Strickland v. Water Works & Sewer Board of Birmingham, No. 99-14103

Decision Date22 January 2001
Docket NumberNo. 99-14103,Docket No.98-00374-CV-B-S
Citation239 F.3d 1199
Parties(11th Cir. 2001) RUSSELL STRICKLAND, Plaintiff-Appellant, v. WATER WORKS AND SEWER BOARD OF THE CITY OF BIRMINGHAM, Defendant- Appellee. D.C
CourtU.S. Court of Appeals — Eleventh Circuit

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Alabama

Before TJOFLAT, WILSON and FLETCHER*, Circuit Judges.

TJOFLAT, Circuit Judge:

This is a Family and Medical Leave Act ("FMLA") case, 29 U.S.C. 2601-2654 (1994).1 The plaintiff claims that his employer terminated his employment after he left the job site because he was suffering a diabetic attack and could not perform the tasks assigned him, that such condition qualified him for FMLA leave, and that he is entitled to reinstatement and damages. On summary judgment, the district court held that the FMLA provided the plaintiff no relief because, at the time of his discharge, he had not exhausted the paid sick leave provided by his employer, and the Act provides no relief to an employee under such circumstances. Alternatively, the court, treating the plaintiff's complaint as alleging an FMLA "retaliation claim," as opposed to an "interference claim," found no merit in the plaintiff's allegations.

We conclude that the court erred in its first holding because whether an employee is entitled to receive paid sick leave is irrelevant to his right to FMLA protection. We also conclude that the court erred in reading the plaintiff's complaint as alleging only a retaliation claim. The plaintiff has made out an interference claim, and it survives summary judgment because a "swearing match" between the plaintiff and his immediate supervisor concerning why the plaintiff left the job site creates a material issue of fact. We therefore vacate the district court's judgment and remand the case for further proceedings.


Russell Strickland, who suffers from diabetes mellitus, had been an employee of the Water Works and Sewer Board of the City of Birmingham, Alabama ("Water Works Board" or "Board"), for eighteen years and held the position of Service Department Supervisor when the events leading to this law suit arose in March 1997. On Wednesday morning, March 5, Randolph Harmon, manager of the Service Department and Strickland's immediate supervisor, had a telephone conversation with Strickland concerning Strickland's failure to resolve a customer's complaint about the amount of a water bill that Harmon had asked him to settle by March 3. According to a note Harmon wrote following the phone conversation, Strickland responded that he had been "to [sic] busy, was not feeling well, [and] could not perform [the] inspection" necessary to resolve the complaint. Shortly after the phone call, Harmon met with Strickland to discuss the matter further. The parties dispute what was said at the meeting. Strickland claims that he reiterated what he had said during the telephone conversation - that he had not resolved the customer's complaint because his diabetes had been interfering with his vision, which, in turn, prevented him from inspecting the customer's premises. Harmon, according to his affidavit and a memorandum he wrote after the meeting, says that Strickland became agitated when pressed on why he had not resolved the complaint, walked out of the meeting, and left the workplace without obtaining permission to leave. Strickland disputes this, saying that when the meeting ended he told Harmon - and, thereafter, a departmental employee responsible for recording work absences - that he had to take the rest of the day off because his diabetes was acting up.

Later in the day (after Strickland left), Harmon forwarded his memorandum recounting the meeting with Strickland to the Water Works Board's senior management. In the memorandum, Harmon recommended that the Water Works Board fire Strickland for "insubordination" and "failure to follow work orders and instructions."

The next morning, March 6, Harmon called Strickland at home. Harmon's version of the phone conversation is that he asked Strickland to come to the office "so that [they] could discuss the matter." Strickland's version is that Harmon wanted him to bring "a letter from [his] doctor" verifying his illness. Strickland obtained the letter and gave it to Harmon when they met later that day; the letter confirmed that Strickland had diabetes.

