Gina Magwood v. Racetrac Petroleum, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12501
____________________
GINA MAGWOOD,
Plaintiff-Appellant,
versus
RACETRAC PETROLEUM, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-01439-VMC
____________________
Before WILSON, J ILL PRYOR , and B RASHER , Circuit Judges.
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2 Opinion of the Court 22-12501
PER CURIAM:
Gina Magwood worked as an engineering assistant for Race-
Trac Petroleum. Magwood, who suffered from stress and anxiety,
took leave for about six weeks. Three days after Magwood re-
turned to work, RaceTrac fired her.
Magwood sued. She claimed that RaceTrac violated the
Family and Medical Leave Act by interfering with her rights and
retaliating against her. She also alleged that RaceTrac violated the
Americans with Disabilities Act by discriminating against her, fail-
ing to accommodate her, and retaliating against her.
RaceTrac moved for summary judgment. The district court
granted RaceTrac’s motion. Magwood now appeals.
We affirm the district court’s summary judgment order.
RaceTrac was entitled to summary judgment on the FMLA inter-
ference claim because Magwood failed to certify her leave. In addi-
tion, RaceTrac was entitled to summary judgment on the ADA dis-
crimination and failure-to-accommodate claims because Magwood
never informed RaceTrac of the potential limitations her disability
imposed and never made a specific request for an accommodation.
The district court also properly granted summary judgment to
RaceTrac on Magwood’s retaliation claims because she failed to re-
but RaceTrac’s legitimate, nondiscriminatory reason for terminat-
ing her.
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22-12501 Opinion of the Court 3
I. BACKGROUND
Magwood worked for RaceTrac as an engineering assistant.
In that role, she worked alongside fellow engineering assistant
Connie Koster, supporting the real estate and engineering teams.
Magwood and Koster split construction invoice processing duties
geographically. In addition to her construction invoices, Magwood
also processed RaceTrac’s remodeling invoices.
Magwood disliked working with Koster. In March 2018, she
complained to her supervisors about sitting near Koster. At that
time, Magwood was supervised by Allen Bell, who was supervised
by Corey Hopkins. Magwood emailed Bell and Hopkins asking to
change seats, writing that it “would really help ease some of the
stress [she felt].” Doc. 77-7 at 2.1 Bell and Hopkins granted her re-
quest, and she moved to sit outside the engineering area. Magwood
appreciated the new seat, saying it would “relieve some of the
stress and anxiety I feel, sitting in my old seat.” Id. at 1.
Five months later, at the end of August 2018, Magwood
emailed Bell, saying “[s]ome personal issues have come about at
home that require my immediate attention so I will not be in today
and I will need to take some time off for the next several weeks as
well.” Doc. 77-39 at 2. She expected to be out “the next 3–4 weeks.”
Id. Bell responded to Magwood the next day but received no reply.
After a week passed, Bell forwarded Magwood’s message to
1 “Doc.” refers to the district court’s docket entries.
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4 Opinion of the Court 22-12501
RaceTrac’s human resources department, which forwarded it to
Krystal Ikner, RaceTrac’s FMLA/ADA benefits administrator.
Ikner tried to contact Magwood, leaving her a voicemail
message. Ikner then emailed Magwood, requesting an FMLA cer-
tification. RaceTrac required employees seeking FMLA leave to
provide a certification from a health care provider concerning the
employee’s need for leave. See 29 U.S.C. § 2613(a) (permitting em-
ployers to require certification). Ikner gave Magwood two weeks
to provide the certification. Magwood struggled to find a doctor
who would fill out the paperwork in those two weeks, so Ikner
granted her extra time. When Magwood realized that her doctor
wanted to see her more times before certifying the leave, she in-
formed Ikner that she would return to work the next Monday.
Magwood never provided the certification.
