UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

QUINN SMITH, Plaintiff–Appellant,

v. MICHAEL W. WYNNE, Secretary, Department of the Air Force, Defendant–Appellee. No. 11-6195 (D.C. No. 5:07-CV-00598-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, McKAY and LUCERO , Circuit Judges.

Quinn Smith, a former civilian employee of the Department of the Air Force, asserts that her termination was contrary to the Family and Medical Leave Act (“FMLA”) and constituted unlawful gender and race discrimina tion under Title VII

* After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 20, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - of the Civil Rights Act. We disagree, and, therefore, affirm the district court’s decision denying he r claims.
I Smith is an African-American woman. In July 2000, she began working as a computer engineer at Tinker Air Force Ba se. On March 5, 2004, Smith filed a worker’s compensation claim alleging an “on- the-job injury” due to months of “stress and pressure” from Michael Smith (“Supervisor Smith”). Three days later, plaintiff asked Supervisor Smith if sh e could take three weeks ofleave to address her jobrelated stress. Supervisor Sm ith agreed. He permitted he r to take a combination of annual and sick leave for the remainder of th e month. Her leave began on March 10. By March 31, 2004, Smith had exhausted both her annual and sick leave. She phoned Supervisor Smith to check in with him as previously a rranged. The parties disagree about the substance of this conversation. According to the plaintiff, she told Supervisor Smith that she planned on taki ng more time, and she requested leave without pay (LWOP), which Supervisor Smith approved. Supervisor Smith asserts that he did not approve LWOP for her, and that he warned her she was “absent without leave” or AWOL. The next day, Supervisor Smith sent Pa m Moulin in human resources an email stating that plaintiff had told him “she wa s planning to be AWOL for a while.” In this email, he also stated “I either need her or the pos ition she is on because I have a- 3 - small staff here . . . what are my options?” Moulin resp onded that human resources would not take action until Smith had been AW OL for ten days. Supervisor Smith annotated plaintiff as AWOL in the leave database. On April 1, 2004, plaintiff signed in remotely to the leave database and noticed that she was marked as AWOL. She called Superv isor Smith and told him that she had requested LWOP. The parties dispute whet her he then informed Smith that her request for LWOP was denied. On Apr il 8, 2004, Supervisor Smith removed the AWOL designation from th e leave database. On April 13, 2004, Supervisor Smith ex changed emails with Moulin in which he expressed a desire to begin the proce ss of terminating plaintiff’s employment. Moulin asked him if he had heard anythi ng from Smith since their March 31, 2004 check-in phone conversation. He responded that he had not. Plaintiff contends this response was mendacious because she had sp oken with Supervisor Smith on April 1 concerning her desire to be on LWOP. 1 On April 14, 2004, plaintiff sent Superv isor Smith a letter st ating that she had requested LWOP on March 31, 2004, and that he had a pproved her request. Four days later, however, Supervis or Smith sent plaintiff a me morandum advising her that “[a] review of your attendanc e record indicates that yo u have not reported for duty

