Bosley v. Cargill Meat Solutions Corp.

• Decision Date: 05 February 2013
• Docket Number: No. 12–1290.,12–1290.
• Citation: 705 F.3d 777
• Parties: Tanya BOSLEY, Plaintiff–Appellant v. CARGILL MEAT SOLUTIONS CORPORATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

705 F.3d 777

Tanya BOSLEY, Plaintiff–Appellant

v.CARGILL MEAT SOLUTIONS CORPORATION, Defendant–Appellee.

No. 12–1290.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 20, 2012.

Filed: Feb. 5, 2013.

Jill M. Zwagerman, argued, Des Moines, IA, for Appellant.

Nathan John Overberg, argued, Amanda G. Wachuta, on the brief, Des Moines, IA, for Appellee.

Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.

SMITH, Circuit Judge.

Tanya Bosley, an employee of Cargill Meat Solutions Corporation (“Cargill”), missed work because of depression and other health issues. Bosley missed the entire month of February 2008. Bosley failed to use Cargill's call-in procedure for absences. Bosley also did not notify Cargill that she would qualify for leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Cargill terminated Bosley's employment, and Bosley sued Cargill, asserting FMLA entitlement and retaliation claims. The district court ¹ granted Cargill's motion for summary judgment on both claims. Bosley appealed, and we affirm.

I. Background

Tanya Bosley was hired by Cargill in September 2003. Bosley regularly carpooled to work with her coworker, Christine Pilcher. Bosley sometimes missed work due to illness, and she occasionally took leaves of absence under the FMLA. William Crowell was Bosley's supervisor. Sometimes when Bosley was absent from work due to illness, Pilcher would notify Crowell of the absence on Bosley's behalf. On February 1, 2008, Pilcher arrived to pick up Bosley. Bosley told Pilcher that she could not get up due to depression. Bosley missed work that day, and Pilcher informed Crowell that Bosley was absent because she was “sick.”

Cargill's attendance policy included a call-in procedure for employees to inform Cargill of any necessary and unavoidable absences through an automated phone system. Under Cargill's policy, failure to comply with the call-in procedure on three consecutive work days would result in a voluntary termination of employment. Bosley was familiar with this policy. She had the call-in number programmed into her phone, and she successfully utilized the procedure on over 100 occasions. Nevertheless, on February 1, Bosley did not call Cargill. In fact, Bosley missed work the entire month of February 2008, and she never used the call-in procedure.

The record shows that between February 1 and February 21, Bosley was conscious, able to get out of bed, able to visit two healthcare providers, and able to communicate coherently. She admitted in deposition testimony that her depression improved and “became not incapacitating around February 15.” Or, according to her FMLA paperwork, her condition was no longer incapacitating by February 25.

On February 16, during Bosley's absence, David Clark replaced Crowell as Bosley's supervisor. Clark was unaware of Bosley's mental health condition, and he did not know why Bosley was absent. In late February, Clark inquired about Bosley to Cargill's nurses' office; Whitney Crisswell, Cargill's FMLA coordinator; and Laura Elliott, Cargill's human resources manger. No one had any information regarding her absence. On February 27, Cargill terminated Bosley's employment on the basis that she had three consecutive call-in violations between February 1 and 27. On March 3, Bosley went to Cargill to pick up forms for approval of FMLA leave for her missed work during the month of February. That day, Bosley learned of her termination from Elliott.

Bosley filed suit in the district court, asserting entitlement and retaliation claims under the FMLA. Cargill moved for summary judgment. The district court granted summary judgment to Cargill on both claims, finding that Bosley did not meet her obligation to provide notice to Cargill of her need for protected leave under the FMLA. Bosley appeals, asking this court to reverse the district court's grant of summary judgment and to remand.

