CARNES, Circuit Judge:
Robin Amaro Brungart appeals from the district court's grant of summary judgment in favor of BellSouth Telecommunications, Inc. ("BellSouth"), on her claims under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. Brungart argues she was wrongfully denied FMLA leave pursuant to 29 C.F.R. § 825.110(d) and also that BellSouth retaliated against her in violation of the FMLA. This appeal primarily presents two issues: (1) whether that part of the notice provision of the § 825.110(d) regulation which purports to create eligibility based upon the failure of an employer to notify the employee of ineligibility within a specified time is a valid interpretation of the FMLA; and (2) whether termination of an employee the day before the commencement of scheduled FMLA leave always creates a genuine issue of material fact about the causal connection element for a prima facie case of discrimination. We answer both questions in the negative.
In February 1991 Robin Amaro Brungart began working for BellSouth in Florida as a service representative. On December 1, 1994 she began an unpaid leave of absence which lasted until September 1996. On September 23, 1996, Brungart was transferred to a service representative position for BellSouth in Birmingham, Alabama, and began a three week training program.
On December 2, 1996, Brungart's mother was hospitalized for emergency heart surgery. Brungart told her supervisors that she wanted to apply for FMLA leave effective immediately, and she submitted an FMLA leave application form, all on that same day.
Later that day, Brungart attempted to call one of her supervisors, Peggy Thompson, but was unable to reach her. Afterward, Thompson called Brungart who was
By letter dated January 16, 1997, BellSouth denied Brungart's December 2, 1996 request for FMLA leave. The grounds BellSouth gave for the denial was that Brungart had not worked 1,250 hours in the past 12 months, which is the minimum number of hours the FMLA requires before an employee is entitled to statutorily protected leave.
As a service representative, Brungart's job was to answer calls from customers wishing to discuss service orders. To maintain customer service, BellSouth measures the amount of time service representatives are actually available to take calls compared with the amount of time they are scheduled to do so. Because it involves adhering to a schedule, this measurement is called the adherence percentage. Service representatives in Birmingham were initially required to meet an adherence percentage of 93, but that percentage was increased in early 1997 to 94.5.
Brungart did not meet the required adherence percentage for October through December, the three full months that she worked at BellSouth in 1996. Because BellSouth has a grace period for employees coming out of training, Brungart was not disciplined in 1996 for failing to meet her adherence percentages. However, Brungart never met the required adherence percentage at any time before she was terminated in July of 1997. BellSouth's discipline process consists of progressive steps: counseling, warning, suspension, and finally termination of employment. Brungart received a warning and was suspended twice during 1997 because of her failure to meet adherence percentage requirements.
Some time in May or June of 1997, Brungart again applied for FMLA leave, this time so that she could have knee surgery. BellSouth's FMLA administrator approved three weeks of leave to begin July 10, 1997.
In early July, Calvin Nelson became the new top tier manager of the service representatives in Birmingham. He oversaw Vicky Capuzzo, who was Brungart's immediate supervisor. Also in early July, Capuzzo asked Brungart to resign, but Brungart refused. After the June adherence percentages were reported, Capuzzo told Nelson that Brungart had not met her required adherence objectives for June and also informed Nelson about Brungart's previous discipline (her warning and two suspensions during 1997) for failure to meet the adherence objectives.
Nelson made the decision to terminate Brungart. Nelson testified in his deposition that when he decided to terminate Brungart, he had no knowledge of her scheduled FMLA leave, and there is no evidence to contradict his testimony about that. Brungart was terminated on July 9, 1997, the day before she was to begin her requested leave for the knee surgery. She was told that she was being terminated for failure to meet BellSouth's adherence requirements.
Brungart sued BellSouth in a complaint which, after amendment, contained four counts. Count 1 claimed that BellSouth's termination of Brungart on July 9, 1997 had violated the FMLA, because it occurred as a result of her having requested leave to which she was entitled under the
Both parties filed motions for summary judgment. The district court granted BellSouth's motion for summary judgment on all counts. Brungart appeals only the district court's grant of summary judgment to BellSouth on the three FMLA counts.
We review the district court's grant of summary judgment de novo. See Allison, 184 F.3d at 1306. Summary judgment is appropriate only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We begin with Count 2, because it concerns events that are first in time.
