absences in December were due to the episodic and unforeseeable kidney pain described
by Ms. Espindola. Particularly given Apple King’s knowledge that Ms. Espindola was
having a difficult pregnancy, 7 a reasonable fact finder could conclude that Ms.
Espindola’s notice of debilitating kidney stone pain was sufficient to place Apple King
on notice that Ms. Espindola was invoking the right to FMLA/WFLA protected leave.
See Byrne v. Avon Prods., 328 F.3d 379, 381 (7th Cir. 2003) (An employee’s unusual
behavior, alone, can provide notice that “something had gone medically wrong.”). 8
Although the record supports a finding that Ms. Espindola provided sufficient
notice of the need for FMLA/WFLA leave in July and December of 2011, Apple King
did not provide protected leave or conduct an investigation. Instead, Apple King used
Ms. Espindola’s absences on July 20 and December 9, 19, 20, and 30 as negative factors
in its ultimate decision to terminate Ms. Espindola’s employment. Apple King assessed
Ms. Espindola a total of 11 adverse attendance points for the aforementioned absences,
causing her to exceed the maximum number of attendance points per year by 5 points.
7
Not only had Ms. Espindola been placed on bed rest during her pregnancy, she
was also hospitalized as a result of kidney stones and diagnosed with gestational diabetes.
8
Ms. Espindola also had unexcused absences in October and November. We do
not assess whether those absences were governed by the same analysis as the December
absences as it is unnecessary for purposes of this appeal.
20
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No. 35262-5-III
Espindola v. Apple King
Apple King claims it was justified in assessing Ms. Espindola points for the