Meanwhile, at RaceTrac, Ikner updated Bell and Hopkins
about Magwood’s leave, including that Magwood was “currently
working with her [health care provider] to” complete her FMLA
certification. Doc. 77-33 at 1. Bell and Hopkins discussed “if there
was still a need for two engineering assistants,” given “the reduc-
tion in workload.” Doc. 74 at 64. During Magwood’s absence,
Koster “was able to manage all of [the invoices],” without incurring
additional costs. Doc. 67-1 at 25. RaceTrac had also cancelled its
remodeling program and expected remodeling invoices to decrease
in the coming years.
Confident that the job could be done by one person, Hop-
kins analyzed invoicing reports to decide whether to retain
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22-12501 Opinion of the Court 5
Magwood or Koster. That analysis showed that Koster processed
almost 100 more invoices each month than Magwood did. With
the expected decrease in remodeling invoices, which Magwood
had been processing, RaceTrac decided to terminate Magwood.
Magwood returned to work in mid-October, about six
weeks after taking leave. That same day, Bell and Hopkins met
with an employee from human resources to discuss Magwood’s
leave, her seating accommodation, and her work schedule. Some-
time after the meeting, Hopkins made the decision to fire Mag-
wood. Three days later, the human resources employee emailed
Hopkins, recapping the plan to terminate Magwood. The email in-
cluded talking points such as “we are constantly evaluating work-
loads,” “we don’t have the need for two people in this role,” and
“[w]hen you were out on PTO all of your work was transitioned
to another person; when we evaluate the current state we only
have enough work for one person.” Doc. 77-17.
After receiving the email, Hopkins terminated Magwood.
He said that “while she was out, they realized they didn’t need her
anymore.” Doc. 80 at 42 (alterations adopted). RaceTrac eventually
eliminated Koster’s role as well; RaceTrac currently employs no
engineering assistants.
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6 Opinion of the Court 22-12501
Magwood sued RaceTrac, claiming interference and retalia-
tion under the FMLA and discrimination, failure to accommodate,
and retaliation under the ADA.2
RaceTrac moved for summary judgment on all claims. A
magistrate judge recommended granting RaceTrac’s motion. The
magistrate judge wrote that Magwood’s ADA claims failed because
no reasonable jury could conclude that Hopkins perceived Mag-
wood as having a mental impairment, Magwood never showed
that she requested a reasonable accommodation, and she failed to
show she engaged in protected activity. The magistrate judge also
concluded that Magwood’s failure to certify her leave doomed her
FMLA claims. Magwood objected to the recommendation, but the
district court adopted it and granted RaceTrac’s summary judg-
ment motion.
II. STANDARD OF REVIEW
We review de novo the district court’s grant of RaceTrac’s
summary judgment motion, viewing all evidence and drawing all
reasonable inferences in favor of Magwood, the nonmoving party.
See Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1293
(11th Cir. 2006). Summary judgment should be granted only if
2 Magwood demanded a jury trial. RaceTrac moved to strike her jury demand
because she signed a jury waiver during her employment onboarding. The
district court eventually granted RaceTrac’s motion to strike. On appeal, Mag-
wood argues that the district court erred in striking her jury demand, contend-
ing that the jury waiver provision she signed is unenforceable. Because we
conclude that RaceTrac was entitled to summary judgment on Magwood’s
claims, we decline to reach the jury-waiver question.
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22-12501 Opinion of the Court 7
RaceTrac “shows that there is no genuine dispute as to any material
fact” and “is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “[W]e may affirm the district court’s grant of summary
judgment on any adequate ground,” even if it differs from “the one
on which the district court actually relied.” Stewart v. Happy Her-
man’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997).
III. DISCUSSION
Our discussion unfolds in three parts. First, we consider
whether the district court erred when it granted RaceTrac’s sum-
mary judgment motion on Magwood’s FMLA interference claim.
Because Magwood failed to certify her FMLA leave, we conclude
that the district court did not err.
Second, we consider Magwood’s ADA discrimination and
failure-to-accommodate claims. We affirm the district court’s order
because Magwood failed to inform RaceTrac of her disabilities’
limitations and failed to specifically request an accommodation.
