UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BILLY E. ROBINSON,
Plaintiff-Appellant,
v. No. 95-3067
OVERNITE TRANSPORTATION COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CA-95-300-7-3)
Argued: January 27, 1997
Decided: April 9, 1997
Before WILKINSON, Chief Judge, and
HAMILTON and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Edwin Lake Turnage, Travelers Rest, South Carolina, for
Appellant. Jay Lloyd Grytdahl, BLAKENEY & ALEXANDER,
Charlotte, North Carolina, for Appellee. ON BRIEF: Dana C. Mitch-
ell, III, MITCHELL, BOUTON, DUGGAN, YOKEL, MCCALL &
CHILDS, Greenville, South Carolina, for Appellant. W. T. Cranfill,
Jr., BLAKENEY & ALEXANDER, Charlotte, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
This dispute arises out of the termination of appellant Billy Robin-
son's employment with appellee Overnite Transportation Company
(Overnite) on January 17, 1994. Robinson filed suit alleging claims
for retaliatory discharge in violation of South Carolina Code § 41-1-
80, breach of contract, breach of implied contract coupled with fraud,
and violations of the Family and Medical Leave Act (FMLA), 29
U.S.C. §§ 2601-2654. The district court granted Overnite's motion for
summary judgment as to Robinson's breach of contract claims and
entered judgment in favor of Overnite following a bench trial on Rob-
inson's retaliatory discharge and FMLA claims. Finding no error, we
affirm.
I.
On December 3, 1988, Robinson completed an application for
employment with Overnite, a trucking company engaged in the inter-
state transportation of freight, at Overnite's Gaffney, South Carolina
facility. Included in the employment application was a disclaimer,
providing that if the applicant was employed by Overnite, either he
or Overnite could terminate his employment at any time and no writ-
ings contained in the application, employee handbook, or any other
communications created a contract of employment for a definite or
indefinite term. As part of the application process, Robinson disclosed
to C.H. Nolley (Nolley), Overnite's Service Center Manager, that he
had previously filed a workers' compensation claim while with a for-
mer employer.
On December 12, 1988, Nolley hired Robinson as a truck driver for
Overnite. As a new employee, Overnite issued Robinson a copy of its
Safety and Operating Rules and Regulations, which contained, imme-
diately after the table of contents, a disclaimer identical in substance
to that contained in the employment application.
2
In January 1993, Overnite issued its employees, including Robin-
son, a revised edition of its Employee Handbook (Handbook). Several
provisions of the Handbook are pertinent to this appeal. First, the
Handbook contained a disclaimer on page three under the heading
"Forward" and just after the "Welcome" section, providing explicitly
that statements in the Handbook were guidelines only and that an
employment-at-will relationship existed between Overnite and its
employees, a relationship that was not altered by anything contained
in the Handbook.
The Handbook also contained a subsection on accident rules,
including procedures to be followed in the event of an accident and
possible punishments. Specifically, the Handbook provided that any
driver involved in three preventable accidents within a twelve-month
period would be terminated and that even one accident, depending on
the circumstances and severity, could result in dismissal. Also
included in the Handbook was a "Driver Appeal Policy," providing
that any driver terminated for violations of Overnite safety regulations
may appeal his termination through a detailed appeal process.
Finally, the Handbook contained a section on employee conduct. In
this section, the Handbook provided that insubordination, or failure to
follow instructions, was one of several behaviors that would subject
an employee to disciplinary action, including dismissal.
On August 23, 1993, following the enactment of the FMLA,1 Over-
nite issued a revised Family and Medical Leave Policy. Overnite
posted a notice of the FMLA on its company bulletin boards and
included it in the revised employee handbook distributed in June
1994, following the effective date of the FMLA. In addition, informa-
tion about the FMLA was disseminated to employees in notices dis-
tributed with their paychecks, and the FMLA was discussed at
employee meetings.
