Kyle Blake v. City of Montgomery

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14229
Non-Argument Calendar
____________________
KYLE BLAKE,
Plaintiff-Appellant,
versus
CITY OF MONTGOMERY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:19-cv-00243-RAH-SMD
____________________
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2 Opinion of the Court 20-14229
Before J ORDAN, B RANCH, and L UCK , Circuit Judges.
PER CURIAM:
Kyle Blake, formerly a firefighter employed by the City of
Montgomery, appeals the district court’s grant of summary judg-
ment in favor of the City on his claims for interference and retalia-
tion under the Family and Medical Leave Act. After careful review
of the parties’ briefs and the record, we affirm.
I
A
In 2012, the City of Montgomery hired Mr. Blake as a Mont-
gomery firefighter. Two years later, Mr. Blake completed the train-
ing and certification required to serve the Montgomery Fire De-
partment (“MFD”) as both a firefighter and paramedic. In 2015, the
MFD transferred Mr. Blake to a paramedic assignment.
Firefighters assigned to a paramedic position, like Mr. Blake,
attend more calls than those assigned to fire suppression positions.
In a typical month, for example, firefighters in fire suppression po-
sitions make between 14 and 38 runs, while firefighters on para-
medic assignment make between 350 to 400 runs. In 2016, Mr.
Blake requested a transfer from his paramedic assignment to a fire
suppression assignment to “expand [his] experience and knowledge
in fire line operations[.]” D.E. 32-9 at 17. The transfer was approved
but never carried out.
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20-14229 Opinion of the Court 3
Due to a staffing shortage, the MFD often required Mr.
Blake and other firefighters on paramedic assignments to work
back-to-back 24-hour shifts, in contravention of the MFD’s rules
and regulations. On September 6, 2018,
The Montgomery Adver-
tiser published an article reporting on the MFD staffing shortage.
The article quoted a high-level City representative, who expressed
concern regarding the fatigue public safety personnel (i.e., firefight-
ers and paramedics) would face if required to work double shifts
for an extended period.
The City’s Employee Handbook encourages employees “ex-
periencing medical/behavioral problems” to consult with an Em-
ployee Assistance Program (“EAP”) counselor. As described in the
Handbook, the EAP provides “treatment resource referrals[ ] and
crisis intervention for employees relating to a medical/behavioral
problem that may involve psychological or emotional problems
[and] . . . some medical conditions (including those related to
stress).” Mr. Blake has acknowledged that, while employed by the
City, he was both aware of and did not request assistance from the
EAP.
The Handbook also contains specific instructions regarding
procedures for requesting Family and Medical Leave Act (“FMLA”)
leave. To request FMLA leave, an employee “must give 30 days’
advance notice to their supervisors,” or “[i]f the need for leave is
unforeseeable . . . employees must inform the department head as
soon as they are aware of the need for leave, but no less than five
business days from the beginning of their absence, unless an
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4 Opinion of the Court 20-14229
emergency situation exists . . . in which case the department head
must be informed as soon as practicable.” In February of 2018, six
months prior to the events giving rise to his claims, Mr. Blake fol-
lowed the City’s FMLA leave procedures when he requested and
took FMLA leave for carpal tunnel surgery.
B
On August 21, 2018, Mr. Blake worked a scheduled 24-hour
shift. The morning of August 22, 2018, before Mr. Blake finished
his assigned shift, District Chief B.S. Hackett, the supervisor for the
next shift, informed Mr. Blake that he would be held at the station
to work a 24-hour overtime shift. This overtime shift would re-
quire Mr. Blake to work a 48-hour shift from 8:00 A.M. on August
21, through 8:00 A.M. on August 23, followed by another already
scheduled 48-hour shift from 8:00 A.M. on August 24, through 8:00
A.M. on August 26.