Third, we turn to retaliation under both the FMLA and
ADA. The district court did not err in ruling for RaceTrac on these
claims because Magwood failed to show that RaceTrac’s legitimate
reasons for her termination were pretextual.
A. The FMLA Interference Claim
The FMLA entitles eligible employees to 12 weeks of “leave
during any 12-month period . . . [b]ecause of a serious health con-
dition that makes the employee unable to perform the” position’s
functions. 29 U.S.C. § 2612(a)(1)(D). The FMLA prevents employers
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8 Opinion of the Court 22-12501
from interfering with employees’ FMLA rights. Id. § 2615(a)(1)–(2);
O’Connor v. PCA Fam. Health Plan, Inc., 200 F.3d 1349, 1352 (11th Cir.
2000).
But “not all leave requested or taken for medical reasons
qualifies for the FMLA’s protections.” Cash v. Smith, 231 F.3d 1301,
1307 (11th Cir. 2000). For that reason, the FMLA also entitles em-
ployers “to require an employee requesting FMLA leave to obtain
certification” from a health care provider “that attests to the em-
ployee’s eligibility for” the FMLA leave. Id. (citing 29 U.S.C.
§ 2613(a)). If “the employee never produces the certification, the
leave is not FMLA leave.” 29 C.F.R. § 825.313(b).
Magwood’s case is indistinguishable from Cash’s. In Cash,
Brenda Cash provided administrative support to the Alabama
Power Company (“APCO”). Id. at 1303. She suffered from “various
medical problems for years, including” migraines, depression, and
high blood pressure. Id. Her ailments increased. Id. at 1304. So did
her work absences. Id. In response, Cash’s manager contacted
APCO’s disability management department and was told to have
Cash complete FMLA certification paperwork. Id.
Cash never certified her FMLA leave. Id. Her personal phy-
sician, in fact, “indicated that Cash was not disabled and did not
require FMLA leave.” Id. After Cash sued, we held that her failure
to certify her leave thwarted her FMLA discrimination claim.
Like Cash, Magwood “failed to present evidence that she ex-
ercised a protected right under the FMLA.” Id. at 1307. RaceTrac
“requested that” Magwood “have her doctor complete the
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22-12501 Opinion of the Court 9
company’s standard FMLA certification form.” Id. Magwood’s doc-
tor refused to certify her leave, requesting more visits to determine
whether she qualified. RaceTrac granted her more time to certify
her leave, and Magwood decided to return to work and provided a
return-to-work notice. She failed to certify her leave before return-
ing to work or during her brief return. And she failed to certify her
leave after RaceTrac terminated her and before she filed suit. Be-
cause Magwood failed to provide certification “that her medical
conditions met the statutory standard” after RaceTrac requested it
and before suing to vindicate her FMLA rights, “the medical leave
that she did take was not under the auspices of the FMLA.” Id.
Magwood’s attempt to distinguish Cash is unavailing. She ar-
gues that Cash failed to certify her FMLA leave because her physi-
cian indicated that she did not qualify for FMLA leave. Appellant’s
Br. 18 (citing Cash, 231 F.3d at 1307). True, “[n]one of Ms. Mag-
wood’s providers indicated that she was ineligible for FMLA leave.”
Id. Her new physician merely requested more visits to assess
whether she qualified. But Magwood has produced no evidence to
support that this physician, or any other health care provider,
would certify her leave. And before the physician had the chance to
determine whether her leave qualified as FMLA leave, Magwood
sued RaceTrac under the FMLA. On these facts, she has failed to
show that the FMLA protected her leave.
Magwood’s two attempts to avoid this conclusion fail. First,
she argues that the district court’s conclusion flouts our holding
that “a pre-eligible request for post-eligible leave is protected
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10 Opinion of the Court 22-12501
activity.” Appellant’s Br. 16 (quoting Pereda v. Brookdale Senior Living
Cmtys., Inc., 666 F.3d 1269, 1276 (11th Cir. 2012)). But Pereda dealt
with the FMLA’s notice requirement for employees who foresee
leave “based on an expected birth or placement.” 29 U.S.C.