II. Discussion

Bosley argues that the district court erred in finding that she failed to satisfy her notice obligation under the FMLA. We “review[ ] a grant of summary judgment de novo.” Rynders v. Williams, 650 F.3d 1188, 1194 (8th Cir.2011). “Summary judgment is proper if, after viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmovant, no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law.” Id. (quotation and citation omitted). The jury is responsible for weighing the evidence and making credibility determinations, not the court. Id. “ ‘[T]he court should deny summary judgment if there is sufficient evidence for a jury to return a verdict for the nonmoving party.’ ” Id. (quoting Young–Losee v. Graphic Packaging Int'l, Inc., 631 F.3d 909, 911 (8th Cir.2011)).

One of the purposes of the FMLA is “to entitle employees to take reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(2). The FMLA entitles an employee to 12 workweeks of leave during any 12–month period if he or she has 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 any “illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11).

Bosley styles her claims against Cargill as “interference” and “retaliation” claims. In Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996 (8th Cir.2012), we recognized that, although our cases sometimes describe claims brought under 29 U.S.C. § 2615(a)(1) as “interference” claims, “that terminology may not illuminate, because all prohibited acts under § 2615(a) appear under the heading ‘ Interference with rights.’ ” Id. at 1005 (recognizing FMLA entitlement, retaliation and discrimination as three separate claims under the FMLA). For the sake of clarity, what we formerly described as “interference” claims henceforth shall be called “entitlement” claims. Id. Thus, Bosley asserts FMLA entitlement and retaliation claims. In “an entitlement claim[,] an employee claims the denial of a benefit to which he is entitled under the statute.” Id. In a retaliation claim, on the other hand, an employee claims that “the employer ... t[ook] adverse action against the employee” for “oppos[ing] any practice made unlawful under the FMLA.” Id. at 1006.

A. Bosley's FMLA Entitlement Claim

“To state [an entitlement claim] under the FMLA, [Bosley] must have given notice to [Cargill] of her need for FMLA leave.” Clinkscale v. St. Therese of New Hope, 701 F.3d 825, 827 (8th Cir.2012).

The Department of Labor has issued regulations, pursuant to the authority granted by § 2654 of the FMLA, governing the respective notice obligations of employers and employees. 29 C.F.R. § 825.303 (2008). At the relevant times, those regulations provided,² in pertinent part:

(a) When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer 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 or to care for a family member with a serious health condition, written advance notice pursuant to an employer's internal rules and procedures may not be required when FMLA leave is involved.

(b) The employee should provide notice to the employer either in person or by telephone, telegraph, facsimile (“fax”) machine or other electronic means. Notice may be given by the employee's spokesperson (e.g., spouse, adult family member or other responsible party) if the employee is unable to do so personally. The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means. The employee or spokesperson will be expected to provide more information when it can readily be accomplished as a practical matter, taking into consideration the exigencies of the situation.

Id.

In Scobey v. Nucor Steel–Arkansas, 580 F.3d 781 (8th Cir.2009), we reiterated our rigorous notice standard for employees seeking to use FMLA leave for absences. Employees have an affirmative duty to indicate both the need and the reason for the leave, and must let employers know when they anticipate returning to their position.

Brown v. Kansas City Freightliner Sales, Inc., 617 F.3d 995, 997 (8th Cir.2010) (quotations, alteration, and citations omitted). “Before an employee can claim FMLA protection, ... the employee must put the statute in play—she must notify her employer that she may need FMLA leave.” Murphy v. FedEx Nat'l LTL, Inc., 618 F.3d 893, 900 (8th Cir.2010) (citing Scobey, 580 F.3d at 787). “A claim under the FMLA cannot succeed unless the plaintiff can show that he gave his employer adequate and timely notice of his need for leave....” Woods v. DaimlerChrysler Corp., 409 F.3d 984, 991 (8th Cir.2005).

1. Pilcher as Spokesperson

The regulatory language in place in February 2008 provided that “[n]otice may be given by the employee's spokesperson (e.g., spouse, adult family member or other responsible party) if the employee is unable to do so personally.” 29 C.F.R. § 825.303 (2008). Bosley argues that Pilcher gave notice to Cargill of Bosley's absence from work due to depression and, hence, of her need for FMLA leave. Bosley points to Pilcher's deposition testimony regarding the conversation that Pilcher had with Crowell on February 1. Pilcher testified as follows:

Q...