Although Mr. Blake does not recall all that he said to DC
Hackett that morning, the parties agree that Mr. Blake told DC
Hackett that he “couldn’t do it anymore” and that he “would turn
[his] stuff in if [he] needed to.” D.E. 29-1 at 54:20–23. Mr. Blake did
not explicitly say the words quit or resign, but he has since con-
ceded that he referenced turning in his gear because “[w]hen you
leave employment, you turn your stuff in.” D.E. 29-1 at 82:3–11. In
an email to the MFD’s Chief of Staff, Mr. Blake further recalled that
DC Hackett replied by asking whether he would be willing to write
“a letter or put something on paper for him.” D.E. 29-4. Mr. Blake
declined.
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20-14229 Opinion of the Court 5
DC Hackett memorialized his exchange with Mr. Blake in
an internal memo addressed to Assistant Fire Chief R. H. Bozeman.
In the memo, DC Hackett wrote that he asked Mr. Blake if he in-
tended “to work [two] weeks[,] and [Mr. Blake] replied [‘]no.[’]”
D.E. 32-9 at 1. DC Hackett further noted that, following his ex-
change with Mr. Blake, he received separate calls from two MFD
officers who told him that Mr. Blake “ha[d] been severely burned
out lately” and that Mr. Blake’s “decision” was not permanent.
Id.
DC Hackett further conveyed that he “felt that the Command Staff
would have no problem[ ] . . . moving [Mr. Blake] to an assignment
that will give him some relief.”
Id. The memo does not, however,
reflect that Mr. Blake requested, expressed an intent to, or referred
to a need for a leave of absence.1
After his conversation with DC Hackett and prior to leaving
the station, Mr. Blake, in accordance with MFD’s overtime prac-
tice, confirmed that the 24-hour overtime shift beginning the
morning of August 22 would be covered by another paramedic.
Mr. Blake spoke to DC Hackett later that afternoon and told him
that he did not mean to be rude or disrespectful earlier that
1 Mr. Blake also submitted three declarations to the district court from fellow
MFD firefighters, documenting their recollections of the events of August 22,
2018, and the overall working conditions during the relevant period.
See D.E.
39-1, 39-3, & 39-4. All three declarations are similar in that they cast Mr. Blake’s
statements that morning as “informing” DC Hackett that he “could not” or
was “not able” to continue working 48-hour shifts as a medic anymore. Alt-
hough all three reflect that Mr. Blake was “burned out,” critically, none of the
declarations state that Mr. Blake expressed a desire or intent to take leave.
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6 Opinion of the Court 20-14229
morning. DC Hackett stated that he did not realize Mr. Blake was
“burned out that bad” and reassured Mr. Blake that he was “not
past the point of no return.” D.E. 29-1 at 62:6 – 63:14.
During this conversation, Mr. Blake did not retract his ear-
lier statements or request leave. Instead, Mr. Blake stated that he
would need to speak with his wife and “figure this out.”
Id. at 63:3–
10. Mr. Blake, nevertheless, came away from the conversation with
the impression that he was welcome to return to work for his next
scheduled shift and that “something [would] be worked out.”
Id. at
65:7–9. Specifically, Mr. Blake believed that he would be trans-
ferred from his paramedic assignment to a fire suppression unit.
Mr. Blake also believed that he would be referred to the EAP for
assistance.
After speaking with Mr. Blake, DC Hackett discussed Mr.
Blake’s situation with AC Bozeman. AC Bozeman instructed DC
Hackett not to contact Mr. Blake again because Mr. Blake would
not be allowed to return to work for the MFD. The following day,
AC Bozeman informed Mr. Blake that the MFD had “accepted [his]
verbal resignation” and that he should turn in his gear.
See D.E. 29-
1 at 68:16–21. According to Mr. Blake, he was “surprised” by AC
Bozeman’s call, but responded “with ‘10-4 Chief’ before [AC Bo-
zeman] ended the conversation.” D.E. 29-4 at 2. Mr. Blake spoke to
AC Bozeman again later that evening. During that call, AC Bo-
zeman reiterated that Mr. Blake should turn in his gear and advised
that he should request a meeting with Fire Chief Milford Jordan.
On August 24, 2018, AC Bozeman sent a memorandum to Chief of
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20-14229 Opinion of the Court 7
Operations E.D. Guantt documenting his conversation with Mr.