§ 2612(e)(1). It held that “the FMLA regulatory scheme must nec-
essarily protect pre-eligible employees . . . who put their employer
on notice of a post-eligibility leave request” “because the statute
contemplates notice of leave in advance of becoming eligible.”
Pereda, 666 F.3d at 1275. That notice requirement is inapplicable
here. And RaceTrac terminated Magwood after she returned to
work—not after she engaged in statutorily required behavior, such
as giving notice or seeking certification.
Second, she argues that affirming the district court “would
undermine the FMLA’s right to leave” because employers would
terminate “employees who have requested leave” before “the em-
ployee certifies the leave.” Appellant’s Br. 17. But the Code of Fed-
eral Regulations forecloses that possibility. It grants employees 15
calendar days to certify their leave after the employer requests it.
29 C.F.R. § 825.305(b). It also extends that protection period if “it is
not practicable under the particular circumstances to [provide cer-
tification] despite the employee’s diligent, good faith efforts or the
employer provides more than 15 calendar days to return the re-
quested certification.” Id. Here, RaceTrac fired Magwood only af-
ter she returned to work; it did nothing to stymie her attempts to
certify her leave.
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22-12501 Opinion of the Court 11
As Cash makes clear, the failure to certify FMLA leave before
suing is fatal to an FMLA claim. See 231 F.3d at 1307. The federal
regulations tell us the same thing. See 29 C.F.R. § 825.313(b). Mag-
wood could have certified her leave before or after returning to
work. She failed to do either. She could have certified her leave be-
fore suing RaceTrac. But she failed to do so. Because Magwood
never produced the certification, her leave was not FMLA leave. See
29 C.F.R. § 825.313(b). RaceTrac therefore did not interfere with
her right to take additional leave or her reinstatement right. We af-
firm the district court’s grant of summary judgment on this count.3
B. The ADA Discrimination and Failure-to-Accommodate
Claims
We address Magwood’s ADA discrimination and failure-to-
accommodate claims in this section. Both claims fail.
1. The ADA Discrimination Claim
The ADA prevents employers from discriminating against a
qualified individual based on disability. 42 U.S.C. § 12112(a). Mag-
wood must show that she (1) was disabled, (2) was a qualified indi-
vidual, and (3) was discriminated against because of her disability.
Frazier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir. 2016). Magwood
3 Our opinion does not require Magwood to remain on leave until she certifies
that leave. But it does require that she certify her leave before suing to enforce
her FMLA rights.
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12 Opinion of the Court 22-12501
fails on the third prong: she cannot show that RaceTrac discrimi-
nated against her because of her disability.4
To sustain a discrimination claim, Magwood must have
“proof that [RaceTrac] knew of her disability” and must have noti-
fied RaceTrac of “the limitations her mental or physical condition
imposes,” “at least in broad strokes.” Owens v. Governor’s Off. of Stu-
dent Achievement, 52 F.4th 1327, 1335 (11th Cir. 2022).
Magwood says that she notified RaceTrac of her stress and
anxiety in two emails to Bell and Hopkins. Those emails said that
her seating arrangement caused her stress and anxiety but never
discussed any limitations that those conditions might impose. Even
if Bell and Hopkins knew of her conditions, and even if they com-
municated about her conditions with human resources, there is no
evidence that Magwood told them what limitations her conditions
imposed. RaceTrac is therefore entitled to summary judgment on
this claim.
2. The ADA Failure-to-Accommodate Claim
The ADA also prevents employers from failing to provide a
reasonable accommodation to an otherwise qualified, disabled em-
ployee. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.
2001). For RaceTrac to be liable for a failure to accommodate, Mag-
wood must have demanded a specific accommodation from it. See
Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th
Cir. 1999). We have not determined what form an accommodation
4 We assume that Magwood was disabled and qualified for her job.
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22-12501 Opinion of the Court 13
request must take, but we have advised that an employee “need
only identify a statutory disability and explain generally how a par-
ticular accommodation would assist her.” Owens, 52 F.4th at 1336.
