[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 5, 2004
No. 02-16509
THOMAS K. KAHN
_____________ CLERK
D.C. Docket No. 001-00067 CV-T-N
BRANDI HARE WALKER,
Plaintiff-Appellant,
versus
ELMORE COUNTY BOARD OF EDUCATION,
Defendant-Appellee,
GWENDOLYN DIXON, in her individual
and official capacity,
ROBERT P. MURCHISON, in his individual
and official capacity,
Defendants.
______________
Appeal from the United States District Court
for the Middle District of Alabama
_____________
(August 5, 2004)
Before TJOFLAT, BARKETT and HILL, Circuit Judges.
TJOFLAT, Circuit Judge:
The Family and Medical Leave Act of 1993, Pub. L. No. 103-3, 107 Stat. 6,
codified at 29 U.S.C. §§ 2601-54 (the “FMLA” or “Act”), requires “employers”1
to provide “eligible” employees with up to twelve weeks of unpaid leave to care
for a newborn child. 29 U.S.C. § 2612. An eligible employee is an employee who
has worked for the employer for twelve months and for at least 1,250 hours in the
preceding year. 29 U.S.C. § 2611. The Act prohibits an employer from retaliating
against an employee who attempts to exercise any FMLA-created right. 29 U.S.C.
§ 2615(a).2
The question this appeal presents is whether a request for maternity leave
made by an employee who is ineligible at the time of her request constitutes an
attempt to exercise a FMLA right. The district court answered this question in the
affirmative, but denied the employee’s claim that her employer had retaliated
against her for requesting the maternity leave. We affirm the district court’s
1
The act defines “employer” as “any person engaged in commerce or in any industry or
activity affecting commerce who employs 50 or more employees for each working day during
each of 20 or more calendar workweeks in the current or preceding calendar year.” 29 U.S.C.
§ 2611(4)(A)(i).
2
Section 2615(a) makes it “unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right provided under [the FMLA].”
2
decision on the ground that the Act does not protect the attempt made in this case.3
I.
In August 1999, the Board of Education for Elmore County, Alabama (the
“School Board” or “Board”), hired Brandi Hare Walker to teach third grade at the
Robinson Springs School for one year.4 Walker reported for work on August 9,
1999. The contract, which required Walker to teach until the school year ended on
May 19, 2000, would be automatically renewed unless the School Board elected
not to renew it,5 and provided that Walker would be paid $28,394 in twelve
monthly installments beginning September 30, 1999, and ending August 30, 2000.
In December, Walker informed the principal of the Robinson Springs
School that she was pregnant. The following April, Walker told the principal that
she was due on August 2 and inquired as to what she should do to obtain maternity
3
“A correct judgment may be affirmed on any ground regardless of the grounds
addressed, adopted or rejected by the district court.” Sosa v. Chase Manhattan Mortgage Corp.,
348 F.3d 979, 983 (11th Cir. 2003).
4
In determining whether the district court erred in granting the summary judgment, we
take the evidence in the light most favorable to the nonmovant. Focus on the Family v. Pinellas
Suncoast Transit Auth., 344 F.3d 1263, 1271 (11th Cir. 2003). The facts recited in part I reflect
the evidence viewed in such light.
5
Under Alabama law, teachers are deemed to have been offered reemployment for the
succeeding school year unless the employing board of education notifies them to the contrary in
writing by June 15. Ala. Code § 16-24-12.
3
leave following the child’s arrival. The principal told Walker that she should
make her request for leave in a letter to the School Board. She recommended that
Walker wait until the Board decided whether her contract would be renewed for
the next school year.
The School Board made its decision on May 15. It met that day to receive
the superintendent of school’s recommendations on personnel actions, including
the renewal of the one-year teacher contracts. Walker’s principal had told Walker
on May 12 that the School Board would not be renewing her contract, and on May
16, the superintendent of schools informed her by letter that such was the case.
