United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2100
___________
Charlene K. Wisbey, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
City of Lincoln, Nebraska, *
*
Appellee. *
___________
Submitted: March 10, 2010
Filed: July 6, 2010
___________
Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Charlene K. Wisbey appeals the district court’s1 dismissal on summary
judgment of her lawsuit alleging violations of the Americans with Disabilities Act
(ADA), 42 U.S.C. §§ 12101-12213, and the Family Medical Leave Act (FMLA), 29
U.S.C. §§ 2601-2654. For the reasons explained below, we affirm.
1
The Honorable David L. Piester, United States Magistrate Judge for the
District of Nebraska, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).
I.
As this appeal is from a grant of summary judgment, we review the facts in the
light most favorable to the nonmoving party. See Reed v. City of St. Charles, 561
F.3d 788, 790 (8th Cir. 2009). Beginning in 1979, Wisbey worked as an “Emergency
Dispatcher II” for the City of Lincoln, Nebraska (“the City”). The position required
Wisbey to “receiv[e] calls for emergency service and dispatch[] emergency service
units on a regular basis.” (J.A. 25.) Because of the potentially life-saving aspect of
her position, the City expected Wisbey to “function accurately while working under
considerable pressure” and to “think and act quickly and calmly in emergency
situations.” (Id. at 26.) Prior to 2007, Wisbey was never disciplined for missing work
or for any inability to perform the tasks of her position. In fact, her performance
evaluations reflected positive remarks.
From January through February 2007, Wisbey utilized a significant amount of
sick leave due to an upper respiratory infection. Wisbey was not compensated for this
leave because she had previously exhausted her allotted sick leave. The City provided
Wisbey a written warning for taking excessive leave and recommended that she apply
for intermittent leave under the FMLA.2 Wisbey complied with the request and on
February 27, 2007, she applied for intermittent FMLA leave on the basis of depression
and anxiety, claiming on the application that she had a “serious health condition that
render[ed] [her] unable to perform the essential functions of [her] job.” (Id. at 28.)
Attached to the FMLA application, Wisbey submitted a medical certification from her
physician, Dr. Pothuloori, stating that Wisbey “suffer[ed] from recurring cycle
depression, anxiety [which] interferes with her sleep, energy level, motivation, [and]
concentration . . . .” (Id. at 29.) Dr. Pothuloori’s certification also indicated that,
although Wisbey was “able to perform any one or more of the essential functions of
2
Wisbey had applied for, and received, FMLA leave on at least four prior
occasions during her employment with the City.
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[her] job,” she would need to take time off work intermittently over the “next 6
months or longer.” (Id.) Dr. Pothuloori left the blank labeled “anticipated return to
work date” empty. (Id.)
Because the medical certification from Dr. Pothuloori indicated that Wisbey’s
concentration and motivation could be affected, Julie Righter, the Communications
Manager of the City’s emergency services, began to question whether Wisbey was
still able to adequately perform her job as an emergency dispatcher. Righter shared
her concerns with Don Taute, the City’s personnel director, who suggested further
evaluation of Wisbey. Righter asked William Kostner, a Risk Manager, to schedule
an appointment for Wisbey to undergo a fitness-for-duty exam.
Kostner scheduled an appointment for Wisbey with Dr. Eli Chesen, a
psychiatrist, requesting that Dr. Chesen perform a fitness-for-duty exam to determine,
in his “professional medical opinion,” if Wisbey was “qualified to continue her work”
as an emergency dispatcher.3 (Id. at 20.) To aid in his assessment, the City provided
Dr. Chesen with information regarding the duties and job description of Wisbey’s
emergency dispatcher position. Her position required that she possess the ability to
“act quickly and calmly in emergency situations” and the “[a]bility to obtain accurate
and complete information from callers who may be frantic and incoherent due to
emergency conditions.” (Id. at 26.)
