* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### FEB 24 2005 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DEBBIE TAYLOR, Plaintiff-Appellant,

v. SMITH’S FOOD & DRUG CENTERS, INC., Defendant-Appellee. No. 04-4163 (D.C. No. 2:03-CV-124-BSJ)

(Utah)



### ORDER AND JUDGMENT *

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.
Debbie Taylor filed an action against Smith’s Food & Drug Centers, Inc. (Smith’s), alleging violations of the Family and Me dical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601. The district court gran ted Smith’s motion for-2-

summary judgment, concluding: (1) Ms. Taylor did no t provide proper notice for leave under the FMLA and (2) Smith’s met its burdenof proving Ms. Taylor would have been dismissed regardless of her requestfor an FMLA leave because she failed to comply with Smith’s absentee policy. We affirm. Ms. Taylor worked as a cake decorator for Smith’s. After taking a period of approved vacation time, Ms. Taylor failed to rep ort back to work. She spoke with her immediate supervisor, Ms. Watts, and was p ermitted to take some additional days off, and was subsequently informed she needed to bring in a doctor’s note excusing her absences. Aplt. App. 47 -48, 68-69. Ms. Taylor made no further contact with her workplace for two weeks , id. at 49, in contravention with Smith’s “no call/no show” policy, which dictat es that employees will be deemed to have voluntarily resigned from their posi tions if they miss work for two consecutive work days without calling their dep artment manager or supervisor. Id. at 63. As a result of Ms. Taylor’s lack of compli ance with the policy, Smith’s initiated termination proceedings a gainst her, effective the last day she had been excused from work. Id. at 85-86. On the same day that Ms. Taylor’s termination received final approval from t he company’s human resource director, Ms. Taylor’s daughter called Smith’s to r equest FMLA forms on behalf of her mother. Id. at 49, 86. Ms. Taylor alleges, in part, that Smit h’s termination of her employment interfered with her right to medi cal leave under the FMLA.-3-

As necessary, more specific facts will be discussedin connection with the issues. Whether Smith’s was entitled to summary judgment is a question of law we review de novo

. Croy v. Cobe Labs., Inc. , 345 F.3d 1199, 1201 (10th Cir. 2003). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material f act and that the moving party is entitled to a judgment as a matter of law.” F ED
. R. C IV
. P. 56(c). In applying this standard, “[a]ll inferences arising from the record before us must be drawn and indulged in favor of the [nonmovant].” Stinnett v. Safeway, Inc. , 337 F.3d 1213, 1216 (10th Cir. 2003) (internal quotations omitted)

. “Credibility determinations [and] the weighing of t he evidence . . . are jury functions, not those of a judge.” Id . (citation omitted). Nevertheless, “the nonmovant must establish, at a minimum, ‘an inferen ce of the existence of each element essential to [her] case.’” Croy , 345 F.3d at 1201 (quoting Hulsey v. Kmart, Inc. , 43 F.3d 555, 557 (10th Cir. 1994)). “Unsubstanti ated allegations carry no probative weight in summary judgment proce edings.” Phillips v. Calhoun , 956 F.2d 949, 950 n.3 (10th Cir. 1992). To defeat a motion for summary judgment, evidence, including testimony, mu st be based on more than mere speculation, conjecture, or surmise. See Rice v. United States , 166 F.3d 1088, 1092 (10th Cir. 1999); Allen v. Muskogee , 119 F.3d 837, 846 (10th Cir.-4-

1997). Ms. Taylor’s substantive interference claim under t he FMLA fails as a matter of law. If an employer interferes with an e mployee’s FMLA-created right to a medical leave, it has violated the FMLA regard less of the employer’s intent. Smith v. Diffee Ford-Lincoln-Mercury, Inc. , 298 F.3d 955, 960 (10th Cir. 2002). But an employee may nevertheless “be dismissed, pre venting her from exercising her statutory right to FMLA leave . . . if the dism issal would have occurred regardless of the employee’s request for or taking of FMLA leave.” Id. at 961. It is clear that the FMLA does not apply to the fac ts of this case. In Renaud v. Wyoming Dept. of Family Serv’s , 203 F.3d 723 (10th Cir. 2000), the plaintiff, who was on FMLA leave for treatment of a lcoholism, was terminated for having been drunk while on duty. Id. at 732. The plaintiff sued under the FMLA, claiming the defendant-employer had interfere d with his FMLA rights. In affirming judgment on a jury verdict in the defenda nt’s favor, we held that an employee who requests or is on FMLA leave has “no g reater protection against his or her employment being terminated for reasons not related to his or her FMLA request or leave than he or she did before sub mitting the request.” Id

. The court concluded that an employee may be terminated if the action would have been taken in the absence of the FMLA request or le ave. Id .; see also Gunnell v. Utah Valley State Coll. , 152 F.3d 1253, 1261-62 (10th Cir. 1998) (affirmin g a-5-

grant of summary judgment in favor of the defendantin an FMLA interference claim). We recently held, in a case similar to the one befo re us, that a plaintiff who would have been dismissed for failure to comply with the employer’s notification of absence policy regardless of her request for FML A leave, could not prevail on an interference claim under the FMLA. Bones v. Honeywell Int’l, Inc. , 366 F.3d 869, 878 (10th Cir. 2004) (plaintiff’s request for an FMLA leave does not shelter her from the obligation, which is the same as that of any other employee, to comply with defendant’s employment policies, includ ing its absence policy). In
Bones , it was uncontroverted that the plaintiff did not comply with her employer’s absence policy on the dates for which she was termi nated. Id . The plaintiff admitted she never notified her supervisor about he r absences. Id . Accordingly, the plaintiff’s interference claim failed because h er employer successfully established that she would have been dismissed regardless of her request for an FMLA leave. Id . at 877. We held that a reason for dismissal unre lated to a “request for an FMLA leave will not support recovery under an interference theory.” Id