While he was employed with Overnite, Robinson filed two work-
ers' compensation claims. His first workers' compensation claim
arose out of an injury that occurred in 1991. As a result of this injury,
_________________________________________________________________
1 The FMLA became effective on August 5, 1993. See Family and
Medical Leave Act, Pub. L. No. 103-3, 107 Stat. 6.
3
Robinson missed approximately thirty-five weeks of work and was
paid medical and disability benefits. According to Robinson, he was
satisfied and pleased with Overnite's handling of his first workers'
compensation claim.
Robinson's second workers' compensation claim stemmed from an
accident that occurred on December 22, 1993. At approximately 4:00
a.m., Robinson and his co-driver, Bobby Hawkins, were returning to
Gaffney from Dallas, Texas, when Robinson fell asleep at the wheel,
causing an accident. After veering off the shoulder of the road, the
truck turned over on its side and came to rest back in the middle of
the highway. Robinson admitted his fault in causing the accident.
Hawkins was not injured in the accident, but Robinson suffered a
cut on his elbow and what would later be discovered to be a fractured
sternum, fractured ribs, and a fractured vertebrae. After being treated
for the cut on his elbow at a local hospital and released, Robinson and
Hawkins returned to South Carolina on an airplane. Upon their return,
the appropriate workers' compensation forms were completed and
submitted.
On December 23, 1993, the day after the accident, Robinson
sought medical treatment from Dr. A.R. Moss in Gaffney, South Car-
olina, Overnite's company doctor. Dr. Moss treated Robinson,
decided to keep him out of work until December 29, 1993, and sched-
uled a follow-up visit for that date.
On December 29, 1993, Dr. Moss saw Robinson again and placed
him on administrative light duty for up to four hours per day until
January 4, 1994. Overnite complied with Dr. Moss's recommendation
and assigned Robinson to administrative duties. On January 4, 1994,
Robinson visited Dr. Moss for the third time and was cleared to return
to driving on January 9, 1994.
During the time that Robinson was on administrative light duty, he
continued to experience pain in his chest and back, which did not
improve. As a result, Robinson became frustrated with the treatment
he received from Dr. Moss and complained to Nolley about what he
believed was inadequate care.
4
On January 5 or 6, 1994, Nolley met with Robinson about the
impact of his accident on his employment with Overnite. Because
Nolley considered Robinson's accident to be particularly serious, he
had discussed Robinson's possible discharge with Overnite's home
office. In light of Robinson's previous good driving record, however,
Nolley determined that he would retain Robinson but place him on
probation. When he met with Robinson, Nolley informed him of his
decision and explained to Robinson that any further violation of the
company's safety rules and regulations within a twelve-month period
would lead to his termination. Robinson did not voice any objections
about this probation period, and these restrictions were memorialized
in a Corrective Action Report (CAR) according to Overnite's policy.
On January 10, 1994, Robinson saw Dr. Moss for the last time
while employed at Overnite. Dr. Moss completed another evaluation
form, sending Robinson for a second opinion with an orthopedic sur-
geon because of his continuing back pain. In addition, Dr. Moss
imposed a 25-pound lifting restriction, noted Robinson's continued
complaints of back pain, and prohibited Robinson from operating
heavy equipment. Finally, Dr. Moss noted on the evaluation form that
Robinson had bronchitis which was aggravating his chest wall pain.
When Robinson returned to Overnite, he gave the evaluation form
to Mark Patterson, the Line Haul Manager, who subsequently called
Dr. Moss and confirmed that Robinson was cleared to return to driv-
ing. Robinson was then placed back on the driving schedule begin-
ning Monday, January 17, 1994.
After learning that he had been placed back on the driving sched-
ule, Robinson complained to Patterson that he would not be able to
drive a truck beginning the following week because of chest pain.
