* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

1 After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 27 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

GWENDOLYN BRYANT,

Plaintiff-Appellant,

v. AMERICAN AIRLINES, INC., a Delaware corporation,

Defendant-Appellee. No. 02-5106 (D.C. No. 00-CV-995-EA) (N.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.

Plaintiff Gwendolyn Bryant appeals from the distric t court’s grant of summary judgment to defendant, her former employer, on claims alleging violation of the Family Medical Leave Act (FMLA) an d Workers’ Compensation retaliation. 1 We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we review1 (...continued)

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

2 The district court also ruled that it would not con sider certain allegations in the plaintiff’s summary judgment affidavit, to the extent that they contradicted her earlier deposition testimony. We agree, and have not considered these allegations, which plaintiff claims create disputed issues of fact. See Stanfield v. Osborne Indus., Inc. , 52 F.3d 867, 871 n.4 (10th Cir. 1995). -2- the district court’s ruling de novo. See McBride v. Citgo Petroleum Corp. , 281 F.3d 1099, 1107 (10th Cir. 2002). The parties are familiar with the underlying facts and procedural history set out by the district court, Aplt. App. at 311-19, wh ich we do not repeat here except as necessary. Plaintiff was terminated from defend ant’s employ, pursuant to a letter of resignation and accompanying agreement, a fter reporting late for a work shift beginning November 19, 1998. She subsequentl y filed a complaint alleging interference with her attempts to exercise her righ ts under the FMLA, refusal to grant FMLA leave, and retaliation in connection wit h her state Workers’ Compensation claim. The district court concluded that summary judgment was warranted because plaintiff 1) failed to give defen dant sufficient notice under the FMLA; 2) waived her claims by signing the resignati on letter and agreement; and 3) failed to make out a prima facie case of retaliation under applicable state law. 2 On appeal, plaintiff argues that the FMLA allows employees to give notice as soon as practicable rather than in advance of th e requested leave, and that she-3-

need not have mentioned the FMLA expressly to give defendant adequate notice. However, there is no admissible evidence in the rec ord showing that plaintiff asked for leave with respect to the evening of Nove mber 19, 1998, or even indicated that she could not work that shift. With out some indication to her supervisor that she needed leave in connection withher alleged back pain, defendant could not be put on notice such that its duties under the FMLA were triggered. See Bailey v. Amsted Indus., Inc. , 172 F.3d 1041, 1045 (8th Cir. 1999) (“‘An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave .’”) (quoting applicable regulation 29 C.F.R. § 825.302(c)) (emph asis added). Moreover, the FMLA form that plaintiff submitted earlier that sam e day to defendant’s medical department indicated she was not currently incapaci tated for work. Aplt. App. at
172. Admissible testimony demonstrates that she was prep ared to go to work; did report for her shift, albeit late; and did perform at least some of the duties of her job. See id. at 67-69, 105. “The FMLA provides for medical leave only when the applicant suffers from ‘a serious health condition that makes the emp loyee unable to perform the functions of the position of such employee.’” Doe v. United States Postal Serv. , 317 F.3d 339, 345 (D.C. Cir. 2003) (quoting the FML A, 29 U.S.C. § 2612(a)(1)(D)). Accordingly, we agree that neith er plaintiff’s conversations-4-

with her supervisor on November 19, 1998, nor her s ubmission of the FMLA form earlier that day constituted adequate notice under the FMLA that she either requested or was entitled to FMLA leave the night o f November 19. Rather, it is apparent from the FMLA form that she was requesting leave for future absences that might be necessitated by her back condition, w hich flared up from time to time. Plaintiff contends there was no waiver because her signing of the resignation letter and agreement was not voluntary and, in any case, the agreement excluded FMLA leave as a reason for termi nation. She argues that defendant relied on absences related to her back co ndition in deciding to terminate her. But we agree with the district court that plaintiff voluntarily signed the letter and agreement. Moreover, defenda nt’s employment records are replete with warnings about tardiness and notations of numerous absences, Aplt. App. at 120-43, many of them unrelated to plaintiff’s alleged chronic back condition which was the basis for requesting FMLA l eave. “[A]n employee who requests or is on FMLA leave has no greater protect ion against his or her employment being terminated for reasons not relatedto his or her FMLA request or leave than he or she did before submitting the request.” McBride , 281 F.3d at 1108. Defendant had ample reason, outside of any p ossibly FMLA-qualifying-5-

sick leave, to require plaintiff to sign the letterand accompanying agreement, resulting in her termination. On her retaliation claim, plaintiff argues that 1) defendant could have reasonably concluded she would file a Worker’s Comp ensation claim; and 2) causation is shown by an earlier attempt to term inate her in connection with an injury-related absence and the timing and facts sur rounding her termination. Our review of the record, however, persuades us there i s no record evidence that plaintiff’s back condition arose from or was exacerbated by an on-the-job injury. Both on-the-job injury and “receipt of treatment un der circumstances which put the employer on notice that treatment had been rend ered for a work-related injury” are factors of a prima facie case of retali ation under applicable state law. See Buckner v. Gen. Motors Corp. , 760 P.2d 803, 806 (Okla. 1988). In the absence of evidence which might have put defendant on notice of the possibility of a Worker’s Compensation claim, plaintiff’s retal iation claim fails. For the reasons stated above and those set out in the district court’s Order dated June 25, 2002, the judgment of the district c ourt is AFFIRMED.

Entered for the Court

Stephanie K. Seymour Circuit Judge