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Click here for the full text of this decision The FMLA requires that notice be given the employer when such leave is foreseeable. FACTS:Barbara Horelica met with her job supervisor at Fiserv Solutions, as well as the human resources manager, to talk about Horelica’s absenteeism and tardiness. At this time, Horelica told the HR manager that she had some medical issues to deal with, but she did not tell the manager that she was contemplating having foot surgery. The HR manager suggested Horelica might take leave under the Family Medical Leave Act if she needed to. Three days later, Horelica scheduled her foot surgery for May 26, and doctors told her she may need up to six weeks for recovery. She did not tell anyone at Fiserv about the surgery, but the day before the surgery, she told the HR manager that she would not be in on the 26th. She also told the company vice president that she would be away that day, a Friday, as well as the following Monday. Horelica did not go to work on Monday, a holiday, and she had a scheduled vacation day on Tuesday. On Wednesday, she left a voicemail for her supervisor asking him to return her call, but not giving any details. She did not contact anyone on Thursday or Friday, which was June 2. Horelica did not show up for work or contact anyone the following week. Fiserv terminated her on June 8 for “job abandonment.” The next day, Horelica’s doctor faxed Fiserv the FMLA papers Horelica had given him on the 2nd. Horelica sued Fiserv for retaliation and discrimination based for her use of FMLA leave. The trial court granted Fiserv’s motion for summary judgment, which was based on their assertion that Horelica had not made a prima facie showing of retaliation. HOLDING:Affirmed. The court sets out several relevant portions of the FMLA. In general, an eligible employee shall be entitled to a total of 12 work weeks of leave during any 12-month period because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. Notice must be given to the employer when leave is foreseeable, and the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer. In addition, the employee shall provide the employer with not less than 30 days’ notice before the date the leave is to begin if the need for the leave is foreseeable and based on planned medical treatment for a serious health condition; if 30 days’ notice is not feasible, the employee should provide such notice as is practicable. To make a prima facie showing of retaliation under the FMLA, a plaintiff must show: 1. she was protected under the FMLA; 2. she suffered an adverse employment decision; and either 3a. she was treated less favorably than an employee who had not requested leave under the FMLA; or 3b. the adverse decision was made because she took FMLA leave. Horelica knew of the need for surgery no later than May 8 and knew for at least one week before May 26 that her surgery would be on that day. She did not, however, inform her employer until the 25th, which is not sufficient notice under FMLA. Nor did Horelica apprise her employer of the nature or seriousness of her health condition. Even if the May 5 conversation could be interpreted as such apprisement, she still did not give Fiserv the timing or duration of her leave; she simply failed to show up. “Horelica’s actions fail to meet either the 30-day notice requirement or the “as soon as practicable’ notice requirement of the FMLA.” OPINION:Green, J.; Stone, Green and Angelini, JJ.

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