Miedema v. Facility Concession Servs., Inc., 11-20580

Decision Date06 September 2012
Docket NumberNo. 11-20580,11-20580
PartiesKIMBERLY MIEDEMA, Plaintiff-Appellant v. FACILITY CONCESSION SERVICES, INCORPORATED, doing business as Spectrum Catering & Concessions, Defendant-Appellee
CourtU.S. Court of Appeals — Fifth Circuit

KIMBERLY MIEDEMA, Plaintiff-Appellant
doing business as Spectrum Catering & Concessions, Defendant-Appellee

No. 11-20580


September 6, 2012

Appeal from the United States District Court
for the Southern District of Texas

Before DAVIS, DENNIS, and HAYNES, Circuit Judges.


The defendant-appellee terminated its employment relationship with the plaintiff-appellant, Kimberly Miedema ("Miedema"), in late 2007. The district court granted summary judgment against Miedema, dismissing her claims under the Family and Medical Leave Act ("FMLA") and Title VII. Because Miedema failed to fulfill her obligations under the FMLA's certification provisions and

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because she failed to offer any evidence that her employer's proffered reason for her termination was a pretext for retaliation, we AFFIRM.


Kimberly Miedema was an employee of Facility Concession Services, Inc., d/b/a Spectrum Catering and Concessions ("Spectrum"). On September 28, 2007, during Miedema's employment with Spectrum, an incident occurred between Miedema and another employee. Although there is much debate about the nature of the interaction, Miedema has alleged that it was an unwelcome sexual advance. Following the incident, Miedema did not return to work because she was seeking treatment for post-traumatic stress disorder.

On October 15, 2007, Spectrum's president wrote a letter to Miedema inquiring into the reason for her absence. Spectrum's president requested a written statement concerning the September 28, 2007 incident, a doctor's authorization to return to work, and an FMLA certification documenting her medical condition.

On October 23, 2007, Spectrum received a letter from Miedema's physician, Dr. Jeffrey Sweeney, stating that he was treating her for post-traumatic stress disorder and that she would be unable to return to work yet. On October 25, 2007, Spectrum wrote to Miedema and her attorney to acknowledge receipt of Dr. Sweeney's letter. Spectrum's letter explained that it would consider Miedema's leave to be covered under the provisions of the FMLA, but that it was also including a Department of Labor-issued standard form "Certification of Health Care Provider" to be completed by her doctor and returned to Spectrum within fifteen days "in accordance with the applicable requirements of the FMLA."

Spectrum never received the requested certification form nor any other response. On November 15, 2007, Spectrum again contacted Miedema and her attorney. Spectrum's letter explained that the completed certification was

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required in order for Miedema's leave to be covered under the FMLA. Because Miedema never responded with a completed certification, her absence was unexcused, and Spectrum terminated her employment.

Miedema sued Spectrum alleging employer negligence, violations of the FMLA's substantive and retaliation provisions, and violations of Title VII's substantive and retaliation provisions. Spectrum filed a motion for summary judgment on all claims, which the district court granted on April 11, 2011. Miedema now appeals the district court's denial of her substantive FMLA claim and her FMLA and Title VII retaliation claims. Because she has not challenged the district court's denial of her Title VII hostile work environment and negligence claims, we need not address them.


We review an order granting a motion for summary judgment under a de novo standard. Storebrand Ins. Co. U.K., Ltd. v. Employers Ins. of Wausau, 139 F.3d 1052, 1055 (5th Cir. 1998); BellSouth Telecommunications, Inc. v. Johnson Bros. Group, 106 F.3d 119, 122 (5th Cir.1997). Summary judgment is warranted when the pleadings, depositions, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56; Celotex v. Catrett, 477 U.S. 317, 322 (1986).



In this appeal, Miedema first argues that her termination violates the provisions of the FMLA. The FMLA guarantees to eligible employees twelve workweeks of leave during any twelve-month period in certain enumerated circumstances. 29 U.S.C. § 2612(a) (2006). One such circumstance is "a serious health condition that makes the employee unable to perform the functions of [her] position." Id. In the instant case, it is not disputed that Miedema's post-traumatic stress disorder is a covered "serious health condition." However, what

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is disputed is whether Miedema's notice to Spectrum complied with the FMLA's certification requirements.

Under the FMLA, an employer may request both an initial certification and later, a recertification. See 29 C.F.R. §§ 825.306, 825.308 (2011). As the district court noted, "It is not clear whether Spectrum considered its second request for a medical certification to be another attempt to obtain an initial medical certification or a request for recertification." Memorandum and Order Granting Summary Judgment (S.D. Tex. Apr. 11, 2011). The distinction is important because the two request procedures are subject to two different sets of requirements. Compare 29 C.F.R. § 825.306, with 29 C.F.R. § 825.308. The district court concluded that it need not determine which type of certification Spectrum requested, because Spectrum's request complied with the requirements for both. Because we find Spectrum's request to be one for a certification, an analysis of the recertification issue is unnecessary.

The conclusion that Spectrum's request is for an initial certification follows naturally from the purposes of the two procedures. Under 29 C.F.R. §§ 825.306—.307, the very nature...

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