Relying on the notation in Dr. Moss's report that Robinson had bron-
chitis, Patterson told Robinson that workers' compensation would not
cover bronchitis and recommended to Robinson that he file a casual
sick pay application, according to Overnite's casual sick pay policy
covering minor illnesses. Robinson then completed a casual sick pay
application and took two days off work. In his sick pay application,
Robinson stated that he was requesting time off for bronchitis and a
cough and that the condition was not the result of an accident.
5
On January 14, 1994, Robinson came to Overnite to pick up a
blank evaluation form for his appointment that day with Dr. Richard
Gardner, the orthopedic surgeon to whom he had been referred by Dr.
Moss. At that time, Patterson presented Robinson with the CAR and
told Robinson that he needed to read and sign it. Robinson stated that
he did not want to sign the CAR until his wife had reviewed it, and
Patterson agreed. After Robinson had left for his appointment with
Dr. Gardner, Patterson spoke with the personnel office at Overnite
and was reminded that employees were required to sign a CAR on the
same day they received one as an acknowledgment that they had
notice of its terms.
Later that afternoon, Robinson returned to Overnite following his
appointment with Dr. Gardner. Upon his return, Robinson met with
Patterson and handed him an evaluation form completed by Dr. Gard-
ner, in which Dr. Gardner restricted Robinson from driving and
advised that Robinson was not at "maximum medical improvement."2
(J.A. 611). When Robinson gave Patterson the form, Patterson told
Robinson that he needed to sign the CAR that day. Robinson refused
to sign the CAR and was immediately suspended. On the following
Monday, January 17, 1994, Nolley called Robinson and fired him
over the telephone for insubordination.
On January 3, 1995, Robinson filed a complaint in state court
alleging claims for retaliatory discharge in violation of South Carolina
Code § 41-1-80, breach of contract, and breach of an implied contract
coupled with fraud. Following the removal of the complaint, based on
diversity of citizenship, to the United States District Court for the Dis-
trict of South Carolina on February 2, 1995, Robinson amended his
complaint to add several violations of the FMLA.
On June 30, 1995, Overnite moved for summary judgment on all
of Robinson's claims. On July 21, 1995, the district court held a hear-
ing on Overnite's motion for summary judgment, and on August 14,
1995, the district court entered an order denying Overnite's motion
for summary judgment on all counts.
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2 Dr. Gardner did not diagnose Robinson's fractured sternum, fractured
ribs, or fractured vertebrae during this visit; only subsequently did Rob-
inson learn of the extent of his injuries.
6
On August 23, 1995, the morning of trial, the district court sua
sponte reconsidered its earlier denial of Overnite's motion for sum-
mary judgment as to Robinson's breach of contract and breach of an
implied contract accompanied by a fraudulent act claims. After hear-
ing brief argument from both parties, the district court granted sum-
mary judgment to Overnite on both of Robinson's contract-based
claims. The district court found that the disclaimer in the Handbook,
stating that an employment-at-will relationship existed between Over-
nite and its employees, was sufficiently conspicuous and that a rea-
sonable person should have noticed it. The district court held,
therefore, that Robinson was an at-will employee and could be termi-
nated at will.
On August 23 and 24, 1995, the district court conducted a bench
trial on remaining causes of action, the retaliatory discharge claim and
the FMLA claims. On October 31, 1995, the district court ruled in
favor of Overnite on each of Robinson's remaining claims. The dis-
trict court found that Robinson had produced no evidence suggesting
that he would not have been discharged but for his workers' compen-
sation claim. Rather, according to the district court, all of the evidence
suggested that Robinson was terminated for his refusal to sign the
CAR. Since Robinson failed to produce any evidence of a causal
nexus between his termination and his workers' compensation claim,
the district court held that his retaliatory discharge claim under South
Carolina Code § 41-1-80 must fail.
With regard to Robinson's FMLA claims, the district court held
that the FMLA includes a notice requirement and that unless an
employee requests FMLA leave, or otherwise puts the employer on
reasonable notice of the employee's desire for FMLA leave, the
employee is not entitled to such leave. The district court found that
in this case, Robinson never gave Overnite reasonable notice of his
desire for FMLA. Therefore, the district court held that Overnite did
not violate the FMLA.