Strickland did not work on March 6 or March 7; he had previously been granted permission to take those days off as "vacation." On March 7, Strickland received a letter from Gene Hanson, Interim General Manager of the Water Works Board, informing him that the Board was considering disciplinary action against him and offering him the opportunity to be heard in writing, or by appearing before Hanson on Tuesday, March 11. The letter identified as grounds for disciplinary action Strickland's failure to follow Harmon's instructions to resolve the customer complaint and his "walking off the job" on March 5 without permission.

When Strickland arrived at work on Monday, March 10, his next scheduled work day, Harmon informed him that he had been suspended. The following day, Strickland appeared in person at his disciplinary hearing before Hanson and a committee composed of the Water Works Board's senior management. Harmon was also present at the hearing, and both he and Strickland presented their versions of the events of March 5. In a letter dated March 14, the Board informed Strickland that he had been terminated, retroactive to March 5, for his conduct on that date, including his "insubordination and `walking off the job.'" Strickland then filed this law suit.

The complaint alleged that, on March 5, Strickland had been unable to work due to a diabetic attack and that he informed Harmon,2 as well as the Service Department employee responsible for recording work absences, about his condition. The complaint further alleged that on March 6, Strickland gave Harmon a letter from his doctor which confirmed that he was suffering from diabetes and that, after receiving the letter, Harmon told him that "[he] was terminated for `walking off the job.'" Alleging that Strickland had been "terminated in violation of the FMLA," the complaint sought Strickland's reinstatement and damages.

The Water Works Board's answer denied Strickland's allegations regarding the events of March 5, and stated that Strickland "never informed the Water Works' management of his alleged diabetes or that it interfered with his ability to perform his job," that he "failed to request leave under the FMLA in accordance with the Water Works' Policy . . . and never filled out the form to request leave," and that the Board discharged Strickland because he "refused to follow [Harmon's] orders and instructions . . . and walked off the job without authorization from or notification to management after being insubordinate to [Harmon]."

On cross motions for summary judgment, the district court granted the Water Works Board's motion as to Strickland's FMLA claim on alternative grounds. First, the court held that since Strickland had not exhausted his paid leave time available under the Board's sick leave policy, he could not invoke the protections of the FMLA. Second, the court held that even if Strickland could demonstrate that his absence on March 5 was protected by the FMLA, he did not present sufficient evidence for a reasonable jury to find that his discharge was retaliatory; that is, that the Board fired him because he invoked the Act's protection. See Strickland v. Water Works and Sewer Bd., No. CV 98-B-0374-S (N.D. Ala. Sept. 15, 1999).


Summary judgment is proper only 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). We review a district court's grant of summary judgment de novo, applying the same legal standards as the district court and viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000). After reviewing the record and the district court's analysis of Strickland's FMLA claim, we conclude that the court misinterpreted the Act and, further, failed to recognize the existence of a material issue of fact that precluded summary judgment.


As its first ground for granting summary judgment, the district court held that Strickland's absence on March 5 could not qualify for FMLA protection because paid leave was still available to him under the Water Works Board's sick leave policy.3 In the court's view, an employee who has not exhausted his paid sick leave - or, for that matter, any paid leave to which he may be entitled - cannot avail himself of the substantive protection of the FMLA implicated in this case. While some of the Act's text, considered in isolation, might suggest that an eligible employee whose leave qualifies as paid sick leave under his employer's sick leave policy cannot receive the benefits of the Act, such a reading is inconsistent with the purpose of the FMLA.


The FMLA provides that "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following: . . . (D) Because of 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) (1994).4 The FMLA explicitly permits employers to provide covered leave on an unpaid basis. 29 U.S.C. 2612(c). If an employer provides paid leave benefits to its employees, the Act provides that "[a]n eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or medical or sick leave of the employee for . . . any part of the 12-week period" of FMLA leave. 29 U.S.C. 2612 (d)(2)(B).


The district court...

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