During her appointment with Dr. Chesen, Wisbey described her lengthy battle
with depression and insomnia and stated that the emergency nature of her job
exacerbated those conditions. For example, Wisbey described how she often
3
Wisbey maintains that the City inquired as to whether Dr. Chesen believed that
Wisbey suffered from Posttraumatic Stress Disorder (PTSD), however, the record
does not support this contention. The only reference to PTSD in the record involves
a statement in Dr. Chesen’s report indicating that Wisbey “blames” her work issues
on “alleged work-related Posttraumatic Stress Disorder.” (J.A. 36.)
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“witnessed” deadly events over the radio. After the examination, Dr. Chesen
submitted a three-page report on his findings. The report stated that Wisbey suffered
from “chronic relapsing depression (unipolar depression) which intermittently
interferes with her ability to function at full capacity at work vis-á-vis tiredness” and
that she was not “fit for duty as described in her job description, especially as related
to tiredness, her ability to concentrate and her ongoing propensity to likely miss
work.” (Id. at 38.)
After receiving this report on March 28, 2007, the City expressed to Wisbey its
concern that she could not perform her job, and placed Wisbey on administrative leave
with pay. On the afternoon of May 30, 2007, Righter received an undated letter,
authored by Dr. Pothuloori, which disagreed with Dr. Chesen’s conclusion that
Wisbey was unfit for duty. On May 31, 2007, Wisbey testified at a hearing before the
City’s Personnel Board that she stayed home from work when she felt tired, stating,
[a]t times my depression arises, and it makes me very tired where I can
sleep 20 straight hours. And that’s where it interferes. Being tired at
work was not ever a problem. But going on a string of six, seven straight
days, I can get very tired due to the medication I’m on or due to the fact
that I just get tired.
(Id. at 85-86.) Wisbey also stated that she would “never endanger anybody on the
street by going [to work] tired or unprepared mentally.” (Id. at 91.)
On April 3, 2007, the City met with Wisbey and provided her with a letter
explaining that she was being terminated based on Dr. Chesen’s determination that she
was unfit for duty. The letter stated, “For your own safety it is important that you not
continue in your present position.” (Id. at 61.) The letter also encouraged Wisbey to
“avail [herself] of City’s long term disability benefits.” (Id.) Wisbey filed suit in
Nebraska state court, claiming that the City violated her rights under the ADA and the
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FMLA. The City removed the case to federal court. Wisbey and the City filed cross
motions for summary judgment.
The district court granted the City’s motion for summary judgment and denied
summary judgment to Wisbey, dismissing the case. As to Wisbey’s ADA claim, the
district court found that: (1) Wisbey failed to show that the City “perceived [her] as
disabled as that term is defined under the ADA;” (2) no discriminatory evidence
existed as to the City’s decision to terminate Wisbey;” (3) Wisbey could not show that
the City failed to reasonably accommodate her because her claim was premised on “a
right to recovery solely on the basis of perceived disability;” and (4) even if the City
was required to provide a reasonable accommodation, Wisbey failed to present any
evidence of a feasible accommodation. (D. Ct. Order 22.) As for Wisbey’s FMLA
claim, the district court found that: (1) “in requesting indefinite, intermittent, self-
determined leave,” Wisbey did not show a right to leave protected by the FMLA; (2)
Wisbey “failed to show that her employment termination was caused by the fact that
she requested leave;” and (3) Wisbey was acceptably terminated based on medical
information that she was unable to adequately perform her job and “not because she
requested family medical leave.” (Id. at 25-26.)
II.
On appeal, Wisbey argues that the district court erred in granting summary
judgment to the City, because the requirement that she submit to a fitness-for-duty
exam “was a violation of the ADA and the FMLA and that there is, at a minimum, a
question of fact [as to] whether [she] could perform the essential functions of her job,
but was terminated due to [the City’s] perception of her as disabled.” (Appellant’s Br.
9.) “Summary judgment is proper if the evidence, viewed in the light most favorable
to the nonmoving party, demonstrates that no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law.” Thomas v. Union Pac.