Robinson noted a timely appeal.
7
II.
A.
Whether a party was entitled to summary judgment is a matter of
law which we review de novo. Higgins v. E.I. DuPont de Nemours &
Co., 863 F.2d 1162, 1167 (4th Cir. 1988). Summary judgment is
appropriate when the pleadings, depositions, answers to interrogato-
ries, and admissions on file, together with any affidavits, if any, show
that there is no genuine issue as to any material fact and that the mov-
ing party is entitled to judgment as a matter of law. FED. R. CIV. P.
56(c).
B.
Robinson first argues that the district court erroneously granted
Overnite's motion for summary judgment as to his breach of contract
and breach of an implied contract coupled with fraud claims on the
ground that Robinson was an at-will employee who could be termi-
nated at any time. See Kumpf v. United Tel. Co. , 429 S.E.2d 869, 871
(S.C. Ct. App. 1993) (recognizing that doctrine of termination at will
is the law of South Carolina). Instead, Robinson argues that the Hand-
book altered his at-will status, creating an obligation on the part of
Overnite to comply with its provisions.3
We need not address whether the disclaimer contained in the Hand-
book was conspicuous as a matter of law because even if the district
court erred in so holding, the district court properly granted Over-
nite's motion for summary judgment as to Robinson's breach of con-
tract claims because Robinson did not produce any evidence that
_________________________________________________________________
3 Under South Carolina law, "an employer may become contractually
bound by the provisions of its employee handbook absent a conspicuous
disclaimer or provision to the contrary." Hannah v. United Refrigerated
Services, Inc., 430 S.E.2d 539, 541 (S.C. Ct. App. 1993). Thus, if an
employer wishes to issue policies, manuals, or bulletins as purely advi-
sory statements with no intent of being bound by them, the employer
must "insert[ ] a conspicuous disclaimer or provision into the written
document." Small v. Springs Indus., Inc., 357 S.E.2d 452, 454-55 (S.C.
1987).
8
Overnite breached any particular provision of the Handbook when it
terminated him. Robinson argues that Overnite violated two distinct
provisions of its Handbook when it terminated his employment. First,
Robinson argues that Overnite violated the provision of the Handbook
that provided that "[a]ny driver involved in three (3) preventable acci-
dents within twelve (12) consecutive months, shall be terminated
regardless of the amount of property damage. . . . Depending upon the
circumstances and severity, even one (1) accident may result in dis-
missal." (J.A. 605). Second, Robinson alleges that Overnite violated
its Driver Appeal Policy, providing for an appeal mechanism for
Overnite drivers who are terminated for an alleged safety violation.
The central problem with both of Robinson's arguments is that they
rest on the premise that Robinson's employment with Overnite was
terminated for a safety violation. However, following the bench trial,
the district court found that Robinson was terminated for his refusal
to sign the CAR, not for his accident or for any other safety violation.
Although Robinson argues that the district court's finding that he was
fired because he refused to sign the CAR was clearly erroneous, the
district court relied on specific testimony supporting its conclusion
and Robinson cites no evidence to the contrary. Specifically, the dis-
trict court relied on Nolley's testimony that it was Overnite's policy
to terminate the employment of any employee who refused to sign a
CAR and that every employee at the Gaffney facility who refused to
sign a CAR had been discharged.
