Cruz v. Publix Super Markets, Inc., No. 05-10245.

Decision Date31 October 2005
Docket NumberNo. 05-10245.
Citation428 F.3d 1379
PartiesJune CRUZ, Plaintiff-Appellant, v. PUBLIX SUPER MARKETS, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Angela E. Outten, Christopher David Gray, Florin, Roebig, P.A., Palm Harbor, FL, for Cruz.

Edmund J. McKenna, Jennifer Monrose Moore, Ford & Harrison, LLP, Tampa, FL, William S. Reese, Coral Gables, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BLACK, WILSON and COX, Circuit Judges.

WILSON, Circuit Judge:

This appeal concerns the notice requirement under the Family and Medical Leave Act ("FMLA"). June Cruz appeals from the district court's order granting Publix Super Markets, Inc. ("Publix") summary judgment on Cruz's FMLA interference and retaliation claims. The district court granted summary judgment because Cruz failed to provide sufficient notice to Publix that she was requesting leave for a potentially FMLA-qualifying reason. We affirm.


Cruz was a long-term employee who worked in Publix's bakery department as a cake decorator. She worked for Publix from October of 1992 until her termination in November of 2003. In May of 2003, Cruz learned that her adult daughter was pregnant and was due to give birth to Cruz's second grandchild on November 1, 2003. After learning of her daughter's pregnancy, Cruz requested two weeks of unpaid leave from October 31, 2003, to November 16, 2003, to travel to Colorado for the birth of her grandchild, by filling out the appropriate "Time Away from Work" form. Despite the fact that Cruz had already used all of her vacation time for the year, Publix Store Manager Gary Southall approved Cruz's request for two weeks unpaid leave. Significantly, the leave was predicated on Publix's policy regarding unpaid leave, not the FMLA.

After Publix approved her leave, Cruz reminded Assistant Bakery Manager Lance Davis that because she was taking leave due to her daughter's pregnancy, she might have to leave for Colorado earlier than planned, if her daughter went into labor earlier than expected. Davis responded, "Okay." At this time, Cruz, however, did not tell Davis that she might have to stay in Colorado longer than expected, nor did she request additional time off.

On or about October 15, 2003, Cruz learned that her daughter believed that she might deliver the baby early. That day, Cruz changed her flight to Colorado to leave two days later, on October 17th which was two weeks before her leave was scheduled to begin.

The next day, on October 16, 2003, Cruz informed Davis that she thought her daughter was in labor and therefore she planned to leave the following day for Colorado. Cruz told Davis that she planned to return to work on November 17th, as previously scheduled, and Davis responded, "Okay." Davis immediately relayed the news of Cruz's change of plans to Southall and to Bakery Department Manager Justin Pierro, who called Cruz into the front office for a meeting.

Southall asked Cruz to explain her situation, and Cruz told them that she believed her daughter was in labor, that her daughter's husband broke his collarbone, and that her daughter needed her help. At no time did Cruz tell them that her daughter was having complications due to her pregnancy. Cruz also told Southall and Pierro that she had already changed her plane ticket to leave for Colorado the following day. Southall and Pierro agreed to allow Cruz's previously-approved two weeks of unpaid leave to begin immediately, but refused to grant her more than two weeks of leave. It was at this point that Cruz asked, for the first time, whether she was eligible for "family leave." Believing that Cruz did not qualify for FMLA leave under the circumstances, Southall told her "no."

At the completion of the meeting, Cruz understood that she was approved for two — not four — weeks of unpaid leave. She admitted that she had a good suspicion that if she took four weeks of leave, she might be fired. During the meeting, Cruz even inquired as to how to reapply for a position with Publix when she returned.

Later that day, after meeting with the managers, Cruz inquired at the Publix personnel office to determine how an employee applies for leave under the FMLA. Cruz was told that she needed to provide a letter from her daughter's physician to the store coordinator, who would fill out the appropriate forms so that the FMLA leave could be approved. Cruz arranged for her daughter's physician to fax a letter to the store coordinator, which stated that her son-in-law had a broken collarbone and "is now unable to help with labor coaching." In addition, the letter stated that Cruz's daughter "feels she needs her mother to come help with labor etc., as she has no one else to help. We hope you agree with us that her Mother's presence would help their difficult situation at this time." Absent from the note was any indication that Cruz's daughter was having complications due to her pregnancy.1 Cruz provided the letter to the store coordinator and left for Colorado the next day.