Putting aside the seating request that RaceTrac accommo-
dated, we find no other accommodation request in the record.
Magwood argues that her emails with RaceTrac about leave and
her attempt to return the certification show that she was “request-
ing the reasonable accommodation of medical leave to facilitate
her treatment.” Appellant’s Br. 25. But when she sent these emails,
she was already on medical leave. RaceTrac never asked her to cut
that leave short. In fact, it allowed her to take six weeks of leave
when she originally said that she would miss only three to four
weeks of work. Then she voluntarily returned to work. On these
facts, no reasonable jury could find that Magwood asked for an ac-
commodation.
C. The FMLA and ADA Retaliation Claims
Magwood also brought retaliation claims under the FMLA
and ADA. Because she tried to prove that RaceTrac acted with re-
taliatory intent through circumstantial evidence, we look to the
burden-shifting framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).5
5 A plaintiff also may defeat summary judgment by presenting a “convincing
mosaic of circumstantial evidence that would allow a jury to infer intentional
discrimination.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.
2011) (footnote omitted) (internal quotation marks omitted). Magwood raised
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14 Opinion of the Court 22-12501
Under this framework, a plaintiff must first establish a prima
facie case. See id. at 802. Each statute requires Magwood to show
three elements: (1) that she engaged in statutorily protected activ-
ity, (2) that she suffered an adverse action, and (3) that the adverse
action related causally to her protected conduct. See Schaaf, 602 F.3d
at 1243 (FMLA); Frazier-White, 818 F.3d at 1258 (ADA). Once an
employee establishes a prima facie case, the burden shifts to the
employer to articulate a nondiscriminatory basis for its employ-
ment action. See Martin, 543 F.3d at 1268 (FMLA); Stewart, 117 F.3d
at 1287 (ADA). If the employer meets this burden, the inference of
discrimination drops out, and the employee must show by a pre-
ponderance of the evidence that the employer’s reasons were a pre-
text for discrimination. See Martin, 543 F.3d at 1268 (FMLA); Stew-
art, 117 F.3d at 1287 (ADA).
Magwood argues she engaged in statutorily protected activ-
ities when she requested a reasonable accommodation under the
ADA and attempted to take protected FMLA leave. As we ex-
plained, the record fails to support Magwood’s argument that she
made a reasonable accommodation request under the ADA. And
Magwood voluntarily returned to work before RaceTrac fired her.
passing arguments about the convincing-mosaic theory in her opposition to
the summary judgment motion below. But she raises no argument about it on
appeal. We thus do not address the convincing-mosaic theory. See Owens,
52 F.4th at 1337 n.2 (declining to consider convincing-mosaic theory when em-
ployee did not raise any argument about it on appeal).
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22-12501 Opinion of the Court 15
Even if Magwood engaged in statutorily protected activities
and made out a prima facie retaliation case, her retaliation claims
still fail. RaceTrac articulated a legitimate, nondiscriminatory rea-
son for Magwood’s termination. It produced testimony about
Koster’s processing all the invoices, managing them without incur-
ring costs, and performing the work of two people. See Schaaf,
602 F.3d at 1243. RaceTrac learned it had two people doing one per-
son’s job while Magwood was on leave and addressed it when she
returned. See id. at 1243–44.
When deciding between retaining Magwood or retaining
Koster, RaceTrac analyzed its invoicing reports. That analysis re-
vealed that Koster’s monthly invoicing outpaced Magwood’s by al-
most 100 invoices each month. Factoring in the cancellation of the
remodeling program, which had been Magwood’s responsibility,
RaceTrac decided to terminate Magwood rather than Koster.
These business-related factors “indicate that [Magwood’s termina-
tion] was for legitimate reasons unrelated to her FMLA leave; as a
result, [RaceTrac] has satisfied its burden of proving independent,
nondiscriminatory bases for the adverse employment action.” Id. at
1244.
Magwood makes two arguments that these business-related
factors were pretext and that RaceTrac instead fired her in retalia-
tion for exercising her rights under the FMLA or ADA. Neither suc-
ceeds.
