[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 09-11597                   Dec. 14, 2009
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                     D. C. Docket No. 06-00090-CV-1

BRENDA JOYCE LOWERY,

                                                           Plaintiff-Appellant,

                                  versus

RONALD STRENGTH,
Sheriff,
GENE JOHNSON,
Captain,
KEN RODGERS,
Investigator,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                           (December 14, 2009)

Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
PER CURIAM:

          Brenda Lowery, proceeding pro se, appeals the district court’s grant of

summary judgment in favor of Ronald Strength, the Sheriff of Richmond County.

After Lowery, a deputy jailor, was involved in a physical altercation at a local

restaurant, Strength terminated her employment. After several amendments to her

complaint, Lowery proceeded against Strength alleging that he 1) interfered with

her FMLA rights, and 2) wrongfully terminated her in violation of her due process

rights.

          We review a district court order granting summary judgment de novo,

viewing all of the facts in the record in the light most favorable to the non-moving

party. Brooks v. County Comm’n of Jefferson County, Ala., 

, 1161-

62 (11th Cir. 2006). “Summary judgment is appropriate when ‘there is no genuine

issue as to any material fact and . . . the moving party is entitled to a judgment as a

matter of law.’” Wilson v. B/E/ Aerospace, Inc., 

, 1085 (11th Cir.

2004) (quoting Fed.R.Civ.P. 56(c)). “A genuine factual dispute exists if the jury

could return a verdict for the non-moving party.” 

citation

omitted).

I.        FMLA Interference

          The FMLA provides that “an eligible employee shall be entitled to a total of

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12 workweeks of leave during any 12-month period . . . [b]ecause of a serious

health condition that makes the employee unable to perform the functions of the

position of such employee.” 29 U.S.C. § 2612(a)(1)(D). A serious health condition

is an illness, injury, impairment, or physical or mental condition that involves: (1)

inpatient care; or (2) continuing treatment by a health care provider. 

      An employee shall provide at least verbal notice sufficient to make the

employer aware that the employee needs FMLA-qualifying leave. 29 C.F.R

§§ 825.302(c), 825.303(b). Absent unusual circumstances, however, an employer

may require an employee to comply with the employer’s usual and customary

notice and procedural requirements for requesting leave. 

825.302(d),

825.303(c).

      Generally, employees are required to provide employers with at least 30

days’ notice before taking FMLA leave. 29 U.S.C. § 2612(e)(2)(B). When

advance notice is not practicable because the need for leave is unforeseeable, the

employee should give the employer notice as soon as practicable. Cruz v. Publix

Super Markets, Inc., 

, 1382 (11th Cir. 2005) (citing 29 C.F.R.

§ 825.303(a)). Notice may be given by the employee’s spokesperson, such as the

employee’s spouse, if the employee is unable to do so. Id, § 825.303(a). When



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“an employee’s need for FMLA leave is unforeseeable, the employee need only

provide [his] employer with notice sufficient to make the employer aware that [his]

absence is due to a potentially FMLA-qualifying reason.” 

(quotation omitted). On the other hand, not all leave requested or taken for

medical reasons qualifies for FMLA protection. Cash v. Smith, 

,

1307 (11th Cir. 2000).

       “Unless the employer already knows that the employee has an

FMLA-approved reason for leave, the employee must communicate the reason for

the leave to the employer; the employee cannot just demand leave.” Cruz, 

give sufficient notice, the employee must inform the employer of a

potentially FMLA-qualifying reason. 

When an employee provides the

employer with sufficient notice “that potentially FMLA-qualifying leave is needed,

the employer must then ascertain whether the employee’s absence actually

qualifies for FMLA protection.” 

      Additionally, the FMLA provides: “It shall be unlawful for any employer to

interfere with, restrain, or deny the exercise of or the attempt to exercise, any right

provided under [the FMLA].” 29 U.S.C. 2615(a)(1). “To state a claim of

interference with a [FMLA] substantive right, an employee need only demonstrate

by a preponderance of the evidence that he was entitled to the benefit denied.”



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Strickland v. Waterworks and Sewer Bd. of the City of Birmingham, 

,

1206-07 (11th Cir. 2001). Alternatively, an employee may demonstrate that the

employer interfered with the FMLA benefit. O'Connor v. PCA Family Health

Plan, Inc., 

, 1353-54 (11th Cir. 2000). “‘Interfering with’ the

exercise of an employee's rights would include, for example, not only refusing to

authorize FMLA leave, but discouraging an employee from using such leave.” 29

C.F.R. 825.220(b).