Walker gave birth to a daughter on July 27, 2000. On August 3, the
teachers in the Elmore County school system reported for work for the 2000-2001
school term.
II.
On January 17, 2001, Walker brought this lawsuit against the Elmore
County Board of Education, the superintendent of schools and the principal of
Robinson Springs School.6 From the allegations of her complaint, the district
court concluded that Walker was bringing two claims. The first, which the court
6
Walker sued the superintendent and principal in both their official and individual
capacities.
4
labeled a “prescriptive” claim, assumed that Walker was an eligible employee and
asserted that the School Board denied her right to maternity leave. The second,
which the court labeled a “proscriptive” claim, asserted that the School Board
decided not to renew Walker’s teaching contract in retaliation for her request for
FMLA leave. The superintendent and the principal moved the district court to
dismiss them from the case on the ground that they were not employers as defined
by the Act. The court agreed and granted their motion. The School Board also
moved for dismissal and alternatively for summary judgment. The court withheld
ruling on the alternative motions pending the close of discovery. After discovery
was completed, the court granted the Board summary judgment. Walker v. Elmore
County Bd. of Educ., 223 F. Supp. 2d 1255, 1256 (M.D. Ala. 2002).
Turning to Walker’s “prescriptive” claim, the district court held that Walker
was not an eligible employee—because she had not worked for the School Board
for at least twelve months and for at least 1,250 hours of service during the
previous twelve-month period—and had no right to the leave she requested. The
court therefore denied relief on that claim.7 Id. at 1258.
Addressing Walker’s “proscriptive” claim, the district court first considered
the threshold issue of whether the FMLA protects a request for maternity leave by
7
The court’s ruling on the “prescriptive” claim is not challenged in this appeal.
5
an ineligible employee. Noting that other district courts had adopted the view that
“any action taken by an employee before becoming an eligible employee cannot be
protected activity under the FMLA,” the district court nevertheless found that
“some actions” taken by an employee before eligibility “may be” protected. Id. at
1259. Specifically, the court stated,
where the employee, before she becomes eligible for FMLA, is putting the
employer on notice of her intent to take FMLA leave after she becomes
eligible for FMLA coverage, logic requires that the FMLA be read to
require that the employee be permitted to make a retaliation charge against
the employer for an adverse-employment action.
Id. at 1260. The court then held that “although Walker was not an eligible
employee when she delivered her child, and would not have been an eligible
employee even if she had delivered on her anticipated delivery date,” her request
was protected by the Act because “almost all of her leave would have taken place
during her FMLA-eligibility period.” Id. at 1261.
Having decided that the FMLA protected Walker from retaliation for her
maternity leave request, the district court then addressed the merits of her claim.
Because Walker’s claim—that the School Board decided not to renew her contract
because she applied for maternity leave—was based on circumstantial evidence,
the court applied the burden shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under that test, as
6
applied in the FMLA context at hand, if Walker established a prima facie case of
retaliation, the burden of going forward with the evidence shifts to the Board. If it
proffered a nonretaliatory reason for its adverse employment decision, Walker
would have to show that the reason was a pretext for retaliation. In this case, the
School Board proffered seven nonretaliatory reasons for not renewing Walker’s
contract.8 The court then looked for evidence that the reasons were a pretext for
retaliation and found none. Because, in the court’s eyes, Walker had failed the
McDonnell Douglas test, it granted the School Board’s motion for summary
judgment. Walker, 223 F. Supp. 2d at 1262-63.
Walker now appeals the district court’s disposition of her “proscriptive”
claim. She contends first that the evidence of the School Board’s reasons for not
renewing her contract was not evidence at all; rather, it consisted of
unauthenticated exhibits attached to a memorandum the Board’s counsel filed in
support of the Board’s motion for summary judgment. Second, assuming that
those exhibits were properly before the court, Walker says that material issues of
8
The reasons were:
(1) she did not maintain a proper relationship with parents; (2) she did not establish and
maintain a proper relationship with children in her class, especially when disciplining
them; (3) she did not maintain her bulletin board properly; (4) she did not timely submit
data requested by her principal; (5) she did not maintain proper classroom control; (6) she
referred students to the office about matters that she could and should have resolved in
her classroom; and (7) her principal did not believe she would be a satisfactory teacher.