In arguing that the district court's finding that he was terminated
for failing to sign the CAR was clearly erroneous, Robinson relies pri-
marily on the district court's own statement in its order that "[n]o one
told [Robinson] that his failure to . . . sign the CAR would be consid-
ered insubordinate, nor did anyone tell him that failing to sign the
form would result in his termination." (J.A. 32). However, whether
anyone told Robinson that a refusal to sign the CAR would be consid-
ered insubordinate or that such conduct would result in his termina-
tion does not undermine the district court's conclusion that it was this
behavior that caused Robinson's termination. In addition, preceding
the statement quoted above, the district court stated that upon Robin-
son's return from his appointment with Dr. Gardner on January 14,
1994, "Mr. Patterson told [Robinson] that Mr. Patterson had been
instructed by the main office that Mr. Robinson had to sign the CAR
9
that day." Id. Thus, the district court found that Robinson had been
instructed to sign the CAR. In light of the fact that Robinson did not
sign the CAR that day, the district court made no findings inconsistent
with its ultimate conclusion that Robinson was terminated for failing
to sign the CAR.
Because Robinson was fired for refusing to sign the CAR, not
because of his accident, the Handbook provisions relating to the num-
ber of accidents that will lead to termination or an appeal policy for
drivers terminated for the violation of safety regulations are not impli-
cated in this case. Instead, the pertinent Handbook section is the sec-
tion on employee conduct, which provides that an employee may be
subject to disciplinary action, including dismissal, for insubordina-
tion. Because the contract provisions allegedly breached by Overnite
are not applicable and because the Handbook states explicitly that an
employee may be terminated for insubordination, the reason articu-
lated by Overnite, the district court did not err when it granted Over-
nite's motion for summary judgment as to Robinson's claims based
on breach of contract.
III.
A.
On an appeal from a bench trial, we may only set aside findings of
fact if they are clearly erroneous, and we must give due regard to the
opportunity of the trial court to judge the credibility of the witnesses.
See FED. R. CIV. P. 52(a). We review the district court's conclusions
of law de novo. Resolution Trust Corp. v. Maplewood Inv., 31 F.3d
1276, 1281 n.7 (4th Cir. 1994).
B.
Following the bench trial, the district court first held that Robinson
had failed to produce sufficient evidence of a retaliatory discharge in
violation of South Carolina Code § 41-1-80. Robinson argues that the
district court overlooked evidence that Overnite's asserted reason for
terminating Robinson was pretextual for retaliatory animus.
10
Section 41-1-80 provides that "[n]o employer may discharge or
demote any employee because the employee has instituted or caused
to be instituted, in good faith, any proceeding under the South Caro-
lina Workers' Compensation Law (Title 42 of the 1976 Code), or has
testified or is about to testify in any such proceeding." S.C. CODE
ANN. § 41-1-80 (Law Co-op. Supp. 1995). In order to prove a claim
under § 41-1-80, a plaintiff must show: (1) the institution of workers'
compensation proceedings; (2) a discharge or demotion; and (3) a
causal connection between the institution of workers' compensation
proceedings and the discharge or demotion. See Hines v. United Par-
cel Serv., Inc., 736 F. Supp. 675, 677 (D.S.C. 1990). In order to estab-
lish a causal connection between the workers' compensation
proceeding and the discharge or demotion, the employee must estab-
lish that "he would not have been discharged`but for' the filing of the
claim." Wallace v. Milliken & Co., 406 S.E.2d 358, 360 (S.C. 1991).
If the employer articulates a legitimate, nonretaliatory reason for the
termination or demotion, the proximity in time between the injury and
the termination or demotion is not sufficient evidence to carry the
employee's burden of proving a causal connection. See Johnson v.
J.P. Stevens & Co., Inc., 417 S.E.2d 527, 529 (S.C. 1992) ("In light
of the conceded legitimate, nonretaliatory motives for the termination,
[the] proximity in time does not meet the employee's burden of
proof."); Marr v. City of Columbia, 416 S.E.2d 615, 617 (S.C. 1992)
(rejecting retaliatory discharge claim where only evidence suggesting
retaliatory motive for discharge was temporal proximity of claim to
discharge).
In arguing that he has established a claim for retaliatory discharge
under § 41-1-80, Robinson relies primarily on his contention that the
district court's finding that he was terminated for failing to sign the
CAR is clearly erroneous. According to Robinson, the district court
overlooked evidence that Overnite's articulated reason for Robinson's
discharge was pretextual. However, as stated above, there was suffi-
cient evidence to support the district court's conclusion that Robinson
was discharged for failing to sign the CAR when instructed to do so.
