United States Court of Appeals

For the Eighth Circuit

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No. 12-1290

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Tanya Bosley

lllllllllllllllllllll Plaintiff - Appellant

v.

Cargill Meat Solutions Corporation

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: September 20, 2012

 Filed: February 5, 2013

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Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.

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SMITH, Circuit Judge.

Tanya Bosley, an employee of Cargill Meat Solutions Corporation ("Cargill"),

missed work because of depression and other health issues. Bosley missed the entire

month of February 2008. Bosley failed to use Cargill's call-in procedure for absences.

Bosley also did not notify Cargill that she would qualify for leave under the Family

and Medical Leave Act (FMLA), 29 U.S.C. § 2601 etseq. Cargill terminatedBosley's

employment, and Bosley sued Cargill, asserting FMLA entitlement and retaliation
claims. The district court granted Cargill's motion for summary judgment on both 1

claims. Bosley appealed, and we affirm.

I. Background

Tanya Bosley was hired by Cargill in September 2003. Bosley regularly

carpooled to work with her coworker, Christine Pilcher. Bosley sometimes missed

work due to illness, and she occasionally took leaves of absence under the FMLA.

William Crowell was Bosley's supervisor. Sometimes when Bosley was absent from

work due to illness, Pilcher would notify Crowell of the absence on Bosley's behalf.

On February 1, 2008, Pilcher arrived to pick up Bosley. Bosley told Pilcher that she

could not get up due to depression. Bosley missed work that day, and Pilcher

informed Crowell that Bosley was absent because she was "sick."

Cargill's attendance policy included a call-in procedure for employees to

inform Cargill of any necessary and unavoidable absences through an automated

phone system. Under Cargill's policy, failure to comply with the call-in procedure on

three consecutive work days would result in a voluntary termination of employment.

Bosley wasfamiliar with this policy. She had the call-in number programmed into her

phone, and she successfully utilized the procedure on over 100 occasions.

Nevertheless, on February 1, Bosley did not call Cargill. In fact, Bosley missed work

the entire month of February 2008, and she never used the call-in procedure.

The record shows that between February 1 and February 21, Bosley was

conscious, able to get out of bed, able to visit two healthcare providers, and able to

communicate coherently. She admitted in deposition testimony that her depression

improved and "became not incapacitating around February 15." Or, according to her

FMLA paperwork, her condition was no longer incapacitating by February 25.

The Honorable Robert W. Pratt, United States District Judge for the Southern 1

District of Iowa.

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On February 16, during Bosley's absence, David Clark replaced Crowell as

Bosley's supervisor. Clark was unaware of Bosley's mental health condition, and he

did not know why Bosley was absent. In late February, Clark inquired about Bosley

toCargill's nurses' office;WhitneyCrisswell, Cargill's FMLA coordinator; and Laura

Elliott, Cargill's human resources manger. No one had any information regarding her

absence. On February 27, Cargill terminated Bosley's employment on the basis that

she had three consecutive call-in violations between February 1 and 27. On March 3,

Bosley went to Cargill to pick up forms for approval of FMLA leave for her missed

work during the month of February. That day, Bosley learned of her termination from

Elliott.

Bosley filed suit in the district court, asserting entitlement and retaliation

claims under the FMLA. Cargill moved for summary judgment. The district court

granted summary judgment to Cargill on both claims, finding that Bosley did not

meet her obligation to provide notice to Cargill of her need for protected leave under

the FMLA. Bosley appeals, asking this court to reverse the district court's grant of

summary judgment and to remand.

II. Discussion

Bosley argues that the district court erred in finding that she failed to satisfy

her notice obligation under the FMLA. We "review[] a grant of summary judgment

de novo." Rynders v. Williams, 650 F.3d 1188, 1194 (8th Cir. 2011). "Summary

judgment is proper if, after viewing the evidence and drawing all reasonable

inferencesin the light most favorable to the nonmovant, no genuine issues of material

fact exist and the movant is entitled to judgment as a matter of law." Id. (quotation

and citation omitted). The jury is responsible for weighing the evidence and making

credibility determinations, not the court. Id. "'[T]he court should deny summary

judgment if there is sufficient evidence for a jury to return a verdict for the nonmoving party.'" Id. (quoting Young-Losee v. Graphic Packaging Int'l, Inc., 631 F.3d

909, 911 (8th Cir. 2011)).

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One of the purposes of the FMLA is "to entitle employees to take reasonable

leave for medical reasons." 29 U.S.C. § 2601(b)(2). The FMLA entitles an employee

to 12 workweeks of leave during any 12-month period if he or she has 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 any "illness, injury, impairment, or physical or mental condition that involves—(A)

inpatient care in a hospital, hospice, or residential medical care facility; or (B)

continuing treatment by a health care provider." 29 U.S.C. § 2611(11).

Bosley styles her claims against Cargill as "interference" and "retaliation"

claims. In Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996 (8th Cir. 2012),

we recognized that, although our cases sometimes describe claims brought under 29

U.S.C. § 2615(a)(1) as "interference" claims, "that terminology may not illuminate,

because all prohibited acts under § 2615(a) appear under the heading 'Interference

with rights.'" Id. at 1005 (recognizing FMLA entitlement, retaliation and

discrimination as three separate claims under the FMLA). For the sake of clarity,

what we formerly described as "interference" claims henceforth shall be called

"entitlement" claims. Id. Thus, Bosley asserts FMLA entitlement and retaliation

claims. In "an entitlement claim[,] an employee claims the denial of a benefit to which

he is entitled under the statute." Id. In a retaliation claim, on the other hand, an

employee claims that "the employer . . . t[ook] adverse action against the employee"

for "oppos[ing] any practice made unlawful under the FMLA." Id. at 1006.

A. Bosley's FMLA Entitlement Claim

"To state [an entitlement claim] under the FMLA, [Bosley] must have given

notice to [Cargill] of her need for FMLA leave." Clinkscale v. St. Therese of New

Hope, 701 F.3d 825, 827 (8th Cir. 2012).

The Department of Labor has issued regulations, pursuant to the authority

granted by § 2654 of the FMLA, governing the respective notice obligations of

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employers and employees. 29 C.F.R. § 825.303 (2008). At the relevant times, those

regulations provided, in pertinent part: 2

(a) When the approximate timing of the need for leave is not

foreseeable, an employee should give notice to the employer of the need

for FMLA leave as soon as practicable under the facts and

circumstances of the particular case. It is expected that an employee will

give notice to the employer within no more than one or two working

days of learning of the need for leave, except in extraordinary

circumstances where such notice is not feasible. In the case of a medical

emergency requiring leave because of an employee's own serious health

condition or to care for a family member with a serious health condition,

written advance notice pursuant to an employer's internal rules and

procedures may not be required when FMLA leave is involved.

(b) The employee should provide notice to the employer either in person

or by telephone, telegraph, facsimile ("fax") machine or other electronic

means. Notice may be given by the employee's spokesperson (e.g.,

spouse, adult family member or other responsible party) if the employee

is unable to do so personally. The employee need not expressly assert

rights under the FMLA or even mention the FMLA, but may only state

that leave is needed. The employer will be expected to obtain any

additional required information through informal means. The employee

or spokesperson will be expected to provide more information when it

can readily be accomplished as a practical matter, taking into

consideration the exigencies of the situation.

Id.

In Scobey v. Nucor Steel-Arkansas, 580 F.3d 781 (8th Cir. 2009), we

reiterated our rigorous notice standard for employees seeking to use

FMLA leave for absences. Employees have an affirmative duty to

The language of 29 C.F.R. § 825.303 was subsequently amended, effective

2

January 16, 2009.

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indicate both the need and the reason for the leave, and must let

employers know when they anticipate returning to their position.

Brown v. Kansas City Freightliner Sales, Inc., 617 F.3d 995, 997 (8th Cir. 2010)

(quotations, alteration, and citations omitted). "Before an employee can claimFMLA

protection, . . . the employee must put the statute in play—she must notify her

employer that she may need FMLA leave." Murphy v. FedEx Nat'l LTL, Inc., 618

F.3d 893, 900 (8th Cir. 2010) (citing Scobey, 580 F.3d at 787). "A claim under the

FMLA cannot succeed unless the plaintiff can show that he gave his employer

adequate and timely notice of his need for leave . . . ." Woods v. DaimlerChrysler

Corp., 409 F.3d 984, 991 (8th Cir. 2005).

1. Pilcher as Spokesperson

The regulatory language in place in February 2008 provided that "[n]otice may

be given by the employee's spokesperson (e.g., spouse, adult family member or other

responsible party) if the employee is unable to do so personally." 29 C.F.R. § 825.303

(2008). Bosley argues that Pilcher gave notice to Cargill of Bosley's absence from

work due to depression and, hence, of her need for FMLA leave. Bosley points to

Pilcher's deposition testimony regarding the conversation that Pilcher had with

Crowell on February 1. Pilcher testified as follows:

Q. Did [Bosley] tell you that she was depressed again?

A. Yeah.

Q. So did she tell you to tell Willie [Crowell]?

A. Yes.

Q. Okay. So did you tell Willie that day?

A. Yes.

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* * *

[Q.] Didn't you tell Willie that she had some medication issues?