R.R., 308 F.3d 891, 893 (8th Cir. 2002). However, summary judgment should be used
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“sparingly” in employment discrimination cases. Arnold v. Nursing & Rehab. Ctr. at
Good Shepherd, 471 F.3d 843, 845-46 (8th Cir. 2006). Indeed, we are particularly
deferential to the nonmovant in employment discrimination cases because the cases
often lack direct evidence and are decided on mere inferences. See Land v.
Washington County, 243 F.3d 1093, 1095 (8th Cir. 2001). Notwithstanding this
point, summary judgment is proper here because Wisbey has failed to establish a
factual dispute regarding any essential element of her case. See Arnold, 471 F.3d at
846.4
A. ADA
From Wisbey’s convoluted argument,5 we gather she challenges the district
court’s finding that no ADA violation occurred, insisting that genuine issues of
material fact exist as to whether: (1) the City regarded her as disabled; (2) she could
perform the essential functions of her job; and (3) the City failed to provide her a
reasonable accommodation. We are unpersuaded by Wisbey’s attempt to improperly
stretch well-established ADA principles.
The purpose of the ADA is to eliminate discrimination against qualified
employees with disabilities. 42 U.S.C. § 12101. As the employee, Wisbey bears the
4
We recently discussed in detail the use of the summary judgment standard in
employment discrimination and retaliation cases. See Torgerson v. City of Rochester,
No. 09-1131, 2010 WL 2010996, at *7 (8th Cir. May 21, 2010) (citing cases).
5
The City argues that Wisbey did not assign error in her opening brief as to her
ADA claim and that she has waived the issue. See Fed. R. App. P. 28(a)(9)(A)
(requiring an appellant’s brief to contain the “contentions and the reasons for them,
with citations to the authorities, and parts of the record on which the appellant
relies.”); see also United States v. Gonzales, 90 F.3d 1363, 1369-70 (8th Cir. 1996)
(failure to assign error in a brief is considered abandonment of the issue). Although
we find her argument somewhat disorganized, we conclude that Wisbey has
sufficiently raised the issue for our consideration.
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initial burden of establishing a prima facie case of discrimination under the ADA.
Kosmicki v. Burlington N. & Santa Fe Ry., 545 F.3d 649, 651 (8th Cir. 2008). To do
so, Wisbey must demonstrate that she: (1)“was disabled within the meaning of the
ADA;” (2) “was qualified to perform the essential functions of [her] job;” and (3)
“suffered an adverse employment action because of [her] disability.” Id. As Wisbey
has not shown that she was a disabled person within the meaning of the ADA, we
refrain from discussing the other elements.
The ADA defines a disability, with respect to an individual, as: “(A) a physical
or mental impairment that substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such
an impairment.” 42 U.S.C. § 12102(2). A “major life activity” means “functions such
as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.” 29 C.F.R. § 1630.2(I). In her complaint, Wisbey
concedes that she “does not have a disability or a substantially limiting impairment.”
(J.A. 6, ¶ 9.) However, Wisbey brings her ADA claim under the “regarded as”
provision, arguing that she was “perceived by [the City] as having an impairment
which substantially limits one or more major life activities” and that “[t]his perception
caused [the City] to discharge [her].” (Id. at 7, ¶ 19.)
“In order to be regarded as disabled with respect to the major life activity of
working, the employer must mistakenly believe that [an] actual impairment
substantially limits the employee’s ability to work.” Chalfant v. Titan Distribution,
Inc., 475 F.3d 982, 989 (8th Cir. 2007) (emphasis added). A substantial limitation on
the major life activity of working means that an individual must be:
significantly restricted in the ability to perform either a class of jobs or
a broad range of jobs in various classes as compared to the average
person having comparable training, skills and abilities. The inability to
perform a single, particular job does not constitute a substantial
limitation in the major life activity of working.
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29 C.F.R. § 1630.2(j)(3)(I).