Blake. There, AC Bozeman wrote that the “Montgomery Fire Res-
cue has accepted [Mr. Blake]’s verbal resignation.” D.E. 32-9 at 3.
Believing that “a failure to report to duty would guarantee
[his] termination/resignation,” Mr. Blake attempted to report to
work on the morning of August 24, 2018.
See D.E. 29-4 at 2. When
he arrived at the station, Mr. Blake was instructed not to get on the
truck and that he should gather his belongings, turn in his gear, and
leave the property. Mr. Blake objected to the removal, responding
that he had “broken no rules” and further requesting “something
in writing stating that [he] was no longer employed.” D.E. 29-3. Mr.
Blake was told that he would receive written confirmation, but not
before he left the property. As instructed, Mr. Blake gathered his
belongings and left the station. The City later documented Mr.
Blake’s separation in a recommendation for personnel action form
dated August 28, 2018, reflecting that Mr. Blake resigned “NOT in
good standing.” D.E. 32-9 at 12.
Mr. Blake acknowledges that he did not advise anyone in the
MFD that he was “experiencing symptoms of PTSD, paramedic
burnout [or] sleep deprivation” or seek FMLA leave in connection
with the same prior to his exchange with DC Hackett on the morn-
ing of August 22, 2018.
See D.E. 29-1 at 88:3–20. Mr. Blake further
concedes that he did not seek medical treatment or schedule any
appointments to see a medical professional for any condition re-
lated to stress, PTSD, or burnout prior to August 22, 2018. Mr.
Blake did, however, begin seeing a licensed counselor some time
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8 Opinion of the Court 20-14229
after he left employment with the City, but did not submit any ev-
idence of a diagnosis for any condition.
C
Mr. Blake filed an action against the City in the federal dis-
trict court in April of 2019. He asserted FMLA interference and re-
taliation claims.2
After the close of discovery, the City moved for summary
judgment, arguing that Mr. Blake could not establish facts showing
(1) that he was entitled to FMLA leave; (2) that the City knew or
should have known that he required leave for an FMLA-qualifying
condition; (3) that he was denied any FMLA leave to which he was
entitled; (4) that he was constructively discharged; and (5) that he
engaged in a statutorily protected activity that could give rise to a
FMLA retaliation claim. The district court agreed and granted the
City’s motion.
II
We review a district court’s order granting summary judg-
ment
de novo, “viewing all the evidence, and drawing all
2 Mr. Blake also alleged that the City violated his due process rights. Mr. Blake
does not raise any argument as to the district court’s dismissal of the due pro-
cess claim, and he has thus abandoned any arguments as to that issue on ap-
peal.
See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th
Cir. 2004) (finding the law is “well settled in this Circuit that a legal claim . . .
that has not been briefed before the court is deemed abandoned and its merits
will not be addressed”).
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20-14229 Opinion of the Court 9
reasonable inferences, in favor of the non-moving party.”
Vessels
v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). Sum-
mary judgment is appropriate only if there is no genuine issue of
material fact, and the moving party is entitled to judgment as a
matter of law.
See id.
III
The FMLA grants an eligible employee the right to take up
to 12 weeks of “leave during any 12-month period . . . [b]ecause of
a
serious health condition that makes the employee unable to per-
form the functions of the position[.]” 29 U.S.C. § 2612(a)(1)(D) (em-
phasis added). The Act creates a private right of action for equitable
relief and money damages against employers who “interfere with,
restrain, or deny the exercise of or the attempt to exercise” FMLA
rights. 29 U.S.C. §§ 2615(a)(1), 2617(a). There are two types of
claims under § 2615(a): “interference claims, in which an employee
asserts that his employer denied or otherwise interfered with his
substantive rights under the Act, and retaliation claims, in which
an employee asserts that his employer discriminated against him
because he engaged in activity protected by the Act.”
Strickland v.
Water Works & Sewer Bd. of Birmingham, 329 F.3d 1199, 1206
(11th Cir. 2001) (internal citations omitted).
