United States Court of Appeals

For the Eighth Circuit

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No. 12-1405

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Allen Bradley

lllllllllllllllllllll Plaintiff - Appellant

v.

Little Rock Wastewater Utility; Dale Gilbert, in his individual and official

capacity as a Supervisor of Little Rock Wastewater Utility

lllllllllllllllllllll Defendants - Appellees

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 Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: January 16, 2013

 Filed: February 14, 2013

[Unpublished]

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Before RILEY, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.

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PER CURIAM.

Allen Bradley claims that the Little Rock Wastewater Utility (“LRW”), his

former employer, and Dale Gilbert, his former supervisor, interfered with his rights

under the Family and Medical Leave Act (“FMLA”). He also claims that LRW

terminated his employment in violation of the Americans with Disabilities Act
(“ADA”). The district court entered summary judgment in favor of Gilbert and

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LRW, and Bradley appeals.

Bradley was employed by LRW, the municipally owned sewer utility for Little

Rock, Arkansas, from 1994 until July 2009. As an LRW employee, Bradley had a

history of poor performance, consistently ranking below his peers in annual

evaluations. LRW rates its employees in ten different performance categories each

year. Out of 40 possible points, Bradley earned scores of 23 and 25 in 2007 and

2008, respectively. Comparatively, the three other technicians on Bradley’s team

earned scores between 32 and 36. 

Between April 14 and May 25, 2009, Bradley arrived late for work three times,

and he also missed two full days. On May 26, he again was absent from work and did

not contact LRWwith an explanation, in violation of LRW’s call-in policy. That day,

Gilbert issued Bradley a written warning and placed him on probation for six months

for failing to comply with LRW’s attendance policies. 

Gilbert issued Bradley a second written warning on July 17, 2009, which

identified several other performance-related deficiencies. In this warning, Gilbert

cited Bradley for failing to complete assigned work in a timely manner, failing to

complete paperwork as instructed, failing to perform department work in an

organized manner, and inability to perform the tasks required by his position. Gilbert

also cited Bradley for failing to wear safety shoes in hazardous areas as required by

LRW’s safety policies. 

On July 22, 2009, LRWterminatedBradley’s employment for insubordination. 

Bradley had sustained an injury at home in November 2008, and he had been on light

The Honorable D. P. Marshall, Jr., United States DistrictJudge for the Eastern 1

District of Arkansas.

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duty since February 2009. When Gilbert observed Bradley performing several

restricted tasks, he asked Bradley to produce a doctor’s note releasing himto full duty

by July 21. Bradley failed to produce a note, and Gilbert arranged a meeting the next

day to inform Bradley that he was being placed on administrative leave. Before the

meeting ended, however, Bradley became belligerent and, despite instructions to the

contrary, refused to leave the facility. Gilbert then told Bradley that he would call the

police if Bradley did not leave immediately. When Gilbert did call the police,

Bradley finally left. LRW terminated Bradley’s employment the next day.

Bradley filed suit against LRWand Gilbert, claiming that LRWinterfered with

his FMLA rights and failed to accommodate his diabetesin violation of Title II of the

ADA. The district court granted LRW’s motion for summary judgment, finding that 2

(1) Bradley’s FMLA claim failed because he never gave notice of his intent to take

FMLA leave, and (2) Bradley’s ADA claim failed because he was not a “qualified

individual.” 

“We review the district court’s grant of summary judgment de novo.” Bacon

v. Hennepin Cnty. Med. Ctr., 550 F.3d 711, 714 (8th Cir. 2008). “Viewing the

evidence and drawing all inferences in favor of the non-moving party, summary

judgment is appropriate if there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.” Id. “This court may affirm the

summary judgment decision on any basis supported by the record.” Heacker v.

Safeco Ins. Co. of Am., 676 F.3d 724, 727 (8th Cir. 2012).

Bradley first appeals the adverse grant of summary judgment on his FMLA

claim. The FMLA allows an employee to take twelve weeks of leave during any

Bradley also brought claims under the Age Discrimination in Employment Act 2

of 1967 and 42 U.S.C. § 1983. The district court also entered summary judgment in

favor of LRW with respect to these claims, and Bradley does not appeal this decision. 

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twelve-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). “The FMLA recognizes two types of claims by employees:

interference and retaliation.” Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir.

2012); 29 U.S.C. § 2615(a)(1) (“It shall be unlawful for any employer to interfere

with, restrain, or deny the exercise of or the attempt to exercise, any right provided

[by the FMLA].”). In his brief and also at oral argument, Bradley insisted that his

FMLA claim on appeal is based solely on an interference theory. 

To state a claim for interference, the employee must show that he gave notice

of his need for FMLA leave. Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008). 

