Gay v. Gilman Paper Co., 96-9490

• Decision Date: 29 October 1997
• Docket Number: No. 96-9490,96-9490
• Parties: 4 Wage & Hour Cas.2d (BNA) 289, 11 NDLR P 108, 11 Fla. L. Weekly Fed. C 663 Queen Ester GAY, Plaintiff-Appellant, v. GILMAN PAPER COMPANY, d.b.a. Gilman Converted Products, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1432

125 F.3d 1432

4 Wage & Hour Cas.2d (BNA) 289, 11 NDLR P 108,

11 Fla. L. Weekly Fed. C 663

Queen Ester GAY, Plaintiff-Appellant, v. GILMAN PAPER COMPANY, d.b.a. Gilman Converted Products,

Defendant-Appellee.

No. 96-9490.

United States Court of Appeals, Eleventh Circuit.

Oct. 29, 1997.

Lonzy F. Edwards, Edwards & Youmas, Macon, GA, for Plaintiff-Appellant.

Patrick D. Coleman, Jennifer S. Yates, Coffman, Coleman, Andrews & Grogan, Jacksonville, FL, for Defendant-Appellee.

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

Before COX and BARKETT, Circuit Judges, and HUNT ^*, District Judge.

BARKETT, Circuit Judge:

Queen Ester Gay appeals from the district court's order granting defendant Gilman Paper Company's ("Gilman") motion for summary judgment as to her claims under the Family and Medical Leave Act ("FMLA").

The district court based its grant of summary judgment on Gay's failure to offer any evidence from which a jury could conclude either that she gave Gilman sufficient notice of her need for leave under the FMLA or that Gilman's asserted reason for terminating her was a pretext for discrimination. We affirm the grant of summary judgment.

BACKGROUND

Appellant, Queen Ester Gay, was employed by the Gilman Paper Company from 1988 until her termination on June 28, 1994. ¹ Between January 1992 and February 1994, Gay was disciplined on five separate occasions for tardiness and/or absenteeism. Gay last worked at Gilman on June 18, 1994 and was scheduled to return to work four days later on June 22. On June 20, however, Gay was admitted to the Houston County Medical Center, a psychiatric hospital, to receive treatment for a nervous breakdown. On June 22, Gay's husband called Gay's supervisor, Polly McKendree, informing McKendree that Gay was in the hospital. Mr. Gay did not inform McKendree that his wife had suffered a nervous breakdown, but instead told her that Gay was having some tests run. During his deposition, Mr. Gay subsequently admitted that he had lied to McKendree about Gay's whereabouts and condition. He also admitted that he had instructed his sons not to give Gilman any information regarding Gay's condition or location. Specifically, Mr. Gay testified:

Q. What do you recall telling her [McKendree]?

A. I told her Queen was in the hospital.

Q. Did she ask you where?

A. Yes.

Q. What did you tell her?

A. I probably told her Atlanta, I think, or somewhere. I didn't tell her where she was at.

Q. Did you lie to her?

A. Yes.

Q. Why did you lie to her?

A. 'Cause I just didn't want them [Gilman] to know--I didn't want them to know her condition.

Q. So you lied to them both about the location and the condition, didn't you?

A. Yes.

Q. Did she ask when your wife would be back?

A. She asked what--she asked me what was wrong, but I didn't answer the question. I think she asked--hope she--told me she hoped she'd be okay but I wouldn't give her any information or anything 'cause I ain't willing--I didn't think they needed to know.

Q. Did you tell her she was having some tests run?

A. I probably did.

Q. Do you know whether or not Polly called your home and talked to one of your boys?

A. I don't know.

Q. You don't know whether she talked to Darren?

A. No, I don't know. She may have. She may have. The kids may have told me someone called. I don't know.

Q. Did you tell the boys if Gilman called not to tell them where--

A. Yeah.

Q. --she was?

A. Right.

Q. You told them that?

A. Uh-huh. (Affirmative)

Q. Told them if the company called, lie to them about where she was?

A. Just don't give them any information.

Q. And Dan never told you he talked to Polly McKendree?

A. I can't remember. He might have told me that she called and I asked him did you tell them anything and he said no 'cause I told them not to tell them anything, where she at or what. Just tell them she's in the hospital and that's it.

