                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 23 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RYAN WESLEY BUCKMAN,                             No. 08-16537

             Plaintiff - Appellant,              D.C. No. 2:06-CV-02005-DGC-
                                                 JJM
  v.

MCI WORLD COM INC.,                              MEMORANDUM *

             Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                       Argued and Submitted March 8, 2010
                            San Francisco, California

Before: HUG, REINHARDT and BYBEE, Circuit Judges.

       Ryan Buckman appeals the district court’s grant of summary judgment in

favor of MCI on his claims that MCI wrongfully terminated him in violation of the

Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act

(“ADA”). He also argues that the district court erred by failing to appoint counsel



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
for him and failing to give him adequate notice under Federal Rule of Civil

Procedure 56. We affirm.

      Under the FMLA, employees may take up to twelve weeks of time off for

medical reasons, 29 U.S.C. § 2612(a), and it is unlawful for an employer to

“interfere with, restrain, or deny the exercise of or the attempt to exercise” this

right to take approved leave, id. § 2615(a)(1). Buckman argues that MCI

terminated him in part because he took FMLA leave. The regulations interpreting

the FMLA state that an “employer may require an employee to comply with the

employer’s usual and customary notice and procedural requirements for requesting

leave, absent unusual circumstances.” 29 C.F.R. § 825.302(d). Here, it is

undisputed that MCI’s attendance policy required employees to call in before their

shift if they were going to be absent or tardy. Buckman concedes that on April 19,

2004, he called in forty-eight minutes after his shift began. He fails to offer any

evidence that he was unable to call in before his shift. MCI also presented

undisputed evidence that Buckman had received eleven previous warnings for

violating this and other MCI policies and had been on final warning when he failed

to call in before his shift. Buckman’s claim that he was subject to a more lenient

policy is defeated by the fact that he does not contend that the “more lenient

policy” excused him from calling in timely on days that he would be absent. His


                                           2
claim that MCI was on constructive notice that he was on FMLA leave lacks merit

because it is undisputed that his authorized leave expired on Friday, April 16, and

the FMLA allows an employer to require “an employee to comply with the

employer’s usual and customary notice and procedural requirements for requesting

leave, absent unusual circumstances.” 29 C.F.R. § 825.302(d).

      Because the undisputed evidence establishes that Buckman was discharged

because he failed to call in timely on April 19 after being placed on final warning,

his claim that he was discharged as a result of his Hepatitis C also fails.

      The district court did not err in failing to appoint counsel for Buckman. We

have held that “[m]otions for appointment of counsel under section 1915 are

addressed to the sound discretion of the trial court and are granted only in

exceptional circumstances.” United States v. McQuade, 647 F.2d 938, 940 (9th

Cir. 1981). Buckman presents no argument that his case met the exceptional

circumstances test.

      Finally, the district court informed Buckman of his obligation under Rule 56

to produce authenticated documents to survive summary judgment as required by

Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). The court was not required to

provide further information about which documents Buckman should have

authenticated and submitted.


                                           3
AFFIRMED.




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