Nolley testified that at least two other employees had been discharged
for the same reason and that it was Overnite's policy to discharge
anyone who would not sign the CAR. Robinson has produced no evi-
dence contradicting Nolley's testimony, nor has Robinson produced
evidence of any retaliatory animus directed at either him personally
11
or at workers' compensation claimants in general by Overnite.
Instead, the only evidence Robinson produced of a causal connection
between his termination and his workers' compensation claim was
their temporal proximity. As noted above, however, where an
employer has articulated a legitimate, nonretaliatory reason for the
termination, this evidence is not sufficient to establish that the two
were causally related under South Carolina law. See, e.g., Marr, 416
S.E.2d at 617; Johnson, 417 S.E.2d at 529. Because Robinson failed
to produce sufficient evidence of a causal connection between his
workers' compensation claim and the termination of his employment
with Overnite, we affirm the district court's judgment in favor of
Overnite on Robinson's claim for retaliatory discharge in violation of
South Carolina Code § 41-1-80.
C.
Finally, Robinson appeals the district court's judgment in favor of
Overnite on his FMLA claims. In appealing the district court's judg-
ment, Robinson argues, first, that the district court erred when it held
that Robinson did not place Overnite on sufficient notice that he had
a "serious health condition," see 29 U.S.C. § 2612(a)(1)(D) (entitling
eligible employee to twelve workweeks of leave for a"serious health
condition"), and, second, that the district court erred when it held that
Overnite did not violate the FMLA by interfering with his right to
medical leave under the FMLA, see 29 U.S.C.§ 2615(a) (prohibiting
employers from interfering with, restraining, or denying the exercise
of any rights under the FMLA). We will first set forth the pertinent
provisions of the FMLA and then address each of Robinson's argu-
ments in turn.
1.
Under the FMLA, an eligible employee is entitled to a total of
twelve workweeks of leave during any 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). Under the interim regulations in effect at the
time of Robinson's injury and termination,4 a "serious health condi-
_________________________________________________________________
4 The Secretary of Labor released final regulations effective February
6, 1995. See The Family and Medical Leave Act of 1993, 60 Fed. Reg.
12
tion" is an illness, injury, impairment, or physical or mental condition
that involves "[a]ny period of incapacity requiring absence from
work, school, or other regular daily activities, of more than three cal-
endar days, that also involves continuing treatment by (or under the
supervision of) a health care provider." 29 C.F.R. § 825.114(a)(2)
(1993). In addition to requiring that an employee have a "serious
health condition," the interim regulations also require that "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." Id. § 825.303(a). Although an employee must pro-
vide his employer with notice of his need for FMLA leave, he is not
required to expressly mention the FMLA. See id. § 825.302(c);
Manuel v. Westlake Polymers Corp., 66 F.3d 758, 763 (5th Cir.
1993). Rather, it is sufficient for the employee to notify his employer
that "leave is needed for an expected birth or adoption, for example."
29 C.F.R. § 825.302(c) (1993). Upon return from FMLA leave, the
interim regulations provide that an employee is entitled "to be
returned to the same position the employee held when leave com-
menced, or to an equivalent position . . . ." Id. § 825.214(a).
In addition to granting eligible employees the right to leave for cer-
tain family and medical reasons under § 2612(a), the FMLA also
explicitly prohibits employers from interfering with an employee's
exercise of his rights under the FMLA: "It shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this subchapter." 29
U.S.C. § 2615(a)(1). With regard to what conduct constitutes "inter-
fering with" any employee's rights in violation of § 2615(a)(1), the
interim regulations provide that "[a]ny violations of the [FMLA] or
of these regulations constitute interfering with, restraining, or denying
the exercise of rights provided by the [FMLA]." 29 C.F.R.
