employee’s notice need not provide definitive proof of the right to take protected leave.
All that needs to be raised is “probable basis” to believe the employee is entitled to
FMLA/WFLA leave. Aubuchon v. Knauf Fiberglass, GmbH, 359 F.3d 950, 953 (7th Cir.
17
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No. 35262-5-III
Espindola v. Apple King
2004). Once this is satisfied, the employer is obliged to either grant protected leave
or investigate whether the employee’s condition qualifies for leave. 29 C.F.R.
§§ 825.301(a), .302(c); Lichtenstein, 691 F.3d at 303; Burnett v. LFW Inc., 472 F.3d 471,
480 (7th Cir. 2006).
Application of the adequate notice requirement to Ms. Espindola
Whether Ms. Espindola provided Apple King adequate notice of the need for
FMLA/WFLA leave is a question of fact. Lichtenstein, 691 F.3d at 303. Thus, Apple
King is entitled to summary judgment only if, viewing the record in the light most
favorable to Ms. Espindola, no reasonable fact finder could rule in her favor.
It is undisputed that Ms. Espindola notified Apple King of her pregnancy in June
or July 2011. Given that pregnancy is the type of condition that can reasonably create the
need for unforeseeable protected leave, Ms. Espindola’s burden of providing additional
notice of incapacitation during the course of her pregnancy was at least somewhat
reduced. See 29 C.F.R. § 825.302(c) (notice that “employee is pregnant” may be
sufficient); Aubuchon, 359 F.3d at 953 (note that pregnant woman was having
complications would be sufficient, “despite the absence of details”). In like manner, once
it was aware of Ms. Espindola’s pregnancy, the expectation that Apple King would be