1 On May 3, 2004, Supervisor Smith repe ated to human resources that he had not heard from or talked to plaintiff sin ce she was designated AWOL on April 1.- 4 - since 1 April 2004. No word has been heard from you or from anyone on your behalf. No leave was request ed and none granted.” The memo went on to advise plaintif f that if she was requesting special restrictions due to a medi cal condition, she should prov ide information concerning the condition from her doctor. Supervisor Smith attached a Work Restriction Evaluation form for that purpose. The memo also warned plaintif f that “if you fail to report for duty on a regular full-time basis or fail to furnish sufficient medical evidence to cover your absences, action may be taken to pr opose your separation from Air Force employment for excessive absence.” (emphasis added.) On April 21, plaintiff wr ote to Supervisor Smith and to his supervisors, explaining that she had requested LWOP. On April 29, she submitted her medical records to Kathryn Reinhardt, an em ployee who was processing her worker’s compensation claim, and had previously requested medical documentation from Smith in connection with the claim. Th e medical records Smith submitted included a “recommendations for duty” form dated March 5, 2004, indicating that she was able to “[r]eturn to work without restrictions .” In addition, Smith attached a note requesting that Reinhardt “Please do not rele ase” the records to S upervisor Smith or to her second-level supervis or. Acting on Smith’s instru ctions, Reinhardt did not provide Smith’s medical records to the of ficials who would subsequently terminate her employment.- 5 - On May 19, 2004, the Air Force issued to Smith a notice of proposed removal from government service. The notice ci ted Smith’s “unauthorized absence and failure to request leave according to esta blished procedures.” It further advised Smith of her right to reply within twenty da ys. Smith never replied to the notice. On July 8, 2004, the Air Force removed he r from federal service for unauthorized absences. After exhausting her remedies with the Equal Employment Opportunity Commission (“EEOC”) and obtaining a fina l agency decision from the Air Force Review Boards Agency, Smith filed an a ppeal with the Merit Systems Protection Board (“MSPB”). As a defense to her term ination, Smith argued that the Air Force had wrongfully denied her requested leave under the FMLA. Following a hearing, an administrative law judge (“ ALJ”) concluded that the Ai r Force did not violate the FMLA, for two reasons. He explained that Smith did not have a serious health condition that prevented her from performing one or more of the essen tial functions of her position. Her medical records contrarily demonstr ate that she was generally healthy and able to work. Second, even assuming arguendo that she had a serious health condition, she repeated ly ignored the agency’s legitimate requests for a written me dical certification. The ALJ also rejected Smith’s claims that the Air Force had discriminated against her based on her race, gender, and disability an d had retaliated agai nst her for filing a complaint with the EEOC. The ALJ’s decision became final agency action when Smith did not request further board review. 5 U.S.C. § 7701(e).- 6 - This suit followed. The district cour t upheld the MSPB’s decision regarding Smith’s termination, and, exercising de n ovo review, granted summary judgment in favor of the Air Force on her discrimi nation claims. Smith now appeals both decisions of the district court. 2
II A This is a “mixed” case, meaning that Smith presen ted both discrimination and non-discrimination claims to the MSPB and the MSPB issued a d ecision resolving all of her claims. Williams v. Rice, 983 F.2d 177, 179 (10th Cir. 1993). Concerning the discrimination claims, we review the distri ct court’s grant of summary judgment de novo, applying the same standard as the di strict court. Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011). Summary judgment is appropriate if the Air Force “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Ci v. P. 56(a). In conducting the analysis, we “view[ ] all fact s [and evidence] in the light most favorable to the party opposing summary judgment.” Grynberg v. Total, S.A., 538 F.3d 1336, 1346 (10th Cir. 2008).

2 In her district court complaint, plai ntiff requested review of the MSPB’s decision on her EEOC retaliation claim. It does not appear the district court specifically addressed this cl aim, and plaintiff has not presented argument concerning it on appeal. Accordingly, we do not further address this claim.- 7 - By contrast, we review directly th e MSPB’s disposition of Smith’s FMLA defense, considering the agen cy decision and applying to it the more deferential, statutory standard: A MSPB decision must be upheld unle ss the reviewing court determines that it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtai ned without procedures required by law, rule, or regulation having b een followed; or (3) unsupported by substantial evidence. Williams, 983 F.2d at 180 (quoting 5 U.S.C. § 7703(c)). In reviewing the MSPB’s decision, this court “may not substitute its judgment for that of the MSPB. Under the arbitrary and capricious standard the MSPB’s decision needs only to have a rational basis in law.” Id. (citati ons and quotati ons omitted).
B Smith argues that the Air Force unlawfully interfered with her assertion of her FMLA rights and retaliated against her for invoking these rights, and therefore, the MSPB’s decision affirming her removal was arbitrary, capricious, and contrary to law. 3 Under the FMLA, an employee is ent itled to “a total of 12 administrative workweeks of leave during any 12-month peri od . . . [b]ecause of a serious health condition.” 5 U.S.C. § 6382(a)(1)(D).