§ 825.220(b) (1993). The regulations provide further that
"`[i]nterfering with' the exercise of an employee's rights would
_________________________________________________________________
2180 (1995). Because Overnite's decision to terminate Robinson's
employment occurred prior to the release of the final regulations, how-
ever, the interim regulations govern this dispute. See Manuel v. Westlake
Polymers Corp., 66 F.3d 758, 761 n.2 (5th Cir. 1995).
13
include, for example, not only refusing to authorize FMLA leave, but
discouraging an employee from using such leave." Id.
The interim regulations also contain a number of provisions perti-
nent to this appeal that are designed to ensure that employees are ade-
quately informed of their rights under the FMLA. For example, 29
C.F.R. § 825.301(a) provides that "[i]f an employer has any written
guidance to employees concerning employee benefits or leave rights,
such as in an employee handbook, information concerning FMLA
entitlements and employee obligations under the FMLA must be
included . . . ." 29 C.F.R. § 825.301(a) (1993). In addition, the regula-
tions provide that when an employee gives notice of his need for
FMLA leave, the employer must provide the employee with informa-
tion detailing the specific expectations and obligations of the
employee, including any consequences of a failure to meet these obli-
gations. Id. § 825.301(c). Finally, the regulations require each
employer to post a notice explaining the FMLA's provisions and pro-
viding information concerning the procedures for filing complaints of
violations of the FMLA in conspicuous places where employees are
located. Id. § 825.300(a).
2.
Robinson first argues that the district court erroneously held that he
had failed to provide Overnite with reasonable notice of his need for
FMLA leave. Robinson asserts, in particular, that his complaints to
both Patterson and Nolley about his back pain, Dr. Moss's report indi-
cating acute lumbosacral strain, a chest contusion, and continued back
pain, and Dr. Gardner's report recommending no driving or lifting
were sufficient to put Overnite on notice of his need for leave because
of a "serious health condition."
As noted above, under the regulations in effect at the time of Rob-
inson's injury and termination, Robinson did not have to expressly
assert his rights under the FMLA to be considered to have given suffi-
cient notice of his need for FMLA leave. Manuel , 66 F.3d at 763.
Instead, he simply had to give Overnite notice of his need for leave
because of a qualifying reason, such as a serious health condition. See
29 C.F.R. § 825.302(c) (1993). In this case, however, the evidence is
undisputed that as of January 9, 1994, Robinson had been cleared to
14
resume driving by Dr. Moss, giving Overnite no reason to believe that
Robinson needed FMLA leave for "a serious health condition that
ma[de] [Robinson] unable to perform the functions of [his] position."
See 29 U.S.C. § 2612(a)(1)(D). Although Dr. Gardner's report of Jan-
uary 14 restricted Robinson from driving, arguably placing Overnite
on notice of the serious nature of Robinson's injury, Robinson testi-
fied that at approximately the same time that he handed Dr. Gardner's
report to Patterson, Patterson handed him the CAR and insisted for
the final time that he sign it. In addition, Patterson testified that he
had not seen Dr. Gardner's report at the time that Robinson was sus-
pended, testimony that is consistent with the conclusion that Overnite
was not made aware of the serious nature of Robinson's injury at the
time that it took disciplinary action against him for refusing to sign
the CAR. Because the record contains sufficient evidence to support
the district court's finding that Robinson failed to inform Overnite of
facts that could have put Overnite on notice of his need for FMLA
leave, this finding is not clearly erroneous and should not be disturbed
on appeal.5
_________________________________________________________________
5 Robinson also argues that the district court applied the wrong legal
standard to the FMLA notice requirement, requiring Robinson to invoke
explicitly the FMLA when requesting leave. As support, Robinson relies
on the fact that the district court stated during the trial that Overnite had
knowledge of Robinson's injury as described by Dr. Gardner, yet never-
theless concluded that Robinson had not provided sufficient notice of his
need for leave to invoke his rights under § 2612(a). However, the district
court made the statement regarding Overnite's knowledge in the context
of a ruling that any further evidence regarding Overnite's knowledge
would be cumulative. The district court explicitly found that Robinson
"never requested FMLA leave nor informed Overnite of facts that could
have reasonably put Overnite on notice of [his] desire or need to take
FMLA leave." (J.A. 33 (emphasis added)). This explicit finding demon-
strates that the district court was aware that informing an employer of
facts supporting the need for leave sufficiently places that employer on
notice under the FMLA. See 29 C.F.R. § 825.302(c) (1993). Therefore,
Robinson's argument that the district court applied the wrong notice
standard must fail.
