231 F.3d 791 (11th Cir. 2000), 98-02558, Brungart v Bellsouth Telecommunications

Docket Nº:D.C. Docket No. 98-02558-CV-AR-S
Citation:231 F.3d 791
Party Name:ROBIN AMARO BRUNGART, Plaintiff-Appellant, v. BELLSOUTH TELECOMMUNICATIONS, INC., Defendant-Appellee. No. 99-14472
Case Date:October 24, 2000
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 791

231 F.3d 791 (11th Cir. 2000)

ROBIN AMARO BRUNGART, Plaintiff-Appellant,



No. 99-14472

D.C. Docket No. 98-02558-CV-AR-S


October 24, 2000

Page 792

[Copyrighted Material Omitted]

Page 793

Appeal from the United States District Court for the Northern District of Alabama

Before CARNES, MARCUS and FARRIS[*], Circuit Judges.

CARNES, Circuit Judge:

Robin Amaro Brungart appeals from the district court's grant of summary judgment in favor of BellSouth Telecommunications, Inc. ("BellSouth"), on her claims under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. Brungart argues she was wrongfully denied FMLA leave pursuant to 29 C.F.R. § 825.110(d) and also that BellSouth retaliated against her in violation of the FMLA. This appeal primarily presents two issues: (1) whether that part of the notice provision of the § 825.110(d) regulation which purports to create eligibility based upon the failure of an employer to notify the employee of ineligibility within a specified time is a valid interpretation of the FMLA; and (2) whether termination of an employee the day before the commencement of scheduled FMLA leave always creates a genuine issue of material fact about the causal connection element for a prima facie case of discrimination. We answer both questions in the negative.


In February 1991 Robin Amaro Brungart began working for BellSouth in Florida as a service representative. On December 1, 1994 she began an unpaid leave of absence which lasted until September 1996. On September 23, 1996, Brungart was transferred to a service representative position for BellSouth in Birmingham, Alabama, and began a three week training program.

On December 2, 1996, Brungart's mother was hospitalized for emergency heart surgery. Brungart told her supervisors that she wanted to apply for FMLA leave effective immediately, and she submitted an FMLA leave application form, all on that same day.

Later that day, Brungart attempted to call one of her supervisors, Peggy Thompson, but was unable to reach her. Afterward, Thompson called Brungart who was

Page 794

at the hospital, and Brungart informed her that she would be off from work for the next ten days due to her mother's condition. Thompson told Brungart to keep in touch with the office every few days. Brungart did so, but on December 10, 1996, Thompson called Brungart and told her that she had been listed as a "no report" because she had not called in every day. Brungart responded that she had not been told to call in every day. The next day, Brungart called Thompson to let her know that she would not be at work due to her mother's condition. Brungart was written up for not calling in that day before her shift started. When Brungart eventually returned to work, she received a written reprimand for her absence.

By letter dated January 16, 1997, BellSouth denied Brungart's December 2, 1996 request for FMLA leave. The grounds BellSouth gave for the denial was that Brungart had not worked 1,250 hours in the past 12 months, which is the minimum number of hours the FMLA requires before an employee is entitled to statutorily protected leave.

As a service representative, Brungart's job was to answer calls from customers wishing to discuss service orders. To maintain customer service, BellSouth measures the amount of time service representatives are actually available to take calls compared with the amount of time they are scheduled to do so. Because it involves adhering to a schedule, this measurement is called the adherence percentage. Service representatives in Birmingham were initially required to meet an adherence percentage of 93, but that percentage was increased in early 1997 to 94.5.

Brungart did not meet the required adherence percentage for October through December, the three full months that she worked at BellSouth in 1996. Because BellSouth has a grace period for employees coming out of training, Brungart was not disciplined in 1996 for failing to meeting her adherence percentages. However, Brungart never met the required adherence percentage at any time before she was terminated in July of 1997. BellSouth's discipline process consists of progressive steps: counseling, warning, suspension, and finally termination of employment. Brungart received a warning and was suspended twice during 1997 because of her failure to meet adherence percentage requirements.

Some time in May or June of 1997, Brungart again applied for FMLA leave, this time so that she could have knee surgery. BellSouth's FMLA administrator approved three weeks of leave to begin July 10, 1997.

In early July, Calvin Nelson became the new top tier manager of the service representatives in Birmingham. He oversaw Vicky Capuzzo, who was Brungart's immediate supervisor. Also in early July, Capuzzo asked Brungart to resign, but Brungart refused. After the June adherence percentages were reported, Capuzzo told Nelson that Brungart had not met her required adherence objectives for June and also informed Nelson about Brungart's previous discipline (her warning and two suspensions during 1997) for failure to meet the adherence objectives.

Nelson made the decision to terminate Brungart. Nelson testified in his deposition that when he decided to terminate Brungart, he had no knowledge of her scheduled FMLA leave, and there is no evidence to contradict his testimony about that. Brungart was terminated on July 9, 1997, the day before she was to begin her requested leave for the knee surgery. She was told that she was being terminated for failure to meet BellSouth's adherence requirements.

Brungart sued BellSouth in a complaint which, after amendment, contained four counts. Count 1 claimed that BellSouth's termination of Brungart on July 9, 1997 had violated the FMLA, because it occurred as a result of her having requested leave to which she was entitled under the

Page 795

FMLA and which was scheduled to begin on July 10, 1997. Count 2 claimed that BellSouth had violated the FMLA by denying Brungart leave on an earlier occasion, leave she had requested in December of 1996. At that time, Brungart had not been employed the minimum number of hours necessary to make her eligible for FMLA leave, but she claimed to be entitled to it anyway, because BellSouth had failed to respond to her request for leave within two days. Count 3 claimed that BellSouth violated Brungart's rights under the FMLA by not giving her regular notice of her rights and responsibilities under the FMLA, and by not presenting her with written notice granting or denying her December 1996 leave request. Count 4 claimed that BellSouth had violated the Labor Management Relations Act in various ways.

Both parties filed motions for summary judgment. The district court granted BellSouth's motion for summary judgment on all counts. Brungart appeals only the district court's grant of summary judgment to BellSouth on the three FMLA counts.


We review the district court's grant of summary judgment de novo. See Allison, 184 F.3d at 1306. Summary judgment is appropriate only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). We begin with Count 2, because it concerns events that are first in time.


In Count 2 of her complaint, Brungart claimed that BellSouth violated the FMLA with respect to the FMLA leave request she submitted on December 2, 1996 for her mother's emergency heart surgery. Congress enacted the FMLA "to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity." 29 U.S.C. § 2601(b)(1). The FMLA entitles eligible employees to take up to 12 weeks of leave during any 12-month period for medical reasons, for the birth or adoption of a child, and for the care of a spouse, child, or parent who has a serious health condition. See 29 U.S.C. § 2601(b)(2); 29 U.S.C. § 2612(a)(1). Not all employees are eligible for leave under the FMLA. The statute defines those who are as follows:

The term "eligible employee" means an employee who has been employed -

(i) for at least 12 months by the employer with respect to whom leave is requested . . . ; and

(ii) for at least 1,250 hours of service with such employer during the previous 12-month period.

29 U.S.C. § 2611(2)(A). It is undisputed that at the time of her leave request in December of 1996 Brungart had not worked 1,250 hours for BellSouth during the previous 12-month period.

Brungart's theory behind Count 2 is that BellSouth's failure to inform her of her eligibility for FMLA leave within the time required by 29 C.F.R. § 825.110(d) made her eligible for the leave, or at least should have prevented BellSouth from denying that she was eligible, and as a result its denial of leave was wrongful. Brungart did not give notice of her need for leave more than two business days prior to the date she wanted to commence the leave, but instead applied for leave to begin effective immediately. In those circumstances, the relevant portion of § 825.110(d) is the following:

Where the employee does not give notice of the need for leave more than two business days prior to commencing leave, the employee will be deemed to be eligible if the employer fails to advise the employee that the employee is not

Page 796

eligible within two business days of receiving the employee's notice.


The validity of § 825.110(d) is squarely presented in this case. It is undisputed that in December 1996 when Brungart applied for medical leave to begin immediately she was statutorily ineligible for FMLA leave, because she had not worked for BellSouth...

To continue reading