A. I told Willie she was sick.

Q. But you didn't say anything that she was trying to get her

medication regulated?

A. I may have.

Q. Did you tell Willie that she was depressed again?

A. I don't know what days I told Willie she was depressed or wasn't

depressed.

Q. Okay. 

During that course that Tanya was off, did you ever tell Willie that she

was depressed again?

A. I told him she was sick. I don't know that I specifically said that

she was depressed.

Q. Is it possible that you said that and you just don't remember?

A. There is a chance I did say that, but I don't know if I did or if I

didn't.

Q. When you talked to Linda [Elliott], do you remember telling

Linda that you said—that you had told Willie that Tanya was

depressed?

A. I probably did, because that was a conversation she and I had,

yes. So I probably did say she was depressed.

Q. Okay. And do you remember telling Linda that you told Willie

that?

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A. Yeah.

Q. Okay. Was that not true when you told Linda that, or did you tell 

Willie that Tanya was depressed?

A. I don't know what days I told Willie, if she was depressed or

wasn't depressed.

It was probably—Depending on what she told me that day is what

I responded to Willie.

Q. Okay. So if Tanya said, "Hey, will you tell Willie I'm still

depressed," is that the conversation that you would have taken to

Willie?

A. I would have—Yeah, I would have just told Willie that.

Q. And so you would have said, "Willie, hey, Tanya is depressed

again. She's not coming in"?

A. Yeah.

But there are days I didn't tell him that, I know.

Q. And I'm not talking about the days that you didn't tell him. I'm

just trying to kind of figure out what you actually told Willie on

the days that you did.

And I understand you didn't tell him every single day.

A. Right. I didn't tell him every single day.

Q. But you did tell him a few times at least?

A. Yeah.

Q. And you told him that Tanya was depressed?

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A. I would say I did, but maybe I didn't.

I don't know. I really don't remember if I did or did not

specifically.

Q. Isthat just because it was a while ago and your memory has faded

or—

A. I don't remember.

Q. Okay.

If you told Linda that you told Willie that Tanya was depressed,

would you have lied to Linda during that interview?

A. No. If I felt I told him—that I said that, then I felt I told him I said

that. It's not something I would have said if I didn't tell him.

I know I said it, but I don't know when I said it.

Strangely, even Pilcher's affirmation that at some point she told Crowell that Bosley

was "depressed" is directly contradicted by a statement in her own affidavit.

Paragraph 7 of Pilcher's affidavit states: "I never informed Mr. Crowell or anyone else

at Cargill [that] Ms. Bosley was unable to come to work due to depression, anxiety,

or any particular medical condition. I only informed Mr. Crowell [that] Ms. Bosley

was not coming to work because she was sick."

Pilcher's equivocal and self-contradictory recollections of what she told

Crowell fail to show that Bosley gave notice through Pilcher. The only reasonable

inference that could be drawn in Bosley's favor is that Pilcher simply did not recall

whether she told Crowell that Bosley was depressed. "An assertion that a party does

not recall an event does not itself create a question of material fact about whether the

event did, in fact, occur." To v. U.S. Bancorp, 651 F.3d 888, 892 n.2 (8th Cir. 2011).

After reviewing the record, viewing the evidence in the light most favorable to

Bosley, and drawing all reasonable inferences in Bosley's favor, we hold that Bosley

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has provided insufficient evidence for a reasonable jury to find that she gave Cargill

adequate notice under the FMLA.

2. "Extraordinary Circumstances" Excuse

Bosley argues that Department of Labor regulations excuse the notice

requirement where "extraordinary circumstances" make the giving of such notice

unrealistic. The regulation provides, in pertinent part:

When the approximate timing of the need for leave is not foreseeable,

an employee should give notice to the employer of the need for FMLA

leave as soon as practicable under the facts and circumstances of the

particular case. It is expected that an employee will give notice to the

employer within no more than one or two working days of learning of

the need for leave, except in extraordinary circumstances where such

notice is not feasible.