Gay made no further effort to communicate with Gilman regarding her condition or Gay subsequently filed suit in the United States District Court for the Southern District of Georgia, alleging that she had been improperly denied leave for a serious health condition under the FMLA and wrongfully terminated for exercising her rights under the FMLA. ²

absence from work during the following week. On June 28, Gay was terminated by letter for "extended failure to report off, or explain absences."

DISCUSSION

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 any reasonable inferences therefrom in the light most favorable to the non-moving party. Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir.1995); McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1557 (11th Cir.1992). Summary judgment is appropriate only when "there is no genuine issue of material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

The FMLA provides eligible employees with "a total of 12 workweeks of leave during any 12-month period ... [b]ecause of a serious health condition ³ that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). Where such leave is foreseeable based on planned medical treatment, the Act requires the employee to "provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave under such subparagraph." 29 U.S.C. § 2612(e)(2)(B). Although the Act itself is silent regarding the notice required in the case of unforeseeable leave, interim regulations ⁴ promulgated by the Department of Labor provide that

[w]hen the need for leave, or its approximate timing, 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 cases.

29 C.F.R. § 825.303(a) (1993). The interim regulations further provide that the required notice may be given by telephone and that

[n]otice may be given by the employee's representative (e.g., a spouse ... ) if the employee is unable to do so personally. The employer will be expected to obtain any additional required information through informal means. The employee or representative 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.

29 C.F.R. § 825.303(b) (1993). Additional FMLA implementing regulations provide that "[i]n all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, based on information provided by the employee." 29 C.F.R. § 825.208(a)(2) (1993).

Gay argues that her husband's assertion that she was in the hospital for tests was sufficient to put Gilman on notice that her condition was potentially FMLA-qualifying, thus shifting the burden to Gilman to make further inquiry as to whether her absence in fact qualified for treatment under the FMLA. She also suggests that it was then Gilman's responsibility to avail itself of the means by which employers may obtain information verifying an employee's need for FMLA leave, such as asking Gay to furnish a detailed medical certification from her health care provider. See 29 U.S.C. § 2613; 29 C.F.R. §§ 825.305, 825.306 (1993). Finally, Gay argues that nothing in the FMLA or its corresponding regulations requires that an employer be given specific information about an eligible employee's "true condition or location."

In support, Gay relies primarily on two cases, which we find inapposite to Gay's situation and which, indeed, support the opposite result. First, Gay directs us to Brannon v. OshKosh B'Gosh, Inc., 897 F.Supp. 1028 (M.D.Tenn.1995). In that case, the plaintiff had stayed home from work for two days to care for her three-year-old daughter, who was suffering from a serious health condition within the meaning of the FMLA. ⁵ See id. at 1032-33. On both of the days of her absence, the plaintiff had called her employer and notified the Human Resources Manager that she would be absent from work because of her daughter's illness. See id. at 1033. In addition, the plaintiff's husband had delivered to her supervisor a note from their daughter's physician explaining the plaintiff's absence. See id. Observing that the FMLA implementing regulations "make clear that an employee must tell her employer the reason she is absent from work before she will be entitled to FMLA protection," id. at 1038, the court found that, under the circumstances of that case, "[t]he plaintiff gave sufficient notice that her absence was necessitated by an FMLA-qualifying reason," id. at 1039. The court further held that once such notice was given, "it was the employer's duty to make further inquiry to determine if the leave qualified for FMLA protection." Id. at 1038.

In Manuel v. Westlake Polymers Corp., 66 F.3d 758 (5th Cir.1995), the appellant, who had been disciplined repeatedly by her employer for poor attendance, was absent from work for over a month due to complications that developed following what was anticipated to be minor surgery on her toe, see id. at 760. The appellant had received permission to be absent from work on the day of the surgery and, when complications subsequently developed, she immediately notified her supervisor that she could not return to work due to these complications. She kept in constant contact with her employer throughout her absence, though she neither referred to nor attempted to refer to the FMLA when requesting leave. See id. Reversing the district court's grant of summary judgment in favor of the employer, the Fifth Circuit held that an eligible employee...