3 The ALJ found that Smith had “not demonstrated that the [MSPB] treats [FMLA] violations as fitting within the sc ope of the harmful error defense.” But he nevertheless considered Smith’s FMLA allega tions as an affirmative defense to her termination. We also assume, for purposes of this decision, that Smith’s allegations provide such an affi rmative defense.- 8 - The Air Force responds with two threshol d arguments. It argues, first, that plaintiff waived her FMLA interference an d retaliation claims by failing to present them to the MSPB. Second, the Air Force contends that the United States has not waived its sovereign immunity for frees tanding FMLA retaliation and interference claims brought by federal em ployees like Smith, and that a federal court therefore lacks jurisdiction to entertai n them. See, e.g., Russell v. U.S. Dep’t of the Army, 191 F.3d 1016, 1018-19 (9th Cir. 1999).
1 We need not delve deep ly into the Air Force’s waiver and jurisdictional challenges, because they are based on an unnecessarily narrow view of Smith’s assertion of FMLA rights in these proceed ings. The ALJ who reached the MSPB’s decision was broadly charged with dete rmining whether Smith appropriately requested leave and whether her removal wa s “appropriate,” and he considered her FMLA allegations as a defense to her te rmination. Althou gh Smith’s appellate briefing is not entirely clear on this point, we do not understand he r arguments to be an attempt to assert freestanding FMLA interference and retaliatory conduct claims against the Air Force. Rath er, plaintiff continues to as sert her FMLA rights as an affirmative defense to her termination. Vi ewed in this way, Smith neither waived freestanding FMLA “claims” by failing to present them before the MSPB, nor attempted to assert freesta nding FMLA damage claims giving rise to sovereign immunity concerns.- 9 - 2 We must affirm the MSPB’s decision not withstanding either of Smith’s FMLA theories. To prevail on an FMLA interference cl aim, an “employee must demonstrate by a preponderance of evidence . . . [an] entitl ement to the disputed leave.” Smith v. Diffee Ford-Lincoln Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002). Smith must show that she had a “serious health cond ition”: “an illness, in jury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) c ontinuing treatment by a health care provider.” 5 U.S.C. § 6381(5). However, the only evidence before us pertinent to Smith’s health are the record s she submitted to Reinhard t. Having reviewed this evidence, we are compelled to agree with the ALJ’s c onclusion. The records in question include only three or four outpatient visits fo r treatment of anxiety, depression, and situational stress. Most significantly, they include a recommendation dated March 5, 2004 that plaint iff be “returned to work w ithout restrictions.” Thus, the ALJ’s conclusion that plai ntiff failed to demonstrate th at she had a serious health condition is supported by s ubstantial evidence. Because Smith has failed to meet her bur den, we need not decide whether to adopt the Sixth Circuit’s rule in Sorre ll v. Rinker Materials Corp., 395 F.3d 332 (6th Cir. 2005) as she urge s. See id. at 337 (holding th at an employer cannot assert problems with a medical cert ification as grounds for de nying FMLA leave if the employer has never notified the employee of the problem). Relevant here is the- 10 - evidence in the record, not whether Smith adequately documented her need for leave to the Air Force. 3 We next turn to Smith’s retaliation argum ent. As an initial matter, we are not convinced that Smith has an FMLA reta liation claim—rather than simply an interference claim—under our case law. Se e, e.g., Valdez v. McGill, 462 F. App’x 814, 822 (10th Cir. 2012) ( unpublished). An FMLA inte rference claim is based on an employer’s alleged denial of an empl oyee’s FMLA rights, including a wrongful refusal to grant FMLA leav e or to reinstate the empl oyee following such leave. Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287-88 (10th Cir. 2007). In contrast, a retaliation claim typically accrues when an “employee successfully took FMLA leave, was restored to her prio r employment status, and was adversely affected by an employment act ion based on incidents post-da ting her return to work.” Id. Even assuming that Smith could bring a retaliation claim, it must fail for the same reasons as her interference claim: the record does not support Smith’s contention that she had a serious medical condition triggering the protections of the
FMLA. 4

