Robin Amaro Brungart v. Bellsouth Business Systems ( 2000 )

Robin Amaro BRUNGART, Plaintiff-Appellant,
v.
BELLSOUTH TELECOMMUNICATIONS, INC., Defendant-Appellee.
No. 99-14472.
United States Court of Appeals,
Eleventh Circuit.
Oct. 24, 2000.
Appeal from the United States District Court for the Northern District of Alabama.(No. 98-02558-CV-AR-S),
William M. Acker, Jr., Judge.
Before CARNES, MARCUS and FARRIS*, Circuit Judges.
CARNES, Circuit Judge:
Robin Amaro Brungart appeals from the district court's grant of summary judgment in favor of
BellSouth Telecommunications, Inc. ("BellSouth"), on her claims under the Family and Medical Leave Act
("FMLA"), 29 U.S.C. § 2601, et seq. Brungart argues she was wrongfully denied FMLA leave pursuant to
29 C.F.R. § 825.110(d) and also that BellSouth retaliated against her in violation of the FMLA. This appeal
primarily presents two issues: (1) whether that part of the notice provision of the § 825.110(d) regulation
which purports to create eligibility based upon the failure of an employer to notify the employee of
ineligibility within a specified time is a valid interpretation of the FMLA; and (2) whether termination of an
employee the day before the commencement of scheduled FMLA leave always creates a genuine issue of
material fact about the causal connection element for a prima facie case of discrimination. We answer both
questions in the negative.
I. BACKGROUND1
In February 1991 Robin Amaro Brungart began working for BellSouth in Florida as a service
representative. On December 1, 1994 she began an unpaid leave of absence which lasted until September
1996. On September 23, 1996, Brungart was transferred to a service representative position for BellSouth
in Birmingham, Alabama, and began a three week training program.
*
Honorable Jerome Farris, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
1
The facts we set out are drawn from the evidence in the summary judgment record viewed in the
light most favorable to the party against whom summary judgment was granted. See Allison v. McGhan
Med. Corp., 184 F.3d 1300, 1306 (11th Cir.1999) (internal citations omitted).
On December 2, 1996, Brungart's mother was hospitalized for emergency heart surgery. Brungart
told her supervisors that she wanted to apply for FMLA leave effective immediately, and she submitted an
FMLA leave application form, all on that same day.
Later that day, Brungart attempted to call one of her supervisors, Peggy Thompson, but was unable
to reach her. Afterward, Thompson called Brungart who was at the hospital, and Brungart informed her that
she would be off from work for the next ten days due to her mother's condition. Thompson told Brungart to
keep in touch with the office every few days. Brungart did so, but on December 10, 1996, Thompson called
Brungart and told her that she had been listed as a "no report" because she had not called in every day.
Brungart responded that she had not been told to call in every day. The next day, Brungart called Thompson
to let her know that she would not be at work due to her mother's condition. Brungart was written up for not
calling in that day before her shift started. When Brungart eventually returned to work, she received a written
reprimand for her absence.
By letter dated January 16, 1997, BellSouth denied Brungart's December 2, 1996 request for FMLA
leave. The grounds BellSouth gave for the denial was that Brungart had not worked 1,250 hours in the past
12 months, which is the minimum number of hours the FMLA requires before an employee is entitled to
statutorily protected leave.
As a service representative, Brungart's job was to answer calls from customers wishing to discuss
service orders. To maintain customer service, BellSouth measures the amount of time service representatives
are actually available to take calls compared with the amount of time they are scheduled to do so. Because
it involves adhering to a schedule, this measurement is called the adherence percentage. Service
representatives in Birmingham were initially required to meet an adherence percentage of 93, but that
percentage was increased in early 1997 to 94.5.
Brungart did not meet the required adherence percentage for October through December, the three
full months that she worked at BellSouth in 1996. Because BellSouth has a grace period for employees
coming out of training, Brungart was not disciplined in 1996 for failing to meeting her adherence percentages.
However, Brungart never met the required adherence percentage at any time before she was terminated in
July of 1997. BellSouth's discipline process consists of progressive steps: counseling, warning, suspension,
and finally termination of employment. Brungart received a warning and was suspended twice during 1997
because of her failure to meet adherence percentage requirements.