15
3.
Finally, Robinson asserts that the district court erred when it held
that Overnite had not "interfered with" his rights under the FMLA in
violation of 29 U.S.C. § 2615(a). Specifically, Robinson argues that
Overnite violated the interim regulations implementing the FMLA by:
(1) failing to provide sufficient notice to its employees of their rights
under the FMLA by placing such notice in the employee handbook
or on conspicuous bulletin boards, see 29 C.F.R. §§ 825.301(a),
825.300(a) (1993); (2) failing to explain to Robinson his rights under
the FMLA once on notice of Robinson's need for leave, see id.
§ 825.301(c); and (3) interfering with Robinson's right to reinstate-
ment upon his return from FMLA leave, see id. § 825.214(a). These
arguments have no merit.
Addressing Robinson's first contention that Overnite failed to pro-
vide sufficient notice to its employees of their rights under the FMLA,
the trial testimony indicated that, within a few weeks of the effective
date of the FMLA, Overnite had revised its family and medical leave
policy and disseminated the new policy to all employees at the Gaff-
ney facility during employee meetings held to discuss the new policy
or with their paychecks. In addition, FMLA notices were posted on
the permanent bulletin boards in the drivers' area, and an FMLA
notice was contained in the first employee handbook to be distributed
in June 1994, following the effective date of the FMLA. There was
sufficient evidence, therefore, from which the district court could con-
clude that Overnite fully complied with its notice requirements under
the interim regulations, both by providing notice of the FMLA at the
time of the effective date and by including information about the
FMLA in its first handbook issued after the effective date.
Addressing Robinson's second contention that Overnite failed to
provide him with notice of his rights under the FMLA at the time
Overnite was put on notice of his need for leave, as discussed above,
the district court held that Robinson never placed Overnite on notice
of his need for leave, as required under the FMLA, a conclusion sup-
ported by the record. Because Overnite was never on notice of Robin-
son's need for FMLA leave, Overnite's duty to explain to Robinson
his rights and responsibilities under the FMLA, as provided in 29
C.F.R. § 825.301(c), was never triggered.
16
Finally, with regard to Robinson's assertion that Overnite inter-
fered with his right to be reinstated into his former position in viola-
tion of 29 C.F.R. § 825.214(a), Robinson argues that the imposition
of a probationary period in accordance with the CAR fundamentally
changed the nature of his position at Overnite. First, Robinson cites
no authority for the proposition that the imposition of a period of pro-
bation changed the nature of his position as a truck driver, such that
it would not be deemed "equivalent" under§ 825.214(a). In addition,
Nolley testified that Robinson was being placed on probation because
he had violated safety rules and caused a serious accident, not because
he had taken leave as a result of injuries sustained in the accident.
Because Robinson failed to produce evidence supporting a violation
of any of the regulatory provisions on which he relies, the district
court did not err in holding that Robinson failed to prove that Over-
nite "interfered with" the exercise of his rights under the FMLA.
IV.
For the foregoing reasons, we affirm the district court's grant of
summary judgment as to Robinson's claims based on breach of con-
tract and the district court's judgment following a bench trial in favor
of Overnite as to Robinson's retaliatory discharge and FMLA claims.
AFFIRMED
17