Brenda Joyce Lowery v. Ronald Strength ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11597 Dec. 14, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00090-CV-1
BRENDA JOYCE LOWERY,
Plaintiff-Appellant,
versus
RONALD STRENGTH,
Sheriff,
GENE JOHNSON,
Captain,
KEN RODGERS,
Investigator,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(December 14, 2009)
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Brenda Lowery, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of Ronald Strength, the Sheriff of Richmond County.
After Lowery, a deputy jailor, was involved in a physical altercation at a local
restaurant, Strength terminated her employment. After several amendments to her
complaint, Lowery proceeded against Strength alleging that he 1) interfered with
her FMLA rights, and 2) wrongfully terminated her in violation of her due process
rights.
We review a district court order granting summary judgment de novo,
viewing all of the facts in the record in the light most favorable to the non-moving
party. Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1161-
62 (11th Cir. 2006). “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.’” Wilson v. B/E/ Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir.
2004) (quoting Fed.R.Civ.P. 56(c)). “A genuine factual dispute exists if the jury
could return a verdict for the non-moving party.” Id. (quotations and citation
omitted).
I. FMLA Interference
The FMLA provides that “an eligible employee shall be entitled to a total of
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12 workweeks of leave during any 12-month period . . . [b]ecause 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)(D). A serious health condition
is an illness, injury, impairment, or physical or mental condition that involves: (1)
inpatient care; or (2) continuing treatment by a health care provider. Id.
§ 2611(11).
An employee shall provide at least verbal notice sufficient to make the
employer aware that the employee needs FMLA-qualifying leave. 29 C.F.R
§§ 825.302(c), 825.303(b). Absent unusual circumstances, however, an employer
may require an employee to comply with the employer’s usual and customary
notice and procedural requirements for requesting leave. Id. at §§ 825.302(d),
825.303(c).
Generally, employees are required to provide employers with at least 30
days’ notice before taking FMLA leave. 29 U.S.C. § 2612(e)(2)(B). When
advance notice is not practicable because the need for leave is unforeseeable, the
employee should give the employer notice as soon as practicable. Cruz v. Publix
Super Markets, Inc., 428 F.3d 1379, 1382 (11th Cir. 2005) (citing 29 C.F.R.
§ 825.303(a)). Notice may be given by the employee’s spokesperson, such as the
employee’s spouse, if the employee is unable to do so. Id, § 825.303(a). When
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“an employee’s need for FMLA leave is unforeseeable, the employee need only
provide [his] employer with notice sufficient to make the employer aware that [his]
absence is due to a potentially FMLA-qualifying reason.” Cruz, 428 F.3d at 1382
(quotation omitted). On the other hand, not all leave requested or taken for
medical reasons qualifies for FMLA protection. Cash v. Smith, 231 F.3d 1301,
1307 (11th Cir. 2000).
“Unless the employer already knows that the employee has an
FMLA-approved reason for leave, the employee must communicate the reason for
the leave to the employer; the employee cannot just demand leave.” Cruz, id.
Thus, to give sufficient notice, the employee must inform the employer of a
potentially FMLA-qualifying reason. Id. at 1386. When an employee provides the
employer with sufficient notice “that potentially FMLA-qualifying leave is needed,
the employer must then ascertain whether the employee’s absence actually
qualifies for FMLA protection.” Id. at 1383.
Additionally, the FMLA provides: “It shall be unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt to exercise, any right
provided under [the FMLA].” 29 U.S.C. 2615(a)(1). “To state a claim of
interference with a [FMLA] substantive right, an employee need only demonstrate
by a preponderance of the evidence that he was entitled to the benefit denied.”
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Strickland v. Waterworks and Sewer Bd. of the City of Birmingham, 239 F.3d 1199,
1206-07 (11th Cir. 2001). Alternatively, an employee may demonstrate that the
employer interfered with the FMLA benefit. O'Connor v. PCA Family Health
Plan, Inc., 200 F.3d 1349, 1353-54 (11th Cir. 2000). “‘Interfering with’ the
exercise of an employee's rights would include, for example, not only refusing to
authorize FMLA leave, but discouraging an employee from using such leave.” 29
C.F.R. 825.220(b).