A. WRONGFUL DENIAL OF LEAVE
In Count 2 of her complaint, Brungart claimed that BellSouth violated the FMLA with respect to the FMLA leave request she submitted on December 2, 1996 for her mother's emergency heart surgery. Congress enacted the FMLA "to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity." 29 U.S.C. § 2601(b)(1). The FMLA entitles eligible employees to take up to 12 weeks of leave during any 12-month period for medical reasons, for the birth or adoption of a child, and for the care of a spouse, child, or parent who has a serious health condition. See 29 U.S.C. § 2601(b)(2); 29 U.S.C. § 2612(a)(1). Not all employees are eligible for leave under the FMLA. The statute defines those who are as follows:
29 U.S.C. § 2611(2)(A). It is undisputed that at the time of her leave request in December of 1996 Brungart had not worked 1,250 hours for BellSouth during the previous 12-month period.
Brungart's theory behind Count 2 is that BellSouth's failure to inform her of her eligibility for FMLA leave within the time required by 29 C.F.R. § 825.110(d) made her eligible for the leave, or at least should have prevented BellSouth from denying that she was eligible, and as a result its denial of leave was wrongful. Brungart did not give notice of her need for leave more than two business days prior to the date she wanted to commence the leave, but instead applied for leave to begin effective immediately. In those circumstances, the relevant portion of § 825.110(d) is the following:
The validity of § 825.110(d) is squarely presented in this case. It is undisputed that in December 1996 when Brungart applied for medical leave to begin immediately she was statutorily ineligible for FMLA leave, because she had not worked for BellSouth the requisite 1,250 hours within the previous 12-month period. Likewise, it is undisputed that BellSouth failed to advise her of her ineligibility for FMLA leave until more than a month after it received her application for it. If the § 825.110(d) regulation is valid, by virtue of it Brungart is to be deemed eligible for FMLA leave in December 1996, but if the regulation is invalid there is no basis for her eligibility at that time. The district court held that BellSouth was entitled to summary judgment on this count because § 825.110(d) was "unconstitutional to the extent that it converts ineligible employees into eligible employees, contrary to the express language of the FMLA."
The only circuit to have addressed the issue so far is the Seventh, which held that this part of the § 825.110(d) regulation is invalid. See Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th Cir.2000).
There is no ambiguity in the statute concerning eligibility for family medical
We note that our conclusion here is strongly supported by our decision last year in McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir.1999). In that case this Court invalidated another Department of Labor regulation, one which provided that if an employer failed to give prospective notice that an absence was being counted as FMLA leave, the leave taken could not be counted against the employee's 12-week entitlement under the FMLA, with the result that the employer would be required to give a total of more than 12 weeks of leave. See id. at 1307-08 (citing 29 C.F.R. § 825.208(c); 29 C.F.R. § 825.700(a)). We explained that the regulation "converts the statute's minimum of federally-mandated unpaid leave into an entitlement to an additional 12 weeks of leave unless the employer specifically and prospectively notifies the employee that she is using her FMLA leave." Id. at 1308. Because the FMLA itself "does not suggest that the 12 week entitlement may be extended," we held that the regulation was contrary to the statute and therefore invalid and unenforceable. Id. That reasoning fits here.
For all of these reasons, we hold that 29 C.F.R. § 825.110(d) is invalid insofar as it purports to extend the eligibility provisions of the FMLA to an otherwise ineligible employee who is not promptly notified after requesting leave that she is ineligible for it under the statute.
B. RETALIATORY DISCHARGE
Although she was not eligible for FMLA leave in December 1996, which is the time involved in Count 2 of the complaint, Brungart had worked sufficient hours to become eligible before July of 1997, which is the time involved in Count 1 of the complaint. In that count Brungart claimed that BellSouth violated the FMLA by terminating her after her July 1997 application for FMLA leave, and in interference with that exercise of her rights
In addition to providing specified employees the right to certain leave, the FMLA also protects employees from being discriminated against by their employers for exercising or attempting to exercise the rights it provides. The statute makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter [of the FMLA]." 29 U.S.C. § 2615(a)(1). The statute also makes it "unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter [of the FMLA]." 29 U.S.C. § 2615(a)(2). Additionally, "[a]n employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave." 29 C.F.R. § 825.220(c).