A
An FMLA interference claim “has two elements: (1) the em-
ployee was entitled to a benefit under the FMLA, and (2) [his] em-
ployer denied [him] that benefit.”
White v. Beltram Edge Tool
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10 Opinion of the Court 20-14229
Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). As to the first
prong, an employee has the right to take FMLA leave only if he
suffers from a “serious health condition” that makes him “unable
to perform the functions of [his] position.”
Id. (quoting
Hurley v.
Kent of Naples, Inc., 746 F.3d 1161, 1166 (11th Cir. 2014)).
A “serious health condition” is “an illness, injury, impair-
ment, or physical or mental condition that involves (A) inpatient
care in a hospital, hospice, or residential medical care facility; or (B)
continuing treatment by a health care provider.” 29 U.S.C. §
2611(11).
See also 29 C.F.R. § 825.115(a)(1). Continuing treatment
by a health care provider includes, among other things, a period of
incapacity of “more than three consecutive, full calendar days” and
any subsequent treatment or period of incapacity that involves
“[t]reatment two or more times, within 30 days of the first day of
incapacity, unless extenuating circumstances exist, by a health care
provider.” 29 C.F.R. § 825.115(a)(1).
See also Russell v. N. Broward
Hosp., 346 F.3d 1335, 1343 (11th Cir. 2003) (“[I]t takes some frac-
tion more than three whole calendar days in a row to constitute a
‘period of incapacity’ required” under the FMLA.). “Incapacity” is
the “inability to work, attend school or perform other regular daily
activities due to [a] serious health condition, treatment therefore,
or recovery therefrom.” 29 C.F.R. § 825.113(b).
An employee suffering from a serious health condition can
state an interference claim only if he gave his employer proper no-
tice of his need for leave.
See White 789 F.3d at 1195. If it is not
possible for the employee to provide advance notice because the
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20-14229 Opinion of the Court 11
need for leave is unforeseeable, then an employee is required to
provide his employer with notice as soon as practicable.
See Cruz
v. Publix Super Mkts., Inc., 428 F.3d 1379, 1382 (11th Cir. 2005).
The notice “must be sufficient to make the employer aware that
the employee needs FMLA-qualifying leave, and the anticipated
timing and duration of the leave.”
Id. at 1383 (internal quotation
marks omitted). The employee “cannot merely demand leave; he
must give the employer a reason to believe that he is entitled to it.”
Id. at 1385. Absent unusual circumstances, an employee must also
comply with an employer’s “usual and customary notice and pro-
cedural requirements for requesting leave.” 29 C.F.R. §§
825.302(d), 825.303(c). Once the employee “gives sufficient notice
to [his] employer that potentially FMLA-qualifying leave is needed,
the employer must then ascertain whether the employee’s absence
actually qualifies for FMLA protection.”
Cruz, 428 F.39 at 1383
.
(holding that the burden to inquire further into the need for leave
does not shift to the employer unless and until the employee pro-
vides sufficient notice).
Here, the district court did not err in granting summary
judgment as to Mr. Blake’s interference claim for a number of rea-
sons.
First, Mr. Blake did not show that his burnout symptoms
rendered him unable to work for more than three whole days, as
required to establish incapacity giving rise to a qualifying condition
under the FMLA.
See Russell, 346 F.3d at 1343; 29 C.F.R. §
2611(12)(B). Nothing in the record suggests that Mr. Blake’s
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12 Opinion of the Court 20-14229
symptoms prevented him from carrying out his duties for more
than three consecutive days. Indeed, Mr. Blake acknowledges that
he attempted to return to work on August 24, 2018, and was “ready
to work mentally and physically”—two days after he told DC
Hackett that he would not continue to work consecutive 48-hour
shifts for the MFD.
See D.E. 32-9 at 8.
Second, even if his testimony created a genuine issue of ma-
terial fact as to whether his symptoms rose to the level of an FMLA-
qualifying condition, Mr. Blake did not show that the City had
no-
tice of a qualifying condition. This is because, as Mr. Blake admits,
(1) he never requested leave for any burnout related symptoms
prior to August 22, 2018; and (2) his statements to DC Hackett that
he “couldn’t do it anymore” and that he “would turn [his] stuff in
if [he] needed to” conveyed his intent to resign.