Here, Lowery presented no evidence that Strength knew she was seeking
FMLA leave, much less that he somehow sought to discourage her from using
FMLA leave or to punish her for having done so. The evidence shows that, after a
warrant was issued for Lowery’s arrest, she was asked to attend a disciplinary
hearing. At the Review Hearing, Lowery’s alleged FMLA leave was not
discussed. In addition, Lowery does not allege that she experienced problems in
taking leave after she had a nervous breakdown.
Moreover, Lowery has not shown, even if she had been on FMLA leave, that
calling upon her to attend a disciplinary hearing was an act of interference with her
FMLA rights. The evidence shows that Strength, during his tenure as RCSD
Sheriff, fired 23 of 25 RCSD employees that committed criminal acts. Lowery has
presented no evidence that Strength terminated her to deny her FMLA benefits.
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Additionally, the evidence shows that Lowery never applied for FMLA
leave. According to Lowery, she submitted several documents to inform the
RCSD that she was requesting FMLA leave. However, even if one could assume
that the RCSD received each of these documents at some point before the July 15th
disciplinary hearing, Lowery’s documents did not put the RCSD on notice of
potential FMLA-qualifying leave. See Cruz, 428 F.3d at 1383-86. Lowery relies
on a certificate from her doctor which stated that Lowery could return to work on
June 30, 2004, and simply said that her previous absence was due to “medical
reasons.” Lowery also relies on a letter dated July 14, 2004, stating that, since
May 2004, Lowery’s doctor had been treating her for depression and anxiety.
Finally, Lowery points to another letter from her doctor concerning Lowery’s
absence from work for “medical reasons,” although this letter is undated and does
not specify the most recent date of care. None of these documents informed RCSD
that on the day of her hearing, Lowery was suffering from a condition that might
qualify her for FMLA leave.
II. Procedural Due Process
In order to establish a procedural due process violation under 42 U.S.C. §
1983, a plaintiff must show: “(1) a deprivation of a constitutionally-protected
liberty or property interest; (2) state action; and (3) constitutionally-inadequate
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process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). Public
employees who can be discharged only for cause have a constitutionally protected
property interest in their employment, which cannot be terminated without due
process. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92
S. Ct. 2701, 33 L. Ed. 2d 548 (1972). Due process requires that “a deprivation of
life, liberty, or property be preceded by notice and opportunity for hearing
appropriate to the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 542, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494 (1985). We have explained
that notice in this context is sufficient if it notifies the public employee of the
charges against him and is timely. Harrison v. Wille, 132 F.3d 679, 684 (11th Cir.
1998). So, “a full evidentiary hearing is not required,” and the pre-termination
hearing does not “have to establish conclusively the propriety of the termination.”
Id. Rather, the employee “need only be given an opportunity to present his side of
the story.” Id. If the local procedure is inadequate, we will consider any
procedures that would be made available as a judicial remedy under applicable
state law. See generally Cotton v. Jackson, 216 F.3d 1328, 1331-33 (11th Cir.
200) (considering remedies under Georgia law).
As an initial matter, to the extent Lowery makes a substantive due process
claim, we need not address that claim because the district court did not authorize
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Lowery to proceed on such a claim and Lowery has not shown that the district
court improperly construed or regulated her pleadings below. In any event, our
decision in McKinney v. Pate, 20 F.3d 1550, 1560-61 (11th Cir. 1994) (en banc),
would render such a claim futile. Further, as discussed in Issue I above, because
Lowery has made no showing that Strength interfered with her alleged FMLA
rights, we need not address whether Strength was entitled to qualified immunity.
Here, Lowery was informed of the Review Board hearing and afforded an
opportunity to present evidence on her behalf. See Loudermill, 470 U.S. at 542,
105 S.Ct. at 1493. Lowery was informed that a Review Board hearing was
scheduled to discuss her involvement in the restaurant altercation. At the hearing,
Lowery and her husband testified and presented character statements on Lowery’s
behalf. The results of the investigation of the restaurant incident were also
presented to Lowery. Lowery’s argument that she was entitled to a more
comprehensive hearing is misplaced. We simply require that a public employee
receive timely notice, and be given an opportunity to present her side of the story.
See Wille, 132 F.3d at 684. Moreover, Georgia’s law supplies a further remedy for
any perceived deficiencies in the Sheriff’s procedures, and there is no indication
that Lowery sought a state law remedy for her grievances. See Cotton, 216 F.3d at
1333. Lowery’s hearing met the minimal requirements of due process, and,
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accordingly, the district court’s grant of summary judgment on Lowery’s
procedural due process claim is affirmed.
AFFIRMED.
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