Filed: Jan. 12, 1999
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 12 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk OSBAND J. HOLMES, Plaintiff-Appellant, v. No. 98-3056 (D.C. No. 96-CV-1424) THE BOEING COMPANY, (D. Kan.) Defendant-Appellee. ORDER AND JUDGMENT * Before PORFILIO , BALDOCK , and HENRY , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without or
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 12 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk OSBAND J. HOLMES, Plaintiff-Appellant, v. No. 98-3056 (D.C. No. 96-CV-1424) THE BOEING COMPANY, (D. Kan.) Defendant-Appellee. ORDER AND JUDGMENT * Before PORFILIO , BALDOCK , and HENRY , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without ora..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 12 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
OSBAND J. HOLMES,
Plaintiff-Appellant,
v. No. 98-3056
(D.C. No. 96-CV-1424)
THE BOEING COMPANY, (D. Kan.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Osband J. Holmes appeals from a summary judgment granted in
favor of defendant Boeing Company, which was his former employer. Plaintiff
alleges that defendant violated the Family and Medical Leave Act (FMLA), 29
U.S.C. §§ 2601-2654 (Supp. 1998), when it terminated his employment after he
had taken medical leave. Our jurisdiction arises under 28 U.S.C. § 1291, and we
affirm.
I. Background facts
The following facts are undisputed. Plaintiff began working for defendant
in 1986 and had attendance problems in 1989 through 1991. See Appellee’s
Supp. App. at 37-50. He was diagnosed with an ulcer at least by November 22,
1994. He missed several weeks of work between September 13 and October 19,
1994, and failed to comply with defendant’s or the FMLA’s leave requirements.
See
id. at 39. Instead of discharging him, however, on October 19 defendant
counseled him on the need to comply with defendant’s absence policies and
allowed him to take retroactive FMLA leave. See
id. He was instructed that the
FMLA did not provide for unauthorized absences, see Appellant’s App. at 12, and
that if he was going to miss any more work because of illness, he would need to
speak directly to his supervisor or his personnel representative, see Appellee’s
Supp. App. at 74-75. On November 1st and 3rd, 1994, plaintiff missed work but
complied with defendant’s requirements and was granted additional FMLA leave.
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See Appellant’s App. at 17. He was again absent from work from November 10
through November 22. He testified that he called Bill Johnson, his union steward
on the 10th and told him he was ill, see Appellee’s Supp. App. at 80-81, and there
is evidence that he called an automated absence reporting line on November 14
and 16, stating that he was ill, see Appellant’s App. at 17. Plaintiff admits,
however, that he never talked with either his supervisor or his personnel manager
as he had been instructed to do. See Appellee’s Supp. App. at 80. His reason for
not calling as instructed was that, according to the employee manual, “when
you’re absent, you call absentee reporting.”
Id. at 74, 89. On November 22
defendant terminated plaintiff’s employment because of extended absence. See
Appellant’s App. at 17. On the same day, Plaintiff brought in an undated note
from his doctor that stated only that he “was seen today. Diagnosis: pyloric ulcer
. . . needs endoscopy.”
Id. at 16.
II. Standard of review
We review the district court’s grant of summary judgment de novo. See
McKnight v. Kimberly Clark Corp. ,
149 F.3d 1125, 1128 (10th Cir. 1998). In
conducting that review,
[w]e examine the record to determine whether any genuine issue of
material fact was in dispute; if not, we determine [whether] the
substantive law was applied correctly, and in so doing we examine
the factual record and reasonable inferences therefrom in the light
most favorable to the party opposing the motion. However, where the
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nonmoving party will bear the burden of proof at trial on a
dispositive issue, that party must go beyond the pleadings and
designate specific facts so as to make a showing sufficient to
establish the existence of an element essential to that party’s case in
order to survive summary judgment.
Id. (quotations and citations omitted).
III. Discussion
The FMLA entitles an eligible employee to take a total of twelve
workweeks of leave during any twelve-month period for serious health conditions
that make the employee unable to perform his/her job functions. See 29 U.S.C.
§ 2612(a)(1)(D). Section 2615(a)(1) prohibits employers from interfering with,
restraining, or denying the exercise of or attempt to exercise FMLA rights. The
FMLA also provides that if an employee takes FMLA leave, he/she is entitled on
return from such leave to be restored to his/her former position of employment or
to an equivalent position. See § 2614(a)(1). Section 2614 also provides that:
[n]othing in this subsection shall be construed to prohibit an
employer from requiring an employee on leave under section 2612 of
this title to report periodically to the employer on the status and
intention of the employee to return to work.