When evaluating a claim of retaliation under the FMLA, in the absence of direct evidence of discrimination on the part of the employer, we apply the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for evaluating Title VII retaliatory discharge claims. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1275, 1283 (11th Cir.1999) (affirming based on the holding and rationale of the district court's order, which in turn applied the McDonnell-Douglas framework); see also King v. Preferred Technical Group, 166 F.3d 887, 891-92 (7th Cir.1999) ("We find no reason to treat an intent-based FMLA claim ... any differently than other retaliatory discharge cases."); Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319 (5th Cir.1999) (applying the McDonnell Douglas framework to evaluate claims that an employee was penalized for exercising rights protected by the FMLA in the absence of direct evidence of discrimination); Hodgens v. General Dynamics Corp., 144 F.3d 151, 160 (1st Cir.1998) (same); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (same).
In order to establish a prima facie case of retaliatory discharge or retaliation using the McDonnell Douglas framework, a plaintiff must show that (1) she engaged in statutorily protected conduct; (2) she suffered an adverse employment action; and (3) there is a causal connection between the protected conduct and the adverse employment action. See Parris v. Miami Herald Pub'g Co., 216 F.3d 1298, 1301 (11th Cir.2000); Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir.2000) (Title VII); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir.1999) (ADA).
BellSouth does not dispute that Brungart has satisfied the first two elements of the prima facie case. Brungart did engage in protected conduct by applying for FMLA leave for knee surgery, and she also suffered the adverse employment action of being discharged. The dispute is about whether Brungart came forth with sufficient evidence to create a genuine issue of fact that her application for FMLA leave caused the termination of her employment with BellSouth, which means: could a jury reasonably find from the evidence presented at the summary judgment stage that Brungart was fired because she sought FMLA leave? The district court granted summary judgment to BellSouth because it concluded that Brungart failed to create a genuine issue of fact about causation, that no reasonable jury could find a causal link between her request for leave and her termination.
Brungart argues that the fact she was fired the day before she was
The general rule is that close temporal proximity between the employee's protected conduct and the adverse employment action is sufficient circumstantial evidence to create a genuine issue of material fact of a causal connection. See Gupta, 212 F.3d at 590; Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926, 934 (11th Cir.1995) ("Proximity in time is sufficient to raise an inference of causation.") However, there is this exception: temporal proximity alone is insufficient to create a genuine issue of fact as to causal connection where there is unrebutted evidence that the decision maker did not have knowledge that the employee engaged in protected conduct. See Clover, 176 F.3d at 1355-56. In Clover the plaintiff, who brought a Title VII retaliation claim, had been informed the day after she engaged in protected conduct that she was going to be terminated, and later she was terminated. Id. at 1349. Notwithstanding the close temporal proximity between the protected conduct and the initial decision to terminate the plaintiff, we reversed the district court's denial of the defendant's motion for judgment as a matter of law on the retaliation claim. See id. at 1355-56. We did so because the plaintiff "failed to present sufficient evidence to establish that [the decision maker] was aware of her protected conduct." Id. at 1356. Exactly the same situation is before us in this case, and the Clover decision compels the same result.
Brungart contends that although Title VII cases often require actual knowledge on the part of the decision maker, under the FMLA, temporal proximity alone is sufficient because it implies knowledge. To say that temporal proximity "implies" knowledge is simply to say that we should
Brungart also argues that even if the decision maker did not have knowledge of the protected conduct, knowledge should be "imputed" to the corporation where other corporate officials or supervisors had knowledge of it. That position is, of course, foreclosed by our Clover decision, because the defendant in that case was a corporation. Even if the Clover decision did not exist, we would not be persuaded to adopt Brungart's imputed knowledge theory. The BellSouth corporation itself did not actually make the decision to take the adverse employment action; Nelson made that decision, albeit on the corporation's behalf. Because Nelson did not know of the protected conduct, he could not have taken that action on the corporation's behalf because of the protected conduct. This is another way of saying that the fact the employer is a corporation does not relieve a plaintiff of the burden of showing a causal connection between the protected conduct and the decision to take the adverse employment action.
Because the evidence is unrefuted that Nelson, the decision maker, did not know Brungart had requested and been scheduled for medical leave, Brungart failed to create a genuine issue of fact as to a causal connection between her termination and her scheduled leave or her request for it. Accordingly, she failed to establish a prima facie case of retaliation under the FMLA, and the district court correctly granted summary judgment to BellSouth on this claim.
The district court's judgment is AFFIRMED.