004). In Suders the Supreme Court framed the doctrine
succinctly: “The inquiry is objective: Did working conditions
become so intolerable that a reasonable person in the em-
ployee’s position would have felt compelled to resign?” Id.
As the Court explained, if a plaintiff is subjected to severe or
pervasive unlawful harassment in the workplace—in Suders
it was sexual harassment—and the hostile environment
creates such intolerable working conditions that a reasonable
person would feel compelled to resign, then the plaintiff’s
resignation amounts to a constructive discharge, which “is
functionally the same as an actual termination.” Id. at 147–
48.
Our cases sometimes refer to two forms of constructive
discharge, “but neither dispenses with the requirement that
the work environment had become intolerable.” Chapin v.
Fort-Rohr Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010). The
first form involves an employee who resigns in response to

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No. 22-1966 11
unlawful discriminatory harassment; these cases require
evidence of working conditions “even more egregious than
that required for a hostile work environment claim because
employees are generally expected to remain employed while
seeking redress, thereby allowing an employer to address a
situation before it causes the employee to quit.” Id. (citation
omitted).2 This understanding of constructive discharge
aligns with Suders.
We have also said, however, that “[w]hen an employer
acts in a manner so as to have communicated to a reasonable
employee that she will be terminated, and the plaintiff
employee resigns, the employer’s conduct may amount to
constructive discharge.” EEOC v. Univ. of Chi. Hosps., 276
F.3d 326, 332 (7th Cir. 2002); see also Chapin, 621 F.3d at 679.
Importantly, however, we have emphasized that this form of
constructive discharge “does not eliminate the need for the
plaintiff to show that his working conditions had become
intolerable.” Id. at 679. Indeed, retaining the requirement of
objectively intolerable working conditions is necessary to
2 Myers argues on appeal that the district judge “overlooked” her
standalone claim against the defendants for subjecting her to a hostile
work environment. Not so. Myers never mentioned such a claim below;
rather, her only reference to a “hostile work environment” in her sum-
mary-judgment brief was to describe the test for constructive discharge.
We have squarely rejected attempts to raise claims of a hostile work
environment for the first time on appeal. See, e.g., Hackett v. City of South
Bend, 956 F.3d 504, 509 (7th Cir. 2020) (explaining that the conduct
underlying a retaliation claim and a hostile-environment claim may
overlap in the employment-discrimination context, but “the[y] are
legally distinct theories” and “a plaintiff needs to spell out these distinct
theories separately” to give “the district judge fair notice that the theory
is being asserted”).

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12 No. 22-1966
conform to the Supreme Court’s articulation of the doctrine
in Suders. Moreover, an employee’s working conditions do
“not become intolerable or unbearable merely because a
‘prospect of discharge lurks in the background.’” Id. (quot-
ing Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 333 (7th
Cir. 2004)).
Properly understood, the constructive-discharge doctrine
does not help Myers here. No evidence suggests that she
suffered serious or persistent harassment based on an actual
or perceived disability, much less that her working condi-
tions were objectively intolerable. Her anodyne and infre-
quent run-ins with Roth do not suffice under the objective
test. Nor is there sufficient evidence to establish that Myers
“immediately and unavoidably [would] be terminated,”
Ziccarelli, 35 F.4th at 1091 (quotation marks omitted). She
risked being fired if she did not improve her attendance, but
that does not amount to an imminent and unavoidable
termination. Because the evidence falls far short of what’s
needed to establish a constructive discharge, Myers’s ADA
claim fails.
C. Equal-Protection Claim
We close by briefly addressing Myers’s equal-protection
claim, which never really got off the ground because she
produced no evidence that she was treated differently from
others similarly situated. See Smith v. City of Chi., 457 F.3d
643, 650–51 (7th Cir. 2006) (outlining the requirements for a
plaintiff to prove an equal-protection claim). Myers made no
effort to identify any similarly situated employee who was
treated more favorably. Instead, she relied entirely on Roth’s
deposition testimony in which she was asked if other in-
structional aides ever exceeded their allotted sick days. Roth

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No. 22-1966 13
replied: “Yes, you’ll have that. In administration, I’ve seen
that happen. They’ll go a few days over, but it’s not typical to
run out of days in October.” That’s far from sufficient to
satisfy Myers’s burden on the constitutional claim.3
AFFIRMED
3 In a final argument, Myers raises a brief procedural challenge to the
district judge’s decision to strike portions of her surreply to the defend-
ants’ summary-judgment motion. Under the district court’s Local Rule
56-1(d) “[a] party opposing a summary judgment motion may file a
surreply brief only if the movant cites new evidence in the reply or objects to
the admissibility of the evidence cited in the response. The surreply …
must be limited to the new evidence and objections.” (Emphases added.) As
we have said many times, “district courts may require strict compliance
with their local rules.” Hinterberger v. City of Indianapolis, 966 F.3d 523, 528
(7th Cir. 2020). District judges have wide latitude to interpret and apply
their local rules in individual cases; our review is highly deferential, for
abuse of discretion only. Id. There was no abuse of discretion here. The
judge applied the local rule and made a reasonable judgment about
which portions of Myers’s surreply did not conform to its terms.

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