29 U.S.C. § 2614(a)(5). In its summary judgment motion, defendant argued that
plaintiff was not entitled to FMLA leave (1) because he never asked for leave
until after he was terminated; (2) because he failed to provide defendant with
adequate and timely notice of the reason for his absences; and (3) because he
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could not establish that he was incapacitated by a “serious health condition.” See
Appellee’s Supp. App. at 15. For summary judgment purposes, the district court
assumed that plaintiff’s November absences were covered under the FMLA and
that he would have been entitled to leave. See
id. at 119. The court concluded,
however, that under section 2614(a)(5) and the facts leading to plaintiff’s
termination, defendant properly refused to restore plaintiff’s employment position
and that plaintiff’s discharge was justified. See
id. at 120.
On appeal, plaintiff argues that calling his union steward and the automated
line was sufficient notice to defendant of the need for FMLA leave because
defendant’s reporting requirements violated 29 C.F.R. § 825.303(a). According to
plaintiff, section 825.303(a) allows an ill employee at least two working days to
give notice to an employer of the need for FMLA leave when the need for leave is
not foreseeable and prohibits an employer from imposing additional requirements.
We disagree. Section 825.303(a) states that an employee should give his/her
employer notice of the need for FMLA leave
as soon as practicable under the facts and circumstances of the
particular case. It is expected that the employee will give notice . . .
within no more than one or two working days of learning of the need
for leave, except in extraordinary circumstances where such notice is
not feasible. In the case of a medical emergency requiring leave
because of an employee’s own serious health condition . . . written
advance notice pursuant to an employer’s internal rules . . . may not
be required when FMLA leave is involved.
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Thus, only in emergencies are an employer’s advance written-notice requirements
precluded by this section, and the “ no more than ” one-to-two day delay in
notifying an employer is the outer limit of reasonable notice. The FMLA does not
prohibit an employer from requiring its employees to give notice to specific
company supervisors on the day the employee is going to be absent in a
nonemergency situation, as in this case. See 29 U.S.C. § 2614(a)(5). Plaintiff has
not alleged that his physical condition was such that he could not comply with
defendant’s reasonable notice requirements.
Plaintiff next argues that § 2614(a)(5) is inapplicable because it applies
only to those employees already on FMLA leave. This argument ignores the
district court’s assumption for summary judgment purposes that plaintiff was on
FMLA leave when defendant refused to restore him to his employment position,
and therefore fails.
Citing Richmond v. Oneok, Inc. ,
120 F.3d 205, 209 (10th Cir. 1997),
plaintiff next argues that because the district court assumed that he was entitled to
FMLA leave for the November absences, to avoid summary judgment on an
FMLA retaliation claim, 1
he was required only to present evidence of absence
1
Because plaintiff’s complaint is not part of the record on appeal, we do not
know whether he in fact originally asserted an FMLA retaliation claim. The
district court’s order states that he asserted a claim for violation of the FMLA and
a state law retaliatory discharge claim, see Appellee’s Supp. App. at 116, but then
(continued...)
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from work because of a serious health condition and adverse action taken by
defendant closely following that absence. Although it appears that the district
court’s ruling on a retaliation claim was unnecessary because plaintiff had not
pleaded or otherwise raised an FMLA retaliation claim, assuming that such a
claim was raised, we hold that the court properly analyzed the claim under
Morgan v. Hilti, Inc. ,
108 F.3d 1319 (10th Cir. 1997). In Morgan we stated that
when a plaintiff has made a prima facie showing that he/she has been terminated
in retaliation for exercising rights under the FMLA,
the burden shifts to the employer to offer a legitimate
nondiscriminatory reason for its employment decision. If the
employer comes forward with a nondiscriminatory reason for its
actions, the burden then reverts to the plaintiff to show that “there is
a genuine dispute of material fact as to whether the employer’s
proffered reason for the challenged action is pretextual--i.e.,
unworthy of belief.”
. . . “[M]ere conjecture that [the] employer's explanation is a
pretext for intentional discrimination is an insufficient basis for
denial of summary judgment.”
Id. at 1323 (quotations and citations omitted). Plaintiff has failed to offer any
evidence that defendant’s proffered reasons for discharge--plaintiff’s excessive
1
(...continued)
states that “[u]nder the facts of this case, [plaintiff] is making three FMLA
claims,” including one for retaliation for seeking leave or for previously using
leave under the FMLA,
id. at 119 (emphasis added). The pretrial order does not
contain any FMLA retaliation issues or claims. See
id. at 2-4. Defendant’s
summary judgment motion did not mention FMLA retaliation claims. See
id. at
15.
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absenteeism and failing to follow specific instructions when he was going to be
absent from work--were pretextual. Cf.
id. at 1324-25; Richmond , 120 F.3d at
209 (stating that to avoid summary judgment plaintiff must carry its burden of
presenting evidence from which pretext may be inferred when employer has met
burden of giving legal, nonretaliatory reason for discharge).
The judgment of the United States District Court for the District of Kansas
is AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
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