Some time in May or June of 1997, Brungart again applied for FMLA leave, this time so that she
could have knee surgery. BellSouth's FMLA administrator approved three weeks of leave to begin July 10,
1997.
In early July, Calvin Nelson became the new top tier manager of the service representatives in
Birmingham. He oversaw Vicky Capuzzo, who was Brungart's immediate supervisor. Also in early July,
Capuzzo asked Brungart to resign, but Brungart refused. After the June adherence percentages were reported,
Capuzzo told Nelson that Brungart had not met her required adherence objectives for June and also informed
Nelson about Brungart's previous discipline (her warning and two suspensions during 1997) for failure to
meet the adherence objectives.
Nelson made the decision to terminate Brungart. Nelson testified in his deposition that when he
decided to terminate Brungart, he had no knowledge of her scheduled FMLA leave, and there is no evidence
to contradict his testimony about that. Brungart was terminated on July 9, 1997, the day before she was to
begin her requested leave for the knee surgery. She was told that she was being terminated for failure to meet
BellSouth's adherence requirements.
Brungart sued BellSouth in a complaint which, after amendment, contained four counts. Count 1
claimed that BellSouth's termination of Brungart on July 9, 1997 had violated the FMLA, because it occurred
as a result of her having requested leave to which she was entitled under the FMLA and which was scheduled
to begin on July 10, 1997. Count 2 claimed that BellSouth had violated the FMLA by denying Brungart leave
on an earlier occasion, leave she had requested in December of 1996. At that time, Brungart had not been
employed the minimum number of hours necessary to make her eligible for FMLA leave, but she claimed
to be entitled to it anyway, because BellSouth had failed to respond to her request for leave within two days.
Count 3 claimed that BellSouth violated Brungart's rights under the FMLA by not giving her regular notice
of her rights and responsibilities under the FMLA, and by not presenting her with written notice granting or
denying her December 1996 leave request. Count 4 claimed that BellSouth had violated the Labor
Management Relations Act in various ways.
Both parties filed motions for summary judgment. The district court granted BellSouth's motion for
summary judgment on all counts. Brungart appeals only the district court's grant of summary judgment to
BellSouth on the three FMLA counts.
II. DISCUSSION
We review the district court's grant of summary judgment de novo. See Allison, 184 F.3d at 1306.
Summary judgment is appropriate only if "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 begin with Count 2, because it
concerns events that are first in time.
A. WRONGFUL DENIAL OF LEAVE
In Count 2 of her complaint, Brungart claimed that BellSouth violated the FMLA with respect to the
FMLA leave request she submitted on December 2, 1996 for her mother's emergency heart surgery. Congress
enacted the FMLA "to balance the demands of the workplace with the needs of families, to promote the
stability and economic security of families, and to promote national interests in preserving family integrity."
29 U.S.C. § 2601(b)(1). The FMLA entitles eligible employees to take up to 12 weeks of leave during any
12-month period for medical reasons, for the birth or adoption of a child, and for the care of a spouse, child,
or parent who has a serious health condition. See 29 U.S.C. § 2601(b)(2); 29 U.S.C. § 2612(a)(1). Not all
employees are eligible for leave under the FMLA. The statute defines those who are as follows:
The term "eligible employee" means an employee who has been employed—
(i) for at least 12 months by the employer with respect to whom leave is requested ...; and
(ii) for at least 1,250 hours of service with such employer during the previous 12-month
period.
29 U.S.C. § 2611(2)(A). It is undisputed that at the time of her leave request in December of 1996 Brungart
had not worked 1,250 hours for BellSouth during the previous 12-month period.
Brungart's theory behind Count 2 is that BellSouth's failure to inform her of her eligibility for FMLA
leave within the time required by 29 C.F.R. § 825.110(d) made her eligible for the leave, or at least should
have prevented BellSouth from denying that she was eligible, and as a result its denial of leave was wrongful.
Brungart did not give notice of her need for leave more than two business days prior to the date she wanted
to commence the leave, but instead applied for leave to begin effective immediately. In those circumstances,
the relevant portion of § 825.110(d) is the following:
Where the employee does not give notice of the need for leave more than two business days prior to
commencing leave, the employee will be deemed to be eligible if the employer fails to advise the
employee that the employee is not eligible within two business days of receiving the employee's
notice.
Id.2
2
Section 825.110(d) provides in full:
The determinations of whether an employee has worked for the employer for at least
1,250 hours in the past 12 months and has been employed by the employer for a total of
at least 12 months must be made as of the date leave commences. If an employee notifies
The validity of § 825.110(d) is squarely presented in this case. It is undisputed that in December
1996 when Brungart applied for medical leave to begin immediately she was statutorily ineligible for FMLA
leave, because she had not worked for BellSouth the requisite 1,250 hours within the previous 12-month
period. Likewise, it is undisputed that BellSouth failed to advise her of her ineligibility for FMLA leave until
more than a month after it received her application for it. If the § 825.110(d) regulation is valid, by virtue
of it Brungart is to be deemed eligible for FMLA leave in December 1996, but if the regulation is invalid
there is no basis for her eligibility at that time. The district court held that BellSouth was entitled to summary
judgment on this count because § 825.110(d) was "unconstitutional to the extent that it converts ineligible
employees into eligible employees, contrary to the express language of the FMLA."
The only circuit to have addressed the issue so far is the Seventh, which held that this part of the §
825.110(d) regulation is invalid. See Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th Cir.2000).3
We could not agree more. As the Seventh Circuit explained: "The statutory text is perfectly clear and covers
the issue. The right of family leave is conferred only on employees who have worked at least 1,250 hours
in the previous 12 months." Id. To put it in Chevron terms, "Congress has directly spoken to the precise
question at issue," which is eligibility for the medical leave rights created in the statute, and because "the
intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v. Natural Resources Defense
the employer of the need for FMLA leave before the employee meets these eligibility
criteria, the employer must either confirm the employee's eligibility based upon a
projection that the employee will be eligible on the date leave would commence or must
advise the employee when the eligibility requirement is met. If the employer confirms
eligibility at the time the notice for leave is received, the employer may not subsequently
challenge the employee's eligibility. In the latter case, if the employer does not advise the
employee whether the employee is eligible as soon as practicable (i.e., two business days
absent extenuating circumstances) after the date employee eligibility is determined, the
employee will have satisfied the notice requirements and the notice of leave is considered
current and outstanding until the employer does advise. If the employer fails to advise
the employee whether the employee is eligible prior to the date the requested leave is to
commence, the employee will be deemed eligible. The employer may not, then, deny the
leave. Where the employee does not give notice of the need for leave more than two
business days prior to commencing leave, the employee will be deemed to be eligible if
the employer fails to advise the employee that the employee is not eligible within two
business days of receiving the employee's notice.
3
In addition to the district court in this case, four other district courts have addressed this issue, and all
but one of them have reached the same conclusion. See McQuain v. Ebner Furnaces, Inc., 55 F.Supp.2d
763 (N.D.Ohio 1999) (holding § 825.110(d) to be invalid); Seaman v. Downtown Partnership of
Baltimore, Inc., 991 F.Supp. 751 (D.Md.1998) (same); Wolke v. Dreadnought Marine, Inc., 954 F.Supp.
1133 (E.D.Va.1997) (same); but see Miller v. Defiance Metal Products, Inc., 989 F.Supp. 945 (N.D.Ohio
1997) (holding § 825.110(d) to be valid).
Council, Inc., 467 U.S. 837, 842—43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). Congress could
have, but did not, confer the right to family medical leave on any employee who did not receive a prompt
response from the employer to her leave request.
There is no ambiguity in the statute concerning eligibility for family medical leave, no gap to be
filled. Instead, the Department of Labor in this regulation has attempted to pry apart the clear words of the
act in order to create a gap into which it can wedge its policy preference. We understand the Department's
motive, which is to further the goals of the act by forcing employers to respond to leave requests within a
reasonable period of time. But when an administrative agency seeks to improve legislation by altering the
basic coverage provisions that Congress has written into the law, it has gone too far. The rule of law in
general, and separation of powers principles in particular, require that such administrative hubris be reigned
in, and that the task of improving the basic provisions of statutes be left to the same body that wrote them in
the first place.
We note that our conclusion here is strongly supported by our decision last year in McGregor v.
Autozone, Inc., 180 F.3d 1305 (11th Cir.1999). In that case this Court invalidated another Department of
Labor regulation, one which provided that if an employer failed to give prospective notice that an absence
was being counted as FMLA leave, the leave taken could not be counted against the employee's 12-week
entitlement under the FMLA, with the result that the employer would be required to give a total of more than
12 weeks of leave. See id. at 1307-08 (citing 29 C.F.R. § 825.208(c); 29 C.F.R. § 825.700(a)). We
explained that the regulation "converts the statute's minimum of federally-mandated unpaid leave into an
entitlement to an additional 12 weeks of leave unless the employer specifically and prospectively notifies the
employee that she is using her FMLA leave." Id. at 1308. Because the FMLA itself "does not suggest that
the 12 week entitlement may be extended," we held that the regulation was contrary to the statute and
therefore invalid and unenforceable. Id. That reasoning fits here.
For all of these reasons, we hold that 29 C.F.R. § 825.110(d) is invalid insofar as it purports to extend
the eligibility provisions of the FMLA to an otherwise ineligible employee who is not promptly notified after
requesting leave that she is ineligible for it under the statute.4 Because Brungart's sole theory of eligibility
4
In dicta the Seventh Circuit has speculated about the possibility of an employer being estopped from
denying an employee's eligibility for FMLA leave if the employee reasonably relied to her detriment on
the employer's failure to notify her promptly of her ineligibility. See Dormeyer, 223 F.3d at 582. We do
not have those facts before us, because Brungart did not reasonably rely to her detriment upon BellSouth's
failure to respond more promptly to her leave request. It is true that Brungart was written up for taking
for FMLA leave involved in Count 2 (the December 1996 request) fails, the district court did not err in
granting summary judgment against her on that count.
B. RETALIATORY DISCHARGE
Although she was not eligible for FMLA leave in December 1996, which is the time involved in
Count 2 of the complaint, Brungart had worked sufficient hours to become eligible before July of 1997, which
is the time involved in Count 1 of the complaint. In that count Brungart claimed that BellSouth violated the
FMLA by terminating her after her July 1997 application for FMLA leave, and in interference with that
exercise of her rights under the statute. In her brief, Brungart characterizes this as a retaliation claim.5
In addition to providing specified employees the right to certain leave, the FMLA also protects
employees from being discriminated against by their employers for exercising or attempting to exercise the
rights it provides. The statute makes it "unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under this subchapter [of the FMLA]." 29 U.S.C.
§ 2615(a)(1). The statute also makes it "unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful by this subchapter [of the
FMLA]." 29 U.S.C. § 2615(a)(2). Additionally, "[a]n employer is prohibited from discriminating against
employees or prospective employees who have used FMLA leave." 29 C.F.R. § 825.220(c).
When evaluating a claim of retaliation under the FMLA, in the absence of direct evidence of
discrimination on the part of the employer, we apply the burden-shifting framework established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),
for evaluating Title VII retaliatory discharge claims. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274,
1283 (11th Cir.1999); see also King v. Preferred Technical Group, 166 F.3d 887, 891-92 (7th Cir.1999)
unauthorized leave, but she left work immediately and there is no evidence she would not have taken any
leave to be with her mother if she had been informed right away by BellSouth that she was not entitled to
it. While the evidence viewed in the light most favorable to Brungart indicates that she might not have
been gone as long had she been informed earlier that she was not eligible for FMLA leave, she conceded
in deposition that she would have taken some leave anyway. And there is no evidence Brungart would
not have been written up just the same if she had returned earlier. We decline to speculate about what the
result might be if there had been facts to support a detrimental reliance argument. See McDonald's Corp.
v. Robertson, 147 F.3d 1301, 1314-15 (11th Cir.1998) (Carnes, J., concurring) (noting that dicta can be
useful, but explaining why views expressed in dicta are less reliable than those embodied in holdings).
5
The statute itself uses the language of interference, restraint, denial, discharge, and discrimination,
not retaliation. But nomenclature counts less than substance. And the substance of the FMLA provisions
as they concern this case is that an employer may not do bad things to an employee who has exercised or
attempted to exercise any rights under the statute. Asking for medical leave is exercising or attempting to
exercise a right under the statute, and being fired is a bad thing.
("We find no reason to treat an intent-based FMLA claim ... any differently than other retaliatory discharge
cases."); Chaffin v. John H. Carter Co., Inc. 179 F.3d 316, 319 (5th Cir.1999) (applying the McDonnell
Douglas framework to evaluate claims that an employee was penalized for exercising rights protected by the
FMLA in the absence of direct evidence of discrimination); Hodgens v. General Dynamics Corp., 144 F.3d
151, 160 (1st Cir.1998) (same); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (same).
In order to establish a prima facie case of retaliatory discharge or retaliation using the McDonnell
Douglas framework, a plaintiff must show that (1) she engaged in statutorily protected conduct; (2) she
suffered an adverse employment action; and (3) there is a causal connection between the protected conduct
and the adverse employment action. See Parris v. Miami Herald Pub'g Co., 216 F.3d 1298, 1301 (11th
Cir.2000); Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir.2000) (Title VII); Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir.1999) (ADA).
BellSouth does not dispute that Brungart has satisfied the first two elements of the prima facie case.
Brungart did engage in protected conduct by applying for FMLA leave for knee surgery, and she also suffered
the adverse employment action of being discharged. The dispute is about whether Brungart came forth with
sufficient evidence to create a genuine issue of fact that her application for FMLA leave caused the
termination of her employment with BellSouth, which means: could a jury reasonably find from the evidence
presented at the summary judgment stage that Brungart was fired because she sought FMLA leave? The
district court granted summary judgment to BellSouth because it concluded that Brungart failed to create a
genuine issue of fact about causation, that no reasonable jury could find a causal link between her request for
leave and her termination.
Brungart argues that the fact she was fired the day before she was scheduled to begin her medical
leave on July 10, 1997 is sufficient to create a genuine issue of material fact about causal connection, the third
element of the prima facie case. To establish the causal connection element, "a plaintiff need only show 'that
the protected activity and the adverse action were not wholly unrelated.' " Clover v. Total Sys. Servs., Inc.,
176 F.3d 1346, 1354 (11th Cir.1999) (quoting Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189
(11th Cir.1985)). In order to show the two things were not entirely unrelated, the plaintiff must generally
show that the decision maker was aware of the protected conduct at the time of the adverse employment
action. See Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.1993); Raney v. Vinson Guard Serv.,
Inc., 120 F.3d 1192, 1197 (11th Cir.1997) ("[I]n a case involving a corporate defendant the plaintiff must
show that the corporate agent who took the adverse action was aware of the plaintiff's protected
expression...."). That requirement rests upon common sense. A decision maker cannot have been motivated
to retaliate by something unknown to him. As with most facts, the defendant's awareness can be established
by circumstantial evidence. See Goldsmith, 996 F.2d at 1163.
The general rule is that close temporal proximity between the employee's protected conduct and the
adverse employment action is sufficient circumstantial evidence to create a genuine issue of material fact of
a causal connection. See Gupta, 212 F.3d at 590; Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926,
934 (11th Cir.1995) ("Proximity in time is sufficient to raise an inference of causation.") However, there is
this exception: temporal proximity alone is insufficient to create a genuine issue of fact as to causal
connection where there is unrebutted evidence that the decision maker did not have knowledge that the
employee engaged in protected conduct. See Clover, 176 F.3d at 1355—56. In Clover the plaintiff, who
brought a Title VII retaliation claim, had been informed the day after she engaged in protected conduct that
she was going to be terminated, and later she was terminated. Id. at 1349. Notwithstanding the close
temporal proximity between the protected conduct and the initial decision to terminate the plaintiff, we
reversed the district court's denial of the defendant's motion for judgment as a matter of law on the retaliation
claim. See id. at 1355—56. We did so because the plaintiff "failed to present sufficient evidence to establish
that [the decision maker] was aware of her protected conduct." Id. at 1356. Exactly the same situation is
before us in this case, and the Clover decision compels the same result.6 See generally Hudson v. Southern
Ductile Casting Corp., 849 F.2d 1372, 1376 (11th Cir.1988) (affirming grant of summary judgment to the
defendant on retaliatory discharge claim where there was uncontradicted evidence that the decision makers
were unaware of the plaintiff's threat to file an EEOC charge); McCollum v. Bolger, 794 F.2d 602, 610—11
(11th Cir.1986) (affirming judgment for defendant and holding that the plaintiff failed to prove a prima facie
case of retaliation where evidence at trial showed that the decision maker did not know that the plaintiff was
engaging in protected conduct).
Brungart contends that although Title VII cases often require actual knowledge on the part of the
decision maker, under the FMLA, temporal proximity alone is sufficient because it implies knowledge. To
6
Clover did involve judgment as a matter of law, while the present case involves summary judgment.
However, as the Supreme Court and this Court have explained, "the standard for granting summary
judgment mirrors the standard for judgment as a matter of law, such that the inquiry under each is the
same." Chapman v. AI Transport, --- F.3d ----, ---- n.11 (11th Cir.2000) (en banc) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., --- U.S. ----, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000)).
say that temporal proximity "implies" knowledge is simply to say that we should assume such knowledge
even though there is no evidence other than temporal proximity to cast any doubt on the decision maker's
denial of knowledge. Or more accurately, at the summary judgment stage, "implying" knowledge from
temporal proximity despite the unrefuted testimony of the decision maker that he knew nothing of the
protected conduct means that we should allow a factfinder to decide, without any basis other than temporal
proximity, that the decision maker is lying.7 But there is no good reason why we should do that in FMLA
cases but not in Title VII cases, and we know from our Clover decision that we do not do that in Title VII
cases.
Brungart also argues that even if the decision maker did not have knowledge of the protected
conduct, knowledge should be "imputed" to the corporation where other corporate officials or supervisors
had knowledge of it. That position is, of course, foreclosed by our Clover decision, because the defendant
in that case was a corporation. Even if the Clover decision did not exist, we would not be persuaded to adopt
Brungart's imputed knowledge theory. The BellSouth corporation itself did not actually make the decision
to take the adverse employment action; Nelson made that decision, albeit on the corporation's behalf.
Because Nelson did not know of the protected conduct, he could not have taken that action on the
corporation's behalf because of the protected conduct. This is another way of saying that the fact the
employer is a corporation does not relieve a plaintiff of the burden of showing a causal connection between
the protected conduct and the decision to take the adverse employment action.
Because the evidence is unrefuted that Nelson, the decision maker, did not know Brungart had
requested and been scheduled for medical leave, Brungart failed to create a genuine issue of fact as to a causal
connection between her termination and her scheduled leave or her request for it. Accordingly, she failed to
establish a prima facie case of retaliation under the FMLA, and the district court correctly granted summary
judgment to BellSouth on this claim.8
7
Brungart argues that Nelson's knowledge of her request for medical leave should be inferred because
he was her direct supervisor. Whether that factual premise would make any difference is not something
we need to decide, because the record reveals without evidentiary dispute that Nelson was not Brungart's
direct supervisor, but instead was the supervisor of her supervisor.
8
In addition to contesting the district court's grant of summary judgment in favor of BellSouth on
Counts 1 and 2, which we have fully discussed, Brungart also contends the district court erred in granting
summary judgment in favor of BellSouth on Count 3. In that count, Brungart alleged that BellSouth failed
to give her "regular notice of her rights and responsibilities under the FMLA" and "written notice either
expressly denying or granting her leave under the FMLA prior to her taking leave in December, 1996 for
her mother's heart surgery." Having considered her arguments against the factual circumstances of this
III. CONCLUSION
The district court's judgment is AFFIRMED.
case, we affirm the district court's grant of summary judgment on this issue without further discussion.