      Here, Lowery presented no evidence that Strength knew she was seeking

FMLA leave, much less that he somehow sought to discourage her from using

FMLA leave or to punish her for having done so. The evidence shows that, after a

warrant was issued for Lowery’s arrest, she was asked to attend a disciplinary

hearing. At the Review Hearing, Lowery’s alleged FMLA leave was not

discussed. In addition, Lowery does not allege that she experienced problems in

taking leave after she had a nervous breakdown.

      Moreover, Lowery has not shown, even if she had been on FMLA leave, that

calling upon her to attend a disciplinary hearing was an act of interference with her

FMLA rights. The evidence shows that Strength, during his tenure as RCSD

Sheriff, fired 23 of 25 RCSD employees that committed criminal acts. Lowery has

presented no evidence that Strength terminated her to deny her FMLA benefits.



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      Additionally, the evidence shows that Lowery never applied for FMLA

leave. According to Lowery, she submitted several documents to inform the

RCSD that she was requesting FMLA leave. However, even if one could assume

that the RCSD received each of these documents at some point before the July 15th

disciplinary hearing, Lowery’s documents did not put the RCSD on notice of

potential FMLA-qualifying leave. See 

. Lowery relies

on a certificate from her doctor which stated that Lowery could return to work on

June 30, 2004, and simply said that her previous absence was due to “medical

reasons.” Lowery also relies on a letter dated July 14, 2004, stating that, since

May 2004, Lowery’s doctor had been treating her for depression and anxiety.

Finally, Lowery points to another letter from her doctor concerning Lowery’s

absence from work for “medical reasons,” although this letter is undated and does

not specify the most recent date of care. None of these documents informed RCSD

that on the day of her hearing, Lowery was suffering from a condition that might

qualify her for FMLA leave.

II.   Procedural Due Process

      In order to establish a procedural due process violation under 42 U.S.C. §

1983, a plaintiff must show: “(1) a deprivation of a constitutionally-protected

liberty or property interest; (2) state action; and (3) constitutionally-inadequate



                                           6
process.” Grayden v. Rhodes, 

, 1232 (11th Cir. 2003). Public

employees who can be discharged only for cause have a constitutionally protected

property interest in their employment, which cannot be terminated without due

process. See Board of Regents of State Colleges v. Roth, 

, 578, 

, 

(1972). Due process requires that “a deprivation of

life, liberty, or property be preceded by notice and opportunity for hearing

appropriate to the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 

, 542, 

, 1493, 

(1985). We have explained

that notice in this context is sufficient if it notifies the public employee of the

charges against him and is timely. Harrison v. Wille, 

, 684 (11th Cir.

1998). So, “a full evidentiary hearing is not required,” and the pre-termination

hearing does not “have to establish conclusively the propriety of the termination.”

employee “need only be given an opportunity to present his side of

the story.” 

local procedure is inadequate, we will consider any

procedures that would be made available as a judicial remedy under applicable

state law. See generally Cotton v. Jackson, 

, 1331-33 (11th Cir.

200) (considering remedies under Georgia law).

      As an initial matter, to the extent Lowery makes a substantive due process

claim, we need not address that claim because the district court did not authorize



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Lowery to proceed on such a claim and Lowery has not shown that the district

court improperly construed or regulated her pleadings below. In any event, our

decision in McKinney v. Pate, 

, 1560-61 (11th Cir. 1994) (en banc),

would render such a claim futile. Further, as discussed in Issue I above, because

Lowery has made no showing that Strength interfered with her alleged FMLA

rights, we need not address whether Strength was entitled to qualified immunity.

      Here, Lowery was informed of the Review Board hearing and afforded an

opportunity to present evidence on her behalf. See 

,

105 S.Ct. at 1493. Lowery was informed that a Review Board hearing was

scheduled to discuss her involvement in the restaurant altercation. At the hearing,

Lowery and her husband testified and presented character statements on Lowery’s

behalf. The results of the investigation of the restaurant incident were also

presented to Lowery. Lowery’s argument that she was entitled to a more

comprehensive hearing is misplaced. We simply require that a public employee

receive timely notice, and be given an opportunity to present her side of the story.

See 

. Moreover, Georgia’s law supplies a further remedy for

any perceived deficiencies in the Sheriff’s procedures, and there is no indication

that Lowery sought a state law remedy for her grievances. See 

. Lowery’s hearing met the minimal requirements of due process, and,



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accordingly, the district court’s grant of summary judgment on Lowery’s

procedural due process claim is affirmed.

      AFFIRMED.




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