See D.E. 29-1 at
54:20–23; 82:3–11. As to the latter, such bare statements cannot rea-
sonably be said to have apprised the City of the need to take time
off for a serious health condition, and therefore, do not amount to
legally sufficient notice under the FMLA.
See Cruz, 428 F.3d at
1385. Mr. Blake, moreover, was clearly aware of the MFD’s proce-
dures for providing notice of a need for/requesting FMLA leave,
having exercised his right to FMLA leave only six months prior to
his exchange with DC Hackett.
On appeal, Mr. Blake argues that the district court erred in
ruling that he failed to show that he provided the City with ade-
quate notice of his need to take FMLA leave because it “disregards
and overlooks” the significance of (1) the MFD’s “longstanding
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20-14229 Opinion of the Court 13
record of mandating excessive overtime;” and (2) Mr. Blake’s “dis-
cussions with DC Hackett; the entirety of DC Hackett’s Memo to
AC Bozeman; DC Hackett’s discussions with [Mr.] Blake’s superi-
ors; [and] DC Hackett’s discussions with members of the MFD’s
Peer Support Team.” Appellant’s Br. at 33.
In Mr. Blake’s view, the City had sufficient notice of
his need
to take FMLA leave because the MFD was aware that working con-
secutive 48-hour shifts could cause
any firefighter assigned to para-
medic duty to suffer acute stress, burnout, PTSD, and other physi-
cal and mental distress.
See id. at 38. Mr. Blake also takes issue with
the district court’s ruling because it does not give due weight to
declarations and memoranda documenting discussions that fol-
lowed his exchange with DC Hackett on the morning of August 22,
2018, even though they do not reflect that Mr. Blake ever expressed
an intent, desire, or need to take leave.
Id.
The FMLA, however, does not require employers to “divine
unspoken (and even unthought) requests for [FMLA] leave.”
Paasch v. City of Safety Harbor, 915 F.Supp. 315, 321
(M.D.Fla.1995),
aff'd, 78 F.3d 600 (11th Cir. 1996). Indeed, even the
evidence that Mr. Blake points to suggests that he expected the
MFD to transfer him to a non-paramedic assignment or potentially
refer him to the EAP—not that he would be placed on leave.
Mr. Blake’s argument that the City should have investigated
whether his condition qualified for FMLA protection fails for the
same reason. The City is required to ascertain whether an em-
ployee’s absence or requested leave qualifies for FMLA protection
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14 Opinion of the Court 20-14229
only if an employee has provided sufficient notice that potentially
FMLA-qualifying leave is needed.
See Cruz, 428 F.3d at 1383. The
City is not required to ascertain whether an employee who is
not
absent or who has
not requested leave is entitled to FMLA leave.
See id.
B
Absent direct evidence of an employer’s retaliatory intent,
courts evaluate FMLA retaliation claims under the burden-shifting
framework established in
McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). The employee must first establish a
prima
facie case by showing that (1) he engaged in statutorily protected
conduct; (2) he suffered an adverse employment action; and (3) the
adverse action was causally related to the protected conduct.
Strickland, 239 F.3d at 1207
.
If the employee establishes a
prima facie case of retaliation
and the employer articulates a “legitimate, nondiscriminatory rea-
son” for the adverse action, the employee must then show that the
employer’s reasons were pretextual by presenting evidence suffi-
cient to permit a reasonable factfinder to conclude that the reasons
given by the employer were not the real reasons for the adverse
action.
See Schaaf v. SmithKline Beecham Corp., 602 F.3d 1236,
1243-44 (11th Cir. 2010).
Regarding the second
prima facie element, a constructive
discharge can constitute an adverse action.