Under the ADA, the “regarded as” provision was established to combat “archaic
attitudes, erroneous perceptions, and myths” working to the disadvantage of the
disabled or perceived disabled. Brunko v. Mercy Hosp., 260 F.3d 939, 942 (8th Cir.
2001) (quotations omitted). “If a restriction is based upon the recommendations of
physicians, then it is not based upon myths or stereotypes about the disabled and does
not establish a perception of disability.” Breitkreutz v. Cambrex Charles City, Inc.,
450 F.3d 780, 784 (8th Cir. 2006).
The record establishes that Wisbey was terminated because she was not “fit for
duty,” as reported by Dr. Chesen,6 and not based on any myths or stereotypes about
being disabled. See Brunko, 260 F.3d at 942 . In fact, Wisbey herself even admitted
in her FMLA application that she was suffering a “serious health condition that
render[ed] [her] unable to perform the essential functions of [her] job,” (J.A. at 28),
and she testified at the hearing before the City’s Personnel Board that she did not go
to work when she felt tired due to her depression. Therefore both Wisbey and her own
doctor, determined that she would have to take leave on sporadic occasions based on
her condition, providing support that the City did not mistakenly regard Wisbey as
6
Wisbey also argues that the difference of opinion between Dr. Chesen and Dr.
Pothuloori as to whether Wisbey was fit for duty creates a genuine issue of material
fact. However, Wisbey did not in anyway dispute the contents of the fitness-for-duty
report until the night before the Personnel Board hearing—weeks after the fitness-for-
duty report was completed. The record reflects that, upon receipt of the undated letter
disputing Dr. Chesen’s findings, the City had already decided to terminate Wisbey
because she was unfit for duty. We have held that a contrary medical report that is
provided after a decision to terminate is irrelevant. See Kozisek v. County of Seward,
539 F.3d 930, 935 (8th Cir. 2008) (“That Kozisek was able, two months later, to
manipulate a physician from the VA into providing a letter opining that outpatient
treatment would be sufficient does not matter.”).
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having an impairment that substantially limited her ability to work, but that Wisbey
was, in fact, unable to work due to her condition.
Wisbey further alleges that the fitness-for-duty exam did not constitute a
business necessity because it required her to submit to an exam that is not permitted
under the ADA. The ADA prohibits an employer from requiring a medical
examination or inquiring into the disability status of an employee “unless such
examination or inquiry is shown to be job-related and consistent with business
necessity.” 42 U.S.C. § 12112(d)(4)(A). “To demonstrate compliance with §
12112(d)(4)(A), the employer bears the burden to show the asserted ‘business
necessity’ is vital to the business and the request for a medical examination or inquiry
is no broader or more intrusive than necessary.” Thomas v. Corwin, 483 F.3d 516,
527 (8th Cir. 2007).
Moreover, employers are permitted “to use reasonable means to ascertain the
cause of troubling behavior without exposing themselves to ADA claims,” Cody v.
CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir. 1998), and fitness-
for-duty exams are considered a reasonable means of making this determination, see
Thomas, 483 F.3d at 528. In Thomas, we held that a fitness-for-duty exam was
appropriate where a company “sought to ascertain whether [the employee] was fit to
return to a position under the same working conditions that allegedly caused [her]
stress and anxiety . . . [and] an extended three-week absence from work.” Id. As here,
the employer in Thomas directed the examining doctor “to determine whether any
psychological problems interfered with [the employee’s] ability to return to work.”
Id. We noted:
“Courts will readily find a business necessity if an employer can
demonstrate . . . a medical examination or inquiry is necessary to
determine . . . whether the employee can perform job-related duties when
the employer can identify legitimate, non-discriminatory reasons to
doubt the employee’s capacity to perform his or her duties (such as
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frequent absences . . .),” or “whether an employee’s absence or request
for an absence is due to legitimate medical reasons, when the employer
has reason to suspect abuse of an attendance policy.”
