                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        July 20, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court

 PATRIC IA M cGIN NIS,
               Plaintiff-Appellant,                      No. 06-3238
          v.                                     (D.C. No. 05-CV-2219-JTM )
 EM PLO YER HEA LTH SERVICES,                              (D . Kan.)
 IN C.,
               Defendant-Appellee.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, M cKA Y, and GORSUCH, Circuit Judges.


      Plaintiff-Appellant Patricia M cGinnis, a former customer service

representative w ith Defendant-Appellee Employer H ealth Services, Inc. (“EHS”),

filed an action under the Family and M edical Leave Act, 29 U.S.C. §§ 2601-54

(“FM LA”) against EHS alleging interference with her FM LA-created rights in

violation of 29 U.S.C. § 2615(a)(1). The district court granted summary judgment

for EHS, and this appeal followed.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                  B ACKGROUND 1

      In mid-April 2003, Plaintiff submitted a “Request for Time Off” form to

her supervisor seeking leave on M ay 23, 2003, as well as for June 11, 2003

through June 25, 2003. Plaintiff did not indicate in the space provided on the

form the nature of leave requested— i.e., vacation, personal, or other— nor specify

a reason for the requested time off. Plaintiff testified that she verbally informed

her supervisor that the first two to three days of the June leave were necessary in

order to attend her stepdaughter’s cancer checkup at St. Jude Children’s Research

(“St. Jude”) Hospital in M emphis, Tennessee. The supervisor approved just shy

of three full days of leave, which represented the amount of Plaintiff’s accrued

paid time off. (Pl.’s App. at 144.) On April 22, 2003, Plaintiff emailed her

supervisor that she had “decided at this time to put [her] vacation on hold.”

      EHS policy dictated that any “employee absent from work for two (2)

consecutive days without notifying the department head, immediate supervisor, or

Human Resources department will be considered to have voluntarily resigned

without notice.” (Pl.’s App. at 136.) In addition, full-time EH S employees

accrued twenty vacation days per year. From M ay 2002 to M ay 2003, Plaintiff




      1
         The district court set out in detail the underlying facts and procedural
history of this case, an effort we need not repeat. W e recite only the relevant
facts, viewing the evidence and drawing reasonable inferences therefrom in the
light most favorable to Plaintiff. M einers v. Univ. of Kan., 359 F.3d 1222, 1229
(10th Cir. 2004).

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missed some thirty days of work, including three unauthorized absences from

mid-April through early M ay. As a result, Plaintiff received a verbal warning

from her supervisor. Plaintiff then renewed her vacation request via a typed note

that stated her need to attend her stepdaughter’s June 11-13 cancer checkup.

      Plaintiff also suffered performance problems, including her repeated failure

to turn in call reports, mandatory reports that help EHS management accurately

track employee time. As a result, Plaintiff was twice reprimanded, as recorded on

two “Corrective Counseling/Performance Improvement Plan” forms. The second

reprimand required Plaintiff “to work daily from her office” starting on June 5

and to “check in and out.” Plaintiff then missed two mandatory meetings with her

supervisor on June 9 and June 10. The supervisor informed Plaintiff via email

and voicemail that missing those meetings would be interpreted as abandonment

of her employment. Plaintiff stated that she was unable to attend either meeting

because, despite her in-office restriction, she had to meet clients off-site.

      EHS formally terminated Plaintiff’s employment effective immediately via

letter dated June 11, 2003. Plaintiff left for St. Jude’s Children’s Hospital on the

afternoon of June 11, and on June 13 continued on to Florida for a twelve-day

family vacation.


                                      A NALYSIS

      The district court granted summary judgment for EHS after determining



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that Plaintiff’s notice to EHS of her need for FM LA leave was insufficient. The

district court also determined that, even assuming notice were sufficient, Plaintiff

had failed to establish her prima case for interference. “W e review the grant of

summary judgment de novo, and affirm only if the record, considered in the light

most favorable to the plaintiff, establishes no genuine issue of material fact.”

Jones v. Denver Pub. Sch., 427 F.3d 1315, 1318 (10th Cir. 2005) (citations

omitted).

      To prevail on an interference theory, a plaintiff must establish that: (1) she

was entitled to FM LA leave; (2) some adverse action by her employer interfered

with her right to take FM LA leave; and (3) the employer’s action was related to

the exercise or attempted exercise of her FM LA rights. See M etzler v. Fed. Hom e

Loan Bank of Topeka, 464 F.3d 1164, 1180 (10th Cir. 2006). Because we do not

believe that Plaintiff can establish the necessary causal connection between her

termination and her request for FM LA leave as required by the third prong, even

assuming, arguendo, that her request provided EH S w ith sufficient notice, that

she w as entitled to FM LA leave, and that EHS interfered with her leave, we

affirm the district court’s grant of summary judgment on that ground.

      The record clearly establishes that Plaintiff was terminated for her history

of repeated unauthorized absenteeism as w ell as her obstinate refusal to adhere to

her supervisor’s requests to turn in essential paperw ork or attend mandatory

meetings. Plaintiff blatantly disregarded her supervisor’s warnings of impending

                                         -4-
termination when she failed to attend either scheduled meeting. Plaintiff’s

excuse— that she needed to attend off-site client meetings— was in direct

contravention of the standing order in her remedial action plan that she not leave

the office during the workday. See Bones v. Honeywell, Int’l, Inc., 366 F.3d 869,

878 (10th Cir. 2004) (noting that plaintiff’s “request for an FM LA leave does not

shelter her from the obligation, which is the same as that of any other . . .

employee, to comply with . . . employment policies”); see also Taylor v. Sm ith’s

Food & Drug Ctrs., Inc., 127 Fed. App’x 394, 397 (10th Cir. 2005) (citing Bones

for proposition that plaintiff’s “request for FM LA leave . . ., whether before or

after her effective termination, does not exonerate her from multiple violations of

the no call/no show policy, which established an immediate basis for her

discharge”). M oreover, we observe that in the midst of this series of reprimands

and failures to comply, EHS approved nearly three days of leave, which w as more

than enough to cover Plaintiff’s claimed FM LA absence from the afternoon of

W ednesday, June 11 through Friday, June 13.

      For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment for failure to establish that EHS’s action was related to

Plaintiff’s claimed FM LA rights.

                                                Entered for the Court


                                                M onroe G. M cKay
                                                Circuit Judge

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