See Akins v. Fulton
Cnty., Ga., 420 F.3d 1293, 1301–02 (11th Cir. 2005) (First
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20-14229 Opinion of the Court 15
Amendment retaliation claim). An employee has been construc-
tively discharged when his employer “imposes working conditions
that are so intolerable that a reasonable person in the employee’s
position would have been compelled to resign.”
Fitz v. Pugmire
Lincoln-Mercury, Inc., 348 F.3d 974, 977 (11th Cir. 2003) (internal
quotation marks omitted). This may occur where an employer
forces the employee’s resignation by coercion or duress, or where
the employer obtains the resignation by deceiving or misrepresent-
ing a material fact to the employee.
Hargray v. City of Hallandale,
57 F.3d 1560, 1568 (11th Cir. 1995).
This standard is higher than the standard for proving a hos-
tile work environment.
See Hipp v. Liberty Nat. Life Ins. Co., 252
F.3d 1208, 1231 (11th Cir. 2001) (quotation marks omitted). Em-
ployee resignations, moreover, are presumed to be voluntary.
Har-
gray, 57 F.3d at 1568.
See also Venero v. City of Tampa, Fla., 830
F. Supp. 1457 (M.D. Fla. 1993),
aff’d, 40 F.3d 389 (11th Cir. 1994).
And “the mere fact that the choice is between comparably unpleas-
ant alternatives . . . does not of itself establish that a resignation was
induced by duress or coercion, hence, was involuntary.”
Hargray,
57 F.3d at 1568 (holding that employee’s decision to resign was vol-
untary even where employer threatened he would face criminal
charges if he failed to do so).
Here, the district court did not err in granting summary
judgment as to Mr. Blake’s FMLA retaliation claim. First, Mr. Blake
did not offer any direct evidence that the City was motivated by an
impermissible or discriminatory animus. Second, Mr. Blake did not
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16 Opinion of the Court 20-14229
present evidence to show (or permit a jury to find) that he engaged
in statutorily protected conduct. As discussed earlier, in his deposi-
tion Mr. Blake acknowledged that he never told anyone affiliated
with the City about any FMLA-qualifying condition, nor did he re-
quest FMLA leave for such a condition before resigning. Mr. Blake
also failed to show that his symptoms rose to the level of a qualify-
ing condition under the FMLA, which requires incapacity for more
than three whole days.
See Russell, 346 F.3d at 1343; 29 C.F.R. §
825.115(a).
Importantly, Mr. Blake never asked for nor expressed a need
or intent to take leave—he resigned. Once the City accepted his
resignation, that terminated its obligations to provide him FMLA
benefits.
See 29 C.F.R. § 825.311(b) (“If an employee gives unequiv-
ocal notice of intent not to return to work, the employer’s obliga-
tions under FMLA to maintain health benefits . . . and to restore
the employee cease.”).
Third, Mr. Blake has failed to advance any evidence that his
resignation was the result of a constructive discharge that could
constitute an adverse action. Specifically, there was no evidence
that Mr. Blake’s resignation was induced by duress, coercion, de-
ception, or misrepresentation of a material fact. Indeed, the evi-
dence demonstrated that Mr. Blake’s resignation was motivated by
dissatisfaction with his working conditions, which were related to
a department-wide paramedic staffing shortage. The mere fact that
Mr. Blake faced a choice between comparable unpleasant alterna-
tives (i.e., resignation and a continuing obligation to work
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20-14229 Opinion of the Court 17
overtime shifts) does not establish that his resignation was involun-
tary.
See Hargray, 57 F.3d at 1568.
There is no need to examine whether the City’s acceptance
of Mr. Blake’s resignation was pretextual because Mr. Blake failed
to make out a
prima facie case of retaliation.
See Schaaf, 602 F.3d
at 1243. However, we note that Mr. Blake did not show (or present
sufficient evidence to create a jury issue) that the City’s reason for
terminating him—his resignation—was false, or that the City actu-
ally accepted his resignation due to a request for FMLA leave, or
any other statutorily protected conduct. As such, Mr. Blake failed
to show pretext as well.
IV
Accordingly, we affirm the district court’s grant of summary
judgment in favor of the City of Montgomery.
AFFIRMED.
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