Id. at 527 (quoting Conroy v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88, 97-98 (2d
Cir. 2003)). In an analogous case, Gajda v. Manhattan & Bronx Surface Transit
Operating Auth., 396 F.3d 187 (2d Cir. 2005) (per curiam), the Second Circuit held
that an employee’s statements on an FMLA application, which noted, “[m]y own
serious health condition renders me unable to perform the functions of my position,”
and statements from the employee’s doctor that “[the employee] will need intermittent
leave at undetermined times for lifetime,” id. at 189, provided the employer
“‘legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform
his . . . duties.’” Id. (quoting Conroy, 333 F.3d at 98).
The nature of Wisbey’s position supports the City’s claim that the fitness-for-
duty exam was a business necessity. As a dispatcher, Wisbey played an essential role
in emergency functions and her position required her to be present to answer calls and
alert at all times. In this position, people’s lives are often at risk and a dispatcher’s
ability to focus and concentrate at all times is essential to adequate job performance.
See, e.g., Krocka v. City of Chicago, 203 F.3d 507, 515 (7th Cir. 2000) (“It was
entirely reasonable, and even responsible,” for a city to require a fitness-for-duty exam
for a police officer when the city learned that “he was experiencing difficulties with
his mental health”); Watson v. City of Miami Beach, 177 F.3d 932, 935 (11th Cir.
1999) (holding that a fitness-for-duty exam of a police officer that exhibited abnormal
mental conditions was acceptable and that the city was not “required to forgo a fitness
for duty examination to wait until a perceived threat becomes real or questionable
behavior results in injuries”). As the Seventh Circuit has noted:
where inquiries into the psychiatric health of an employee are job related
and reflect a concern with the safety of employees, the employer may,
depending on the circumstances of the particular case, require specific
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medical information from the employee and may require that the
employee undergo a physical examination designed to determine his
ability to work.
Krocka, 203 F.3d at 515 (quotations and alterations omitted).
Although Wisbey relies on Albert v. Runyon, 6 F. Supp. 2d 57 (D. Mass. 1998),
in support of her proposition that the fitness-for-duty exam violated the ADA, Albert
actually supports the City’s position. Unlike Wisbey, the claimant in Albert “deni[ed]
that the ADA . . . [was] implicated . . . since she [was] not . . . under any disability and
[was] not making any claim under the ADA.” Id. at 62. Furthermore, the court noted
that “an employer may have sufficient business justification to require an employee
returning from FMLA leave to undergo examination only if she suffers from a
continuing disability that the employer has reason to believe might affect her job
performance.” Id. at 69.
Here, the implication in the FMLA application that Wisbey suffered from
conditions affecting her concentration and motivation reasonably gave the City pause
with respect to whether Wisbey could continue as an emergency dispatcher. The
fitness-for-duty exam provided the City with a legitimate means of resolving the
matter by allowing the City “to ascertain whether [Wisbey] was fit to return to a
position under the same working conditions that allegedly caused [her illnesses].”
Thomas, 483 F.3d at 528. Accordingly, we conclude that the City did not violate the
ADA by requiring Wisbey to obtain a fitness-for-duty exam.
B. FMLA
Although we find Wisbey’s FMLA argument unorganized, she appears to assert
that the fitness-for-duty exam was unwarranted under the FMLA because the City had
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previously accepted Dr. Pothuloori’s certification,7 as submitted in Wisbey’s FMLA
application, that she could “perform any one of more of the essential functions of [her]
job,” although she would need to take time off work intermittently. (J.A. 29.) “Two
types of claims exist under the FMLA: (1) ‘interference’ . . . claims, in which the
employee alleges that an employer denied or interfered with his substantive rights
under the FMLA and (2) ‘retaliation’ . . . claims, in which the employee alleges that
the employer discriminated against him for exercising his FMLA rights.” Stallings
v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006) (citing 29 U.S.C. §
2615(a)(1)-(2)). “The difference between the two claims is that the interference claim
merely requires proof that the employer denied the employee his entitlements under
the FMLA, while the retaliation claim requires proof of retaliatory intent.” Id. at
1051. As the City notes in its brief, it is unclear which type of FMLA claim Wisbey
raises. Regardless, we find summary judgment proper as to both types of claims.