When Southall received Cruz's FMLA leave application, including the letter from Cruz's daughter's physician, he again denied her request using the appropriate form because he did not believe she qualified for FMLA leave. Publix then scheduled Cruz to work her regular schedule during the work week beginning November 1st, which was the week following her two weeks of approved leave.

However, Cruz did not return to work after her two weeks of leave were over. In fact, Publix did not hear from Cruz until four weeks later, on November 13th, when she called from Colorado to ask about her schedule. At this time, Publix informed Cruz that she had been terminated for job abandonment when she failed to return to work after her two weeks of approved leave was over. Cruz's termination was effective on November 7, 2003, after Cruz failed to work the entire work week of November 1, 2003.

Cruz subsequently filed her complaint, alleging that Publix improperly denied her FMLA leave to care for her pregnant daughter who had a serious medical condition and was terminated in retaliation for exercising her rights under the FMLA. The district court determined that a genuine issue of material fact remained as to whether Cruz's daughter was "incapable of self-care because of a mental or physical disability," which would qualify Cruz for leave under the FMLA. See 29 U.S.C. § 2611(12)(B). Nevertheless, the district court granted summary judgment in favor of Publix on Cruz's FMLA claims because Cruz failed to give Publix sufficient notice that her leave was due to a potentially FMLA-qualifying reason.


We review the district court's grant of summary judgment de novo, applying the same legal standards that bound the district court, and "viewing all facts and reasonable inferences in the light most favorable to the nonmoving party." Strickland v. Water Works and Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1203 (11th Cir.2001). 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." Fed.R.Civ.P. 56(c).


The FMLA entitles an eligible employee to twelve work weeks of unpaid leave during any twelve-month period if she needs the leave in order "to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. § 2612(a)(1)(C). "The term `son or daughter' means a biological, adopted, or foster child, a step child, legal ward, or a child of a person standing in loco parentis, who is . . . under 18 years of age; or . . . 18 years of age or older and incapable of self-care because of a mental or physical disability." 29 U.S.C. § 2611(12).

The FMLA requires employees to provide 30 days advance notice of the leave, when the need to take leave is foreseeable. 29 U.S.C. § 2612(e)(2)(B); 29 C.F.R. § 825.302(a). If, though the leave is foreseeable, "30 days notice is not practicable, such as because of a lack of knowledge of approximately when the leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable." 29 C.F.R. § 825.302(a). Similarly, if the need for leave is not foreseeable, notice must be given "as soon as practicable under the facts and circumstances of the particular case." Id. § 825.303(a). In interpreting the notice requirements of the FMLA, we held that "where an employee's need for FMLA leave is unforeseeable, the employee need only provide her employer with notice sufficient to make the employer aware that her absence is due to a potentially FMLA-qualifying reason." Gay v. Gilman Paper Co., 125 F.3d 1432, 1436 (11th Cir.1997) (emphasis added).

An employee is not required to assert expressly her right to take leave under the FMLA. 29 C.F.R. §§ 825.302(c), 825.303(b). However, the notice must be "sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave." Id. § 825.302(c). Once an employee gives sufficient notice to her employer that potentially FMLA-qualifying leave is needed, the employer must then ascertain whether the employee's absence actually qualifies for FMLA protection. Strickland, 239 F.3d at 1209 (citing 29 C.F.R. § 825.303(b)).

Furthermore, we note that being pregnant, as opposed to being incapacitated because of pregnancy, is not a "serious health condition" within the meaning of the FMLA. See 29 C.F.R. § 825.114(a)(2)(ii) (defining "serious health condition" as an illness, injury, impairment, or physical or mental condition that involves incapacity due to pregnancy); Aubuchon v. Knauf Fiberglass, GmbH, 359 F.3d 950, 952 (7th Cir.2004) (distinguishing being pregnant from being incapacitated because of pregnancy, the former...

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