First, she argues that the timing of her termination shows
that it was “not wholly unrelated” to her need for FMLA leave.
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16 Opinion of the Court 22-12501
Appellant’s Br. 31. But close temporal proximity generally serves to
establish the casual-connection element of Magwood’s prima facie
case. See Schaaf, 602 F.3d at 1243. Magwood fails to explain how it
rebuts RaceTrac’s legitimate, nondiscriminatory reason for her ter-
mination.
Second, Magwood argues that RaceTrac only discovered the
lack of work because she took leave, thus proving that RaceTrac
terminated her because she took leave. Schaaf rejected this argu-
ment in the FMLA interference context. Id. at 1241–42. And it like-
wise fails in the retaliation context. Although it may be true that if
“Magwood remained at work, she would not have been termi-
nated,” that fact fails to establish that RaceTrac lacked a legitimate
reason. Appellant’s Br. 31. It simply means that RaceTrac discov-
ered a legitimate reason to terminate her while she happened to be
on leave.
IV. CONCLUSION
For the reasons given above, we affirm the district court’s
grant of summary judgment.
AFFIRMED.
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22-12501 WILSON, J., Concurring in part and Dissenting in part 1
WILSON, Circuit Judge, Concurring in part and Dissenting in part:
I join the majority’s disposition of Gina Magwood’s Ameri-
cans with Disabilities Act (ADA) claim.1 However, I part with their
opinion regarding the Family Medical Leave Act (FMLA) interfer-
ence and retaliation claims. After review of the U.S. Code, its inter-
preting regulations, and our precedent, I believe Ms. Magwood
demonstrates a genuine dispute of material fact that precludes
summary judgment under the FMLA.
The “FMLA is intended to allow employees to balance their
work and family life by taking reasonable unpaid leave for medical
reasons.” 29 C.F.R. § 825.101(a) (2013). In fact, the FMLA’s precip-
itating hearings “indicate the powerful productive advantages of
stable workplace relationships, and the comparatively small costs
of guaranteeing that those relationships will not be dissolved while
workers attend to . . . their own serious illness.” Id. § 825.101(c). To
accomplish these purposes, the FMLA provides employees numer-
ous rights, two of which are relevant to this appeal: (1) a total 12
workweeks of leave during any 12-month period due to a serious
health condition, 29 U.S.C. § 2612(a)(1)(D); and (2) reinstatement
to their position, or an equivalent, of employment, 29 U.S.C.
1 But unlike the majority, I would reach the jury demand claim and affirm un-
der the district court’s well-reasoned opinion on that issue as well.
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2 WILSON, J., Concurring in part and Dissenting in part 22-12501
§ 2614(a)(1). An aggrieved employee may enforce these rights via
two primary actions—interference claims2 and retaliation claims.3
The FMLA’s statutory scheme levies two certification re-
quirements upon the FMLA leave process. First, it provides for
FMLA certification. These are forms issued by a health care pro-
vider (HCP) supporting coverage within the statute’s protections.
Second, it affords fitness-for-duty certification. This paperwork,
certified by the employee’s HCP, affirms their ability to resume
work.
Accordingly, the FMLA mandates that employees provide
both certifications upon an employer’s request. For leave involving
a serious health condition, an “employee shall provide, in a timely
manner, a copy of [FMLA] certification to the employer.” 29 U.S.C.
§ 2613(a); see also 29 C.F.R. § 825.305(a) (2013) (“An employer may
require that an employee’s leave to care for . . . the employee’s own
serious health condition . . . be supported by a certification issued
by the [HCP].”). Upon return, “the employee must provide [fit-
ness-for-duty] certification, at the time the employee seeks rein-
statement at the end of FMLA leave taken for the employee’s seri-
ous health condition, that the employee is fit for duty and able to
return to work.” Id. § 825.313(d); see also 29 U.S.C. § 2614(a)(4) (As
a condition of reinstatement, an employer may require an
2 “It shall be unlawful for any employer to interfere with . . . the attempt to
exercise[] any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1).
3 “It shall be unlawful for any employer to discharge . . . any individual for op-
posing any practice made unlawful by [the FMLA].” 29 U.S.C. § 2615(a)(2).
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22-12501 WILSON, J., Concurring in part and Dissenting in part 3
“employee to receive certification from the [HCP] of the employee
that the employee is able to resume work.”). Failure to return
FMLA certification permits the employer to “deny the taking of
FMLA leave,” 29 C.F.R. § 825.305(c)–(d) (2013), and “an employee
who does not provide a fitness-for-duty certification . . . is no longer
entitled reinstatement under the FMLA,” id. § 825.312(e). Thus,
noncompliance with the certification requirements strips employ-
ees of their FMLA leave and reinstatement rights.
But just as the framework imposes certification require-
ments upon the employee, it restricts the employer’s rights to
weaponize them as a shield. While an employee is generally re-
quired to provide certification within 15 calendar days, this win-
dow is extended when “it is not practicable under the particular
circumstances to do so despite the employee’s diligent, good faith
efforts or the employer provides more than 15 calendar days.” Id.
§ 825.305(b); see also id. § 825.313(b) (applying extensions when
“not practicable due to extenuating circumstances”). Furthermore,
an employer has no right to demand a fitness-for-duty certification
unless the employee sought FMLA leave. See id. § 825.312(b) (“An
employer may seek a fitness-for-duty certification only with regard
to the particular health condition that caused the employee’s need for
FMLA leave.”) (emphasis added); 29 U.S.C. § 2614(a)(4) (“As a con-
dition of [reinstatement] for an employee who has taken leave under
section 2612(a)(1)(D), the employer may have a policy that requires
each such employee to receive [fitness-for-duty] certification.”)
(cleaned up and emphasis added). As a result, the FMLA’s language
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4 WILSON, J., Concurring in part and Dissenting in part 22-12501
both allows reasonable extensions and qualifies employers’ re-
quests.
Under this framework, Ms. Magwood’s efforts to return her
FMLA certification forms precludes summary judgment. For over
three months, Ms. Magwood sought counseling for mental health
conditions. When counseling proved insufficient, she sought leave
for potential treatment. During that time, she saw three different
providers who diagnosed her with several serious mental condi-
tions and provided two prescriptions as additional treatment. This
evidence is enough to demonstrate a genuine dispute surrounding
her “serious health condition.” See 29 C.F.R. § 825.113(d) (2013)
(“Mental illness or allergies may be serious health conditions” if the
requirements in § 825.113 are met). Moreover, RaceTrac granted
two extensions for Ms. Magwood’s FMLA certification to see a psy-
chiatrist who may properly complete her forms, supporting a gen-
uine dispute over her “diligent, good faith efforts” and extenuating
circumstances. Id. §§ 825.305(b), 825.313(b).
The sequence of events leading up to Ms. Magwood’s return
to work precludes summary judgment as well. After six weeks of
leave, Ms. Magwood informed RaceTrac that she would return to
work, and RaceTrac requested she complete a fitness-for-duty cer-
tification “due to her medical reasons.” Under the statute, Race-
Trac only holds such a right if the company viewed Ms. Magwood
as taking FMLA leave. See id. § 825.312(b); 29 U.S.C. § 2614(a)(4).
She complied, and her HCP affirmed that she could perform her
job functions with no related restrictions, an FMLA reinstatement
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22-12501 WILSON, J., Concurring in part and Dissenting in part 5
requirement due to RaceTrac’s request. See 29 U.S.C. § 2614(a)(4);
29 C.F.R. § 825.312(a)–(b) (2013). She also notified RaceTrac that
her psychiatrist wanted to see her “a few more times” before com-
pleting the FMLA certification, a reasonable step before a doctor
completes federal forms concerning mental health conditions.
Based on these facts, Ms. Magwood’s evidence supports a genuine
dispute over whether she was in the midst of FMLA certification
and, consequently, whether her FMLA rights were violated.