1. Interference
An employer is prohibited from interfering with, restraining, or denying an
employee’s exercise of or attempted exercised of any FMLA right. 29 U.S.C. §
2615(a)(1). Interference includes “not only refusing to authorize FMLA leave, but
discouraging an employee from using such leave. It would also include manipulation
by a covered employer to avoid responsibilities under FMLA.” 29 C.F.R. §
825.220(b). “In an interference claim, an employee must show only that he or she was
entitled to the benefit denied.” Stallings, 447 F.3d at 1050 (quotation omitted). In
Stallings, we held that a retaliation claim, and not a interference claim, existed when
the employer “granted every request [the employee] made to take FMLA leave,” and
the employee had failed to establish that the employer had “denied him a benefit to
which he was entitled because he received all of the FMLA leave he requested.” Id.
7
Under the FMLA, “An employer may require that a request for leave . . . be
supported by a certification issued by the health care provider of the eligible
employee. . . .” 29 U.S.C. § 2613(a).
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at 1051. Similarly here, Wisbey was never denied FMLA leave and, therefore, has not
shown that she was entitled to any benefit that was denied. See id. at 1050-51.
Furthermore, contrary to Wisbey’s claim, “the FMLA does not provide leave
for leave’s sake, but instead provides leave with an expectation an employee will
return to work after the leave ends.” Throneberry v. McGehee Desha County Hosp.,
403 F.3d 972, 978 (8th Cir. 2005). Even had Wisbey’s FMLA requests been denied,
the FMLA does not provide an employee suffering from depression with
a right to unscheduled and unpredictable, but cumulatively substantial,
absences or a right to take unscheduled leave at a moment’s notice for
the rest of her career. On the contrary, such a situation implies that she
is not qualified for a position where reliable attendance is a bona fide
requirement . . . .
Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 853 (8th Cir. 2002)
(quotation omitted). Therefore, because Wisbey requested “intermittent leave” for
“six months or longer” she did not have a right to FMLA leave. Without the right to
FMLA leave, the City could not have interfered with Wisbey’s rights under the
FMLA.
2. Retaliation
An FMLA retaliation claim alleges that an employer discriminated against an
employee for asserting his rights under the act. See Darby v. Bratch, 287 F.3d 673,
679 (8th Cir. 2002) (citing 29 U.S.C. § 2615(a)(2)). “Basing an adverse employment
action on an employee’s use of [FMLA] leave . . . is therefore actionable.” Smith v.
Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002). To establish a retaliation
claim, Wisbey must show: (1) “that she exercised rights afforded by the Act;” (2) “that
she suffered an adverse employment action;” and (3) “that there was a causal
connection between her exercise of rights and the adverse employment action.” Id.
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Wisbey did not establish a causal connection between her application for
FMLA leave and her termination because the City relied on the fitness-for-duty exam,
and not Wisbey’s FMLA application, in its determination to terminate Wisbey’s
employment. The kind of causal connection required for a prima facie case is not “but
for” causation, but rather a showing that an employer’s “‘retaliatory motive played a
part in the adverse employment action,’” Kipp v. Missouri Highway and Transp.
Comm’n, 280 F.3d 893, 897 (8th Cir. 2002) (quoting Sumner v. United States Postal
Serv., 899 F.2d 203, 208-09 (2d Cir. 1990)). Here, the City lacked such a retaliatory
motive. Furthermore, Wisbey has not presented any evidence of retaliation besides
the fact that her termination occurred approximately one month after she submitted
the FMLA application. “Generally, more than a temporal connection . . . is required
to present a genuine factual issue on retaliation,” and “mere coincidence of timing can
rarely be sufficient to establish a submissible case of retaliatory discharge.” Id.
(quotations omitted). Therefore, we conclude that the City did not retaliate against
Wisbey in violation of the FMLA.
IV.
Accordingly, we affirm the district court’s judgment.
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