4 This is not to suggest that every employee seeking to prevail on a retaliation theory must affirmatively esta blish her statutory eligibility fo r leave. For instance, an employee fired immediately upon requesti ng protected leave may have a valid retaliation cause of action, re gardless of her ultimate e ligibility. In the present scenario, however, the conduct in question is Smith’s taking of an unapproved leave of absence. Accordingly, Smith must demonstrate th at she was entitled to leave (continued)- 11 - C Plaintiff also seeks review of the district court’s or der granting summary judgment to the Air Force on her race and gender discrimination claims. She relies on circumstantial evidence of discriminati on, using the familiar McDonnell Douglas v. Green, 411 U.S. 792, 802-05 (1973), framework to establish her claim: This three-step analysis first require s the plaintiff to prove a prima facie case of discrimination. If plaintiff establishes a prima facie case, the burden of going forward shifts to th e defendant to produce a legitimate, nondiscriminatory reason for its acti ons. If the defendant does so, the plaintiff must either show that his race, age, gender, or other illegal consideration was a determinative f actor in the defendant’s employment decision, or show that the defenda nt’s explanation for its action was merely pretext. Adamson v. Multi Community Diversifie d Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008) (quotation and citations omitted). The Air Force concedes that Smith me t her prima facie bur den because, as an African-American and a woman, she belongs to two protected classes, and she suffered an adverse employment action. Li kewise, the Air Force met its burden of production by presenting evidence that it legitimately terminated Smith’s employment for her failure to submit medical documentation to excuse her prolonged unauthorized absence. We therefore turn to the third step of the McDonnell Douglas

under the FMLA in order to state a prima fa cie case, see Metzler v. Fed. Home Loan Bank, 464 F.3d 1164, 1171 (10t h Cir. 2006) (requiring “pro tected activity”), and to overcome the Air Force’s assertion that its reasons for termin ating her were not illegitimate. Id.- 12 - analysis: whether Smith dem onstrated that the Air Force’ s explanation for its actions was pretextual. Viewing the evidence in the light most favorable to Smith, as we must, there appears to be a genuine f actual dispute concerning whet her she initially requested and was provisionally granted LWOP rather than AWOL. Smith also points to evidence of procedural irregul arities in Supervisor Smith’s dealings with the human resources. She complains th at Supervisor Smith lied to Moulin when she asked him on April 13, 2004, whether he had heard a nything from the plaintiff, and again on May 3, 2004, when Supervisor Smith stated to Moulin that he had “not heard from or talked to [plaintiff] since she was placed on AWOL”—ev en though he talked to Smith on April 1 after he put her on AWOL, not before. In genera l, evidence of such “procedural irregularities,” including “d eviations from normal company procedure,” support of finding of pretext. Garrett v. Hewlet t-Packard, 305 F.3d 1210, 1219-20 (10th Cir. 2002). But despite suggesting that Supervisor Smith was adverse to her interests, none of the instances to which Smith points demonstrate pretext going directly to the Air Force’s decision to terminate her employm ent. Regardless of any early evasion, by April 18, 2004, Supervisor Smith had made it clear that plain tiff could take LWOP for a medical condition, if she satisfied and returned the Wo rk Restriction Evaluation. And on May 19, 2004, the Air Force again wa rned Smith that sh e was in danger of- 13 - being removed from employment because “[ l]eave has not been requested and medical documentation has not been provided.” Smith argues that Supervisor Smith “knew” she “submitted medical records,” to Reinhardt, but purposefully ignored he r attempt at documen tation. But Smith points only to evidence suggesting otherwise— i.e. Reinhardt’s stat ement that she did not advise Supervisor Sm ith about the medical docum entation. Thus, Smith has simply failed to cast doubt on the reason assert ed for her termination: her failure to provide authorization for her extended absence from work.
III The judgment of the district court is AFFIRMED

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Entered for the Court

Carlos F. Lucero Circuit Judge