After the employee establishes that he gave proper notice, he bears the initial burden

of proof to show that he was entitled to a denied FMLA benefit. Ballato 676 F.3d at

772. If the plaintiff makes a showing of interference, the burden then shifts to the

employer to establish that there was a reason for terminating the employment that was

unrelated to the employee exercising his FMLA rights. Throneberry v. McGehee

Desha Cnty. Hosp., 403 F.3d 972, 978-79 (8th Cir. 2005). “As long as an employer

can show a lawful reason, i.e., a reason unrelated to an employee’s exercise of FMLA

rights, for not restoring an employee on FMLA leave to her position, the employer

will be justified to interfere with an employee’s FMLA leave rights.” Id. at 979. 

Although he does not claim to have been seeking to exercise any FMLA rights

at the time, Bradley argues that LRW interfered with his FMLA rights because it

considered his diabetes-related absences when it terminated his employment. 

Regardless of whether Bradley meets his initial burden of proof, however, LRW

offers a legitimate reason for termination that is unrelated to Bradley exercising any

FMLA rights. The record reflects that on May 26, 2009, LRW placed Bradley on

probation for failing to follow the proper notice procedures for an illness-related

absence. On July 21, 2009, Gilbert decided to place Bradley on administrative leave

for failing to observe his light duty restrictions without producing a doctor’s note

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releasing himfromlight duty. Finally, Gilbert emailed his supervisors to recommend

that Bradley’s employment be terminated based on Bradley’s conduct at the July 22

meeting. Gilbert wrote the July 22 email immediately after Bradley became

belligerent and refused to leave the premises when Gilbert told him that he was to be

placed on administrative leave. 

The record supports LRW’s assertion that it terminated Bradley’s employment

for insubordination, which is a legitimate reason unrelated to Bradley’s exercise of

any FMLA rights. Cf. Putman v. Unity Health Sys., 348 F.3d 732, 736 (8th Cir. 2003)

(noting that “[o]ur cases have repeatedly held that insubordination and violation of

company policy are legitimate reasons for termination” in the employment

discrimination context). Bradley presents no evidence to create a material question

of fact on this issue. There is nothing in the record to suggest that LRW considered

Bradley’s absences when it terminated his employment on July 22, much less that it

even believed the absences were FMLA eligible. His FMLA interference claim

therefore fails. See Throneberry, 403 F.3d at 979 (8th Cir. 2005) (“[A] reason for

dismissal insufficiently related to FMLA leave will not support recovery under an

interference theory.” (quoting Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d

955, 961 (10th Cir. 2002)). 

Bradley also appeals the adverse grant of summary judgment on his failure-toaccommodate claim under Title II of the ADA. Title II provides: 3 4

At oral argument, Bradley confirmed that his ADA claim is based solely on 3

LRW’s failure to accommodate his diabetes by excepting him from its mandatory

safety shoe policy.

Plaintiffs typically bring employment discrimination cases under Title I of the

4

ADA, which addresses employment. Bradley claimed violations of both Title I and

Title II, but the district court determined that his Title I claim failed because Bradley

did not comply with the EEOC exhaustion requirements. See 42 U.S.C. § 12117(a). 

Bradley does not appeal the denial of his Title I claim. 

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[n]o qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.

42 U.S.C. § 12132. This court has not decided whether Title II applies to

employment discrimination casesfiled against public employers, and the circuits that

have addressed this question are split. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531

U.S. 356, 360 n.1 (2001) (noting, without resolving, the circuit split); Zimmerman v.

Or. Dep’t of Justice, 170 F.3d 1169, 1178 (9th Cir. 1999) (holding that Title II does

not state a cause of action for employment discrimination); Bledsoe v. Palm Beach

Cnty. Soil & Water Conservation Dist., 133 F.3d 816, 825 (11th Cir. 1998) (holding

that Title II doesstate a cause of action for employment discrimination). We need not

decide the issue to resolve this case, however, because even assuming that Bradley’s

failure-to-accommodate claim is cognizable under Title II, the claim fails.

Bradley alleges that LRW failed to accommodate his diabetes because it

considered his failure to wear safety shoes when it decided to terminate his

employment. Bradley argues that his diabetes caused his feet to swell when he wore

the safety shoes and that LRW could have reasonably accommodated his disability

by periodically allowing him to wear different shoes. Bradley presents no evidence,

however, that he ever requested such a workplace accommodation orthat he even told

anyone at LRW about his problem with the safety shoes. As LRW had no notice that

Bradley sought accommodation, it had no duty to accommodate him, regardless of

whether his proposed accommodation is reasonable. See Ballard v. Rubin, 284 F.3d

957, 962 (8th Cir. 2002) (holding that an employee must provide his employer with

“enough information that, under the circumstances, [the employer] can be fairly said

to know that [the employee] sought accommodation for his disability”). 

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Accordingly, we affirmthe district court’s grant ofsummary judgment to LRW

on both the FMLA and the ADA claims.

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