The majority opinion relies on Cash v. Smith, 231 F.3d 1301
(11th Cir. 2000) for its analysis. It emphasizes Cash’s finding that the
plaintiff there did not provide her company “with certification that
her medical conditions met the statutory standard, and therefore
the medical leave that she did take was not under the auspices of
the FMLA.” Id. at 1307. However, this reliance is misplaced for two
important reasons.
First, the facts in Cash are highly distinguishable from those
here. The plaintiff in Cash provided FMLA certification paperwork
where the HCP specifically indicated—on the FMLA certification it-
self—that she “did not qualify for FMLA leave.” Id. By contrast, Ms.
Magwood was complying with her psychiatrist’s requests in the
midst of completing the FMLA certification forms. Accordingly,
Cash’s inapposite facts make extension to this case inappropriate.
This leads to the majority’s second, and primary, error—
equating FMLA certification forms with fitness-for-duty certifica-
tion. The majority’s holding requires us to extend Cash’s holding
to fitness-for-duty certifications. However, the statutory
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6 WILSON, J., Concurring in part and Dissenting in part 22-12501
framework requires an employee to return fitness-for-duty certifica-
tion that affirms the employee’s fitness and ability to resume work,
29 C.F.R. § 825.313(d) (2013); noncompliance precludes an em-
ployee’s rights to reinstatement, id. § 825.312(e). Cash’s application
in this case would leave employees, diligently seeking FMLA certi-
fication, facing a trap upon return to work with fitness-for-duty cer-
tification in hand. Neither the statute, nor our precedent, mandates
an employee remain at home until their provider completes FMLA
certification. And neither requires a former employee, discharged
when pursuing her FMLA certification in good faith, provide post-
termination certification to invoke her FMLA rights. Because the
statute delineates FMLA certification and fitness-for-duty certifica-
tion as two separate, distinct requirements, extending Cash to these
circumstances is improper.
Finally, my reading of the statute comports with our con-
cerns expressed in Pereda v. Brookdale Senior Living Cmtys., Inc., 666
F.3d 1269 (11th Cir. 2012). In that case, we emphasized that the no-
tice requirements for foreseeable leave4 protected a pre-eligible
employee who notified an employer of her pregnancy. Id. at 1275.
We highlighted that “[n]otice of an intent to use FMLA leave in the
future is distinct but deserving of . . . protection” because “the ad-
vanced notice requirement becomes a trap for newer employees
and extends to employers a significant exemption from liability.”
4 See, e.g., 29 U.S.C. § 2612(e)(2)(B) (For foreseeable leave “based on an ex-
pected birth or placement, the employee shall provide the employer with not
less than 30 days’ notice, before the date the leave is to begin . . . .”).
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22-12501 WILSON, J., Concurring in part and Dissenting in part 7
Id. at 1274–75. As applicable in the present case, unforeseeable
leave mandates similar notice requirements.5 An employer that is
free to terminate an employee who notified their employer of a
serious health condition, sought FMLA certification in good faith,
was granted multiple extensions based upon a doctor’s request, and
complied with fitness-for-duty provisions “is inconsistent with
FMLA and the purpose of the Act.” Id. at 1274.
With neither FMLA nor fitness-for-duty certification pre-
cluding her rights, I would find that Ms. Magwood demonstrated
sufficient evidence to preclude summary judgment on her interfer-
ence claim. As for retaliation, RaceTrac’s email exchanges hoping
to “hold [Ms. Magwood] accountable for not coming to work” or
“take any action” during the course of her leave provide a genuine
dispute over discriminatory pretext. Based upon this record, I be-
lieve Ms. Magwood’s FMLA interference and retaliation claims
should survive summary judgment. I respectfully dissent.
5 See, e.g., 29 C.F.R. § 825.303(a) (2013) (“When the approximate timing of the
need for leave is not foreseeable, an employee must provide notice to the em-
ployer as soon as practicable under the facts and circumstances of the particu-
lar case.”).
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