29 C.F.R. § 825.303(a) (2008). Cargill responds that the regulation does not excuse

the notice requirement altogether in extraordinary circumstances; rather, it merely

modifies the general rule that "as soon as practicable" means "one or two working

days." Id. Cargill's interpretation is correct. The language of the regulation does not

completely excuse the notice requirement but only extends the allowable notice

period beyond two working days.

We must decide whether Bosley gave notice "as soon as practicable under the

facts and circumstances of[her] particular case." Id.Bosley did not make contact with

Cargill until March 3, 2008—32 days after she last utilized the call-in procedure.

Bosley admitted in her deposition that her depression "became not incapacitating

around February 15." Or, according to her FMLA paperwork, her condition was no

longer incapacitating by February 25. Because 2008 was a leap year, March 3 was

one full week beyond February 25. Thus, Bosley did not contact Cargill for at least

five full working days after her depression "became not incapacitating." Bosley states

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no facts constituting extraordinary circumstances to justify her delay in notifying

Cargill. As a matter of law, Bosley's notice requirement was not excused on the basis

of "extraordinary circumstances."

3. "Constructive Notice" Excuse

Bosley argues that her behavior could have placed Cargill on constructive

notice of her need for FMLA leave. Bosley relies principally on Byrne v. Avon

Products, Inc., 328 F.3d 379 (7th Cir. 2003), in arguing that the Department of Labor

regulations in effect at the time recognized constructive notice of the need for leave.

But as Cargill points out, we expressly rejected Byrne in Scobey. There, we voiced

our "serious doubts about the continuing validity of constructive notice in the FMLA

context." 580 F.3d at 788. As we explained:

The Seventh Circuit in Byrne v. Avon Prods. relied on a previous

version of 29 C.F.R. § 825.303(a), which stated that, when leave is

unforeseeable, "[i]t is expected that an employee will give notice to the

employer within no more than one or two working days of learning of

the need for leave, except in extraordinary circumstances where such

notice is not feasible." 328 F.3d at 382 (adding emphasis). Based on this

"extraordinary circumstances" exception, the court in Byrne concluded

that an employee's aberrant or unusual behavior could, in some cases, be

"itself notice that something had gone medically wrong, or perhaps

[excuse] notice . . . ." Id. at 381. However, the DOL has subsequently

deleted the sentence relied on by the court in Byrne and replaced it with

language that currently reads: "[i]t generally should be practicable for

the employee to provide notice of leave that is unforeseeable within the

time prescribed by the employer's usual and customary notice

requirements applicable to such leave." 29 C.F.R. § 825.303(a). Now

that the DOL has nullified the regulatory basis for the doctrine, we

decline to create a constructive-notice exception to an employee's

"affirmative duty," see Woods, 409 F.3d at 990–91, to notify his or her

employer of the need for leave that might be FMLA-qualifying.

Id. at 788 (alterations in original) (footnotes omitted).

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Viewing the evidence in the light most favorable to Bosley, and drawing all

reasonable inferences in her favor, there are no genuine issues of material fact as to

her failure to satisfy her notice obligation under the FMLA. The district court did not

err in dismissing Bosley's entitlement claim.

B. Bosley's FMLA Retaliation Claim

Bosley lacks any "direct evidence ofretaliation." Phillips v. Mathews, 547 F.3d

905, 912 (8th Cir. 2008). As a result, "we analyze her FMLA retaliation claim under

the McDonnell Douglas burden-shifting framework." Id.

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[Bosley] must first establish a prima facie case of retaliation, which

requires her to show that she exercised rights afforded by the [FMLA],

that she suffered an adverse employment action, and that there was a

causal connection between her exercise of rights and the adverse

employment action. 

Id. (quotation and citation omitted).

An employee's meeting his or her notice obligation to an employer of a need

for FMLA leave is essential to a FMLA retaliation claim. See, e.g., Wierman v.

Casey's Gen. Stores, 638 F.3d 984, 1000 (8th Cir. 2011) ("In order to benefit fromthe

protections of the statute, an employee must provide her employer with enough

information to show that she may need FMLA leave." (quotation, alterations, and

citation omitted)). Here, Bosley notified Cargill that she would seek FMLA leave

only after Cargill had terminated her employment. Because Bosley did not meet her

FMLA notice obligation to Cargill while employed, her termination could not have

been retaliation. There is no genuine issue of material fact regarding Bosley's failure

to meet her notice obligation, so Bosley fails to make a prima facie case for FMLA

retaliation. The district court did not err in dismissing her claim.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–06 (1973). 3

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III. Conclusion

Because we conclude that the district court did not err in dismissing Bosley's

claims, we affirm.

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