Walker, 223 F. Supp. 2d at 1262.
7
fact remain as to whether the School Board’s reasons were pretextual.
We need not decide whether Walker failed the McDonnell Douglas test
because we conclude that Walker’s request for maternity leave did not constitute a
protected attempt to obtain an FMLA benefit.
III.
To state a claim of retaliation under the FMLA, “an employee must allege
that (1) he engaged in a statutorily protected activity; (2) he suffered an adverse
employment decision; and (3) the decision was causally related to the protected
activity.” Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1207 (11th
Cir. 2001) (citation omitted) (applying the McDonnell Douglas analysis in a
FMLA case). Contrary to the district court, we hold that Walker’s claim fails at
the first step in this analysis because her request for leave was not protected by the
FMLA.
A.
We first note that Walker’s case differs from the usual retaliation case
because Walker was not an eligible employee under the FMLA at the time she
requested maternity leave. According to Walker, however, requesting leave for
which one will be eligible before one is actually eligible is an “attempt to
exercise” a right provided by FMLA, and employers are prohibited from
8
retaliating against an employee for making such a request. 29 U.S.C. § 2615.
Unless we agree that the FMLA protects a request for leave that is to begin after
the employee achieves eligibility, Walker’s case fails.
Examining the facts of this case closely, however, reveals that Walker’s
case is not one “where the employee, before she becomes eligible for FMLA, is
putting the employer on notice of her intent to take FMLA leave after she becomes
eligible for FMLA coverage.” Walker, 223 F. Supp. 2d at 1260. Here, Walker
would not have been eligible for leave even at the time her leave was to begin.9
Instead, Walker’s request was for leave that would begin several days before she
would have become eligible had her contract been renewed.10 There can be no
doubt that the request—made by an ineligible employee for leave that would begin
when she would still have been ineligible—is not protected by the FMLA. We
leave for another day the question of whether the FMLA protects a pre-eligibility
9
Walker’s maternity leave would have commenced on August 3, 2000, the first day upon
which she would have been required to report for work following both her due date (August 2)
and her actual delivery date (July 27). The day Walker would have become eligible for FMLA
leave, however, was her twelve-month anniversary at the school, August 9, 2000.
10
Walker argues that she could have used sick leave to fill the time between the date she
was required to report for work and the date upon which she would have become eligible for
FMLA leave. This argument misses the point, however, because the determination of whether an
employee has been employed for at least twelve months for FMLA eligibility “must be made as
of the date leave commences.” 29 C.F.R. § 825.110(d). For the same reason, the district court’s
holding that “almost all of [Walker’s] leave would have taken place during her FMLA-eligibility
period” is inapposite. 223 F. Supp. 2d at 1261.
9
request for post-eligibility maternity leave.
B.
As a fallback position, Walker asserts that the FMLA protects a request for
FMLA leave regardless of whether the employee would be eligible for the leave.
This argument is based on the district court’s holding that the FMLA “can protect
someone who mistakenly asks for FMLA leave although they are ineligible.” 223
F. Supp. 2d at 1259. We disagree with the district court’s holding. The FMLA
makes it unlawful for an employer to interfere with the attempt “to exercise[] any
right provided under this subchapter,” 29 U.S.C. § 2615(a)(1) (emphasis added),
and the right to leave is provided only to eligible employees. 29 U.S.C. § 2612.
While we do not reach the question of whether one can attempt to exercise a right
under the FMLA that one will have in the future, we hold that the statute does not
protect an attempt to exercise a right that is not provided by FMLA, i.e., the right
to leave before one becomes eligible therefor.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
10