. It is undisputed Ms. Taylor failed to comply with S mith’s no call/no show policy. Ms. Taylor had worked for Smith’s more than sixteen years. Aplt. App. at 139. She testified she had received a copy of t he no call/no show policy1 On appeal, Ms. Taylor claims she was lead to believ e that she had an

“open-ended” leave of absence and was unaware that Ms. Watts had only approved her leave through July 28. However, Ms. T aylor conceded, on at least three separate occasions in her Opposition Motion t o Summary Judgment, that she was only excused from work from July 22 though July28, 2002. Aplt. App. at 94 (“Ms. Watts approved Ms. Taylor’s time off through July 27th or 28th”); id . at 102 (“This request for time off would have covered the period through July 28, 2002”); id . at 104 (“Ms. Taylor should have been off work on an excused absence basis from July 22-28, 2002. That was the week she had requested . . . .”). Even in her appellate brief, Ms. Taylor admits “Ms. Watt s approved Ms. Taylor’s time off through July 27th or 28th,” and “[a]t any time before August 5, 2002, Smith’s could possibly have fired Ms. Taylor.” Aplt. Br. at 28, 38. -6- contained in the employee handbook and understood t he policy. Id . at 40-41. Ms. Taylor was scheduled to work on Monday, July 22, 20 02. Id . at 68, 74. She did not show up for work and her immediate supervisor, Ms. Watts, left her a message on her home answering machine inquiring about her u nexcused absence. Id . at 46, 68. On that same evening, Ms. Taylor phoned Ms . Watts and asked her for the “rest of the week off.” Id . at 47-48, 68-69. Ms. Watts gave her permission t o do so, but informed Ms. Taylor she would need to re contact Ms. Watts about returning to work, and that she would need to bring in a doctor’s note for her additional missed days. Id. at 69. Ms. Watts subsequently scheduled Ms. Taylo r to work on July 28, 2002. Id. 1 According to her deposition testimony, Ms. Taylor m ade no contact whatsoever with Smith’s for fourteen days (July 22 to August 5, 2002). Id . at 49. Ms. Taylor’s period of no communication with her employer included eight days-7-

between the time Ms. Taylor’s approved leave ended on July 28, and when her daughter called the store director on August 5 to r equest FMLA forms. Id . On August 3, the store director initiated Ms. Taylor’ s termination because she had missed multiple shifts the week of July 28 through August 3 without notifying Smith’s, in violation of the no call/no show policy

. Id . at 85; Aplt. Br. at 13. Ms. Taylor’s termination was approved by Smith’s Corpor ate Human Resources Director on August 5, 2002, and was effective July 27, 2002, the last day Ms. Taylor was excused from work. Aplt. App. at 86. Ms. Taylor argues that there is an issue of fact pr ecluding summary judgment concerning whether her resignation, pursuant to her failure to comply with Smith’s no call/no show policy, was effective before or after the August 5, 2002, communication from her daughter to Smith’s re questing FMLA forms. We disagree. Ms. Taylor’s request for FMLA leave on A ugust 5, whether before or after her effective termination, does not exonerate her from multiple violations of the no call/no show policy, which established an im mediate basis for her discharge. Bones , 366 F.3d at 878 (plaintiff’s “request for an FMLAleave does not shelter her from the obligation, which is the s ame as any other . . . employee, to comply with [the employer’s] . . . policies, inc luding its absence policy”). Ms. Taylor concedes that “[a]t any time before August 5 , 2002, Smith’s could possibly have fired [her].” Aplt. Br. at 38. Smith’s has d emonstrated it would have-8-

terminated Ms. Taylor regardless of her request forleave. Indeed, Smith’s had already begun to process Ms. Taylor’s termination two days prior to her request for the FMLA forms. Renaud and Bones make clear that even if an employee has an entitlement to FMLA leave, if an employer’s deci sion to terminate an employee is unrelated to the FMLA request, there is no claim for interference. No reasonable juror could conclude from the above e vidence that Ms. Taylor’s termination was related to her request for an FMLA leave. The district court correctly granted summary judgment to Smith’s on Ms . Taylor’s FMLA claim. The district court also determined Ms. Taylor faile d to provide proper notice for leave under the FMLA. We need not addre ss the notice issue here, however, because even if Ms. Taylor were to prevail on that issue, the grant of summary judgment to Smith’s would still stand on th e alternative ground that Ms. Taylor was terminated because she did not comply wi th her employer’s absence policy. See Bones , 366 F.3d at 877-78 (where plaintiff cannot succee d as a matter of law on interference claim, court need not addres s question of notice). For the reasons stated above, we AFFIRM the district court’s grant of summary judgment to Smith’s on Ms. Taylor’s FLMA cl aim.
ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge