                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                ___________

                                   No. 08-1192
                                   __________

Talmadge Scobey,                       *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Arkansas.
                                       *
Nucor Steel-Arkansas,                  *
                                       *
            Appellee.                  *
                                  ___________

                            Submitted: December 11, 2008
                               Filed: August 25, 2009 (Corrected August 26, 2009)
                                ___________


Before BYE, BEAM, and SHEPHERD, Circuit Judges.

                                  ____________

SHEPHERD, Circuit Judge.

        Talmadge Scobey appeals the district court’s1 dismissal on summary judgment
of his lawsuit alleging violations of the Family and Medical Leave Act (“FMLA”), 29
U.S.C. §§ 2601 et seq. We affirm.




      1
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
                                         I.

       In 1998, Scobey began working at Nucor Steel in Hickman, Arkansas. From
1999 to 2005, he worked as a “ladle man” at the steel mill, a dangerous and
demanding position that involved the handling of thousands of pounds of molten steel.
This position paid between $80,000 and $90,000 and allowed Scobey to work on a
rotating shift.

      This suit arises from Nucor’s demotion of Scobey to a position in the
company’s shipping department for having incurred four unexcused absences from
April 10-13, 2005, due to drunkenness. Scobey also had two prior unexcused
absences in February 2005. Under Nucor’s attendance policy, on the “fourth
occasion” of an employee’s unexcused absence that employee may be terminated from
the company.

       On Saturday, April 9, 2005, Scobey attempted to contact his direct supervisor,
Kirby Teeter, and left him a message asking him to return Scobey’s call, apparently
without explaining the reason for the call. Although Teeter attempted to return the
call on April 10, he did not speak with Scobey until April 11. Later on April 9,
Scobey called Randy Blakemore, another supervisor and a friend of Scobey’s, and
disclosed that his ex-wife’s father had passed away and asked how to arrange time off
from work in order to attend the funeral. Blakemore told him that he should call into
work and arrange a swap with another employee. Scobey then called Paul Seratt, a
“lead man” at Nucor, to ask if he could take Wednesday, April 13, off from work to
attend the funeral. Serratt told Scobey that he could attend the funeral if, while at
work the next day, he arranged for a co-worker to work his shift.

       On Sunday, April 10, Scobey did not come to work and called Seratt while
intoxicated. Seratt stated that:



                                         -2-
      [Scobey] said he was through and done with us, he was very emotional
      and I was very concerned over his mental state at the time. I asked him
      not to do anything stupid, call in for Monday and come and talk to Kirby
      [Teeter], . . . or myself over what he wanted to do or what his options
      were.

Seratt then called Blakemore to express his concerns about Scobey’s welfare. Later
that night, Scobey called and told Blakemore that he was “done, through” and then
hung up the phone. Worried about Scobey’s state of mind, Blakemore called Scobey
back and then met with him in person. During their conversation Scobey complained
to Blakemore about the pressure Nucor put on its employees.

       On Monday, April 11, Teeter spoke with Scobey concerning his call on April
9. Scobey told Teeter that he had suffered a nervous breakdown and then hung up the
phone without any further explanation. Teeter stated in an affidavit that Scobey’s
speech was slurred and that he had the impression that Scobey was intoxicated. Due
to previous incidents of dishonesty, Teeter did not believe Scobey’s claim of a
nervous breakdown and thought he was making excuses to avoid work because he was
intoxicated. Then, Scobey called Steve Segars, a shift manager at Nucor, and told him
that, due to the death of his former father-in-law and some personal problems, he
would not be back at work for a while. Next, Scobey drove to Seratt’s house and
returned a ladder he had borrowed, but refused to speak with him. On April 12,
Scobey did not show up at work and did not contact anyone at Nucor.

        On April 13, Scobey missed work for the fourth consecutive day. He called and
left a message with Kellie Crain, Nucor’s Human Resources Manager and the person
in charge of designating FMLA leave, saying that he would call her the next day. On
April 14, Scobey called Blakemore and told him that he could not recall the previous
four days and that he wanted some help. Blakemore told Scobey to contact HR
Manager Crain. However, Scobey and Crain were unable to reach each other until
April 19. On April 15, Scobey visited a physician. The physician diagnosed Scobey

                                         -3-
with hypertension, but did not mention depression or alcoholism and did not state that
he needed time off from work. When Scobey and Crain spoke on April 19, Scobey
told Crain that he had an alcohol problem and that he was depressed. Crain set up an
appointment with the Employee Assistance Program (“EAP”) for the next day.

       On April 20, Scobey was assessed at Nucor’s EAP, which referred him to
Lakeside Behavioral Health System for inpatient treatment of alcoholism and
depression. On April 26, Lakeside discharged Scobey and transferred him to
outpatient care following diagnoses for alcohol dependence, alcohol withdrawal,
depression, post-traumatic stress disorder, hypertension, and job/family impairment.
Scobey terminated his outpatient care before its completion. Despite this, Nucor’s
EAP told Crain that Scobey had completed his initial treatment program. Nucor did
not designate Scobey’s absences for treatment as FMLA leave, but designated it as
paid leave from the company.

       On May 20, Scobey met with Nucor’s plant manager, Sam Commella, to
determine the appropriate discipline. During the meeting, Commella reminded
Scobey that Nucor’s absenteeism policy permitted termination after four consecutive,
unexcused absences. Although he admitted to having a “taste” of beer a few days
earlier, Scobey asked for a second chance. Commella agreed that Scobey had made
efforts to improve his behavior, and that he could continue his employment with
Nucor. However, Commella suspended Scobey for three days and demoted him to an
entry-level position in Nucor’s shipping department. This new position resulted in a
40-50 percent reduction in Scobey’s pre-demotion pay and required that he work the
night shift. Scobey now states that he interpreted his demotion as an attempt by Nucor
to force him to quit. Nonetheless, Scobey did not object at the time to his demotion
and, during the first two weeks of his new position, he received a pay raise. Soon
thereafter and without notifying Nucor of his intent to leave, Scobey stopped coming
to work.



                                         -4-
       Scobey then sued Nucor, asserting claims of interference and discriminatory
retaliation under the FMLA. The district court dismissed both claims on summary
judgment. The court dismissed his interference claim on the ground that Scobey had
failed to provide notice that his four absences from April 10 to 13 might be FMLA-
qualifying leave. The court dismissed his retaliation claim on the ground that there
was no genuine dispute as to whether Nucor demoted Scobey for absences that were
not protected by the FMLA.

                                           II.

       We review a grant of summary judgment de novo. Battle v. United Parcel
Serv., Inc., 438 F.3d 856, 864 (8th Cir. 2006). Summary judgment is appropriate “if
the pleadings, the discovery and disclosure materials on file, and any affidavits, show
that there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). In reviewing the grant of
summary judgment, we view the evidence in favor of the non-moving party. Battle,
438 F.3d at 864.

       “Under the [FMLA], an eligible employee is entitled to up to twelve weeks of
unpaid leave during a twelve-month period ‘[b]ecause of a serious health condition
that makes the employee unable to perform the functions of the position of such
employee.’” Rask v. Fresenius Med. Care N. Am., 509 F.3d 466, 471 (8th Cir. 2007)
(quoting 29 U.S.C. § 2612(a)(1)(D)). “A ‘serious health condition’ is any ‘illness,
injury, impairment, 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.’” Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008)
(quoting 29 U.S.C. § 2611(11)). Under our case law,

      [t]here are two types of claims under the FMLA: (1) “interference” or
      “(a)(1)” claims in which the employee alleges that an employer denied


                                          -5-
      or interfered with his substantive rights under the FMLA and (2)
      “retaliation” or “(a)(2)” claims in which the employee alleges that the
      employer discriminated against him for exercising his FMLA rights.

Id. (quotation omitted) (citing 29 U.S.C. § 2615(a)(1)-(2)). But see id. at 913-14
(Colloton, J., concurring) (arguing that claims alleging retaliation against an employee
for exercising his or her FMLA rights are properly understood as interference claims
under section 2615(a)(1), not discrimination claims under section 2615(a)(2)). Scobey
appeals the summary dismissal of his interference and retaliation claims.

      “In order to state a claim for interference under the FMLA, [Scobey] must have
given notice of [his] need for FMLA leave.” Phillips, 547 F.3d at 909. Although the
FMLA statute does not define the type and timing of the notice required when the
need for leave is unforeseeable, the Department of Labor’s (“DOL’s”)

      regulations provide some considerable guidance, and they are generous
      to employees. Notice must be given “as soon as practicable,” but “the
      employee need not explicitly assert rights under the FMLA or even
      mention the FMLA” to require the employer to determine whether leave
      would be covered by the FMLA.

Rask, 509 F.3d at 471 (quoting 29 C.F.R. § 825.303(a), (b) (2007)). Although recent
amendments to the DOL’s regulations have somewhat curtailed this generosity, the
regulation in place during the events giving rise to this lawsuit stated that, after notice
had been given

      [t]he employer will be expected to obtain any additional required
      information through informal means. The employee or spokesperson
      will be expected to provide more information when it can readily be
      accomplished as a practical matter, taking into consideration the
      exigencies of the situation.



                                           -6-
29 C.F.R. § 825.303(b) (2005).2

        However, even before the recent amendments, we have held that an employee
must do more than merely call in sick to trigger an employer’s duties under the
FMLA. “Although the employee need not name the statute, he must provide
information to suggest that his health condition could be serious.” Woods v.
DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (citation omitted). Cf.
Thorson v. Gemini, Inc., 205 F.3d 370, 381 (8th Cir. 2000) (“An employee need not
invoke the FMLA by name in order to put an employer on notice that the Act may
have relevance to the employee’s absence from work.”); Browning v. Liberty Mut.
Ins. Co., 178 F.3d 1043, 1049 (8th Cir. 1999) (“Under the FMLA, the employer’s
duties are triggered when the employee provides enough information to put the
employer on notice that the employee may be in need of FMLA leave.”). “Employees
thus have an affirmative duty to indicate both the need and the reason for the leave,
and must let employers know when they anticipate returning to their position.”
Woods, 409 F.3d at 990-91 (quotation omitted). “The employer must be made aware
that the absence is due to a serious illness so the employer can distinguish it from
ordinary ‘sick-days,’ or even malingering, as a type of unusual and privileged
absence.” Rask, 509 F.3d at 472. “To hold otherwise would create an unreasonable
burden for employers, requiring them to investigate virtually every absence to ensure
that it does not qualify for FMLA leave.” Id.


      2
       The current version of section 825.303(b), which became effective on January
16, 2009, puts in place a more stringent notice standard—

      [T]he employee must specifically reference either the qualifying reason
      for leave or the need for FMLA leave. Calling in “sick” without
      providing more information will not be considered sufficient notice to
      trigger an employer’s obligations under the Act. The employer will be
      expected to obtain any additional required information through informal
      means. An employee has an obligation to respond to an employer’s
      questions designed to determine whether an absence is potentially
      FMLA-qualifying.

                                         -7-
       The FMLA was designed to protect, in relevant part, the reasonable medical
needs of employees with serious health conditions within the limits set by the
employer’s legitimate interest in managing its business. See 29 U.S.C. § 2601(a)(4),
(b)(2), (b)(3); Woods, 409 F.3d at 991. As a means of balancing the employee’s
reasonable needs and the employer’s legitimate interests, an employer may, upon
receiving timely and adequate notice of an employee’s possible incapacity, request a
medical certification form stating

      (1) the date on which the serious health condition commenced; (2) the
      probable duration of the condition; (3) the appropriate medical facts
      within the knowledge of the health care provider regarding the condition;
      . . . [and] [4] for purposes of leave [in the instant case], a statement that
      the employee is unable to perform the functions of the position of the
      employee[.]

29 U.S.C. § 2613(b)(1)-(b)(3), (b)(4)(B). If it doubts the validity of the first medical
certification for any reason, an employer may, at its own expense, seek a second
opinion and, when there is a conflict between the first and second certifications, it may
seek a third. Id. § 2613(c)(1), (d)(1).

       Scobey contends that he provided Nucor with sufficient and timely notice that
he had a serious health condition requiring FMLA leave during the four unexcused
absences from April 10-13. Having received proper notice, he argues, Nucor failed
to follow the FMLA’s procedures designed to protect employers by not requesting a
medical certification form from a health care provider corroborating that Scobey was
unable to work. Scobey claims that this alleged failure requires that Nucor be
estopped from denying that he had a serious medical condition protected by the
FMLA.

      Scobey’s principal case in support of this argument is Thorson v. Gemini, Inc.
In Thorson, an employee missed more than three days of work and, during her
absence, provided two notes from her physician stating that she was unable to work.

                                          -8-
205 F.3d at 381. Without requesting a medical certification form, the employer
summarily terminated her employment for violating its attendance policy. Id. The
employer did not request a medical evaluation until the employee filed suit several
months later. Id. at 382. In that situation, this court held that the employee’s
submission of two doctor’s notes advising that she should not work put the employer
on notice that she might be eligible for FMLA-protected leave. Id. at 381. This notice
triggered the employer’s responsibility to count the employee’s absence as FMLA
leave or inquire further into the matter by requesting a medical certification form. Id.
381-82. Having failed to make further inquiries, the employer could not use later
medical evaluations to create a genuine issue of material fact as to the validity of the
notes from the employee’s physician excusing her from work. Id. at 382.

        Whether Thorson applies, however, depends first and foremost on whether
Scobey put Nucor on notice that he might be entitled to leave under the FLMA. Only
if he provided adequate notice do we need to examine whether Nucor defaulted on any
obligation to inquire further. Having examined the record, we conclude that there is
no genuine issue of material fact that Scobey did not adequately put Nucor on notice.

       Because the DOL’s regulations state that the timeliness and adequacy of notice
are standards dependent on the facts of each case, we must look at the totality of the
surrounding circumstances to determine whether sufficient notice was given. See 29
C.F.R. § 825.303(b). For instance, in Spangler v. Federal Home Loan Bank of Des
Moines, the employer had known for many years that the employee’s depression had
periodically necessitated time off from work. 278 F.3d 847, 852-53 (8th Cir. 2002).
Within this context, the employee’s statement that she would be absent from work
because of her “depression again” put the employer on notice that she might be
entitled to FMLA leave. Id. at 852.

       In other circumstances we have found notice to be insufficient. In Woods, we
held that notice must contain an explanation of the condition rendering the employee
unable to work in order to adequately apprise the employer that the condition may be

                                          -9-
protected by the FMLA. 409 F.3d at 986, 992-93 (holding that two doctor’s notes
stating that employee was “advised to remain off work” were inadequate because they
did not mention the nature of the illness).3 Similarly, in Rask, we held that an
employee who informed her employer that she had been diagnosed with depression
had not given adequate notice because “[d]epression . . . is a condition with many
variations” and the employer would need additional details before being on notice that
her condition rendered her unable to work. 509 F.3d at 472-73. Rask distinguished
Spangler on the ground that the employer had no previous knowledge of the
employee’s depression and lacked any indication that it was so serious as to render her
unable to work. Id. at 473.

       Scobey argues that Woods and Rask impose burdens on employees in excess
of the minimal notice obligations in 29 C.F.R § 825.303. Citing a Seventh Circuit
case, Scobey argues that “probable cause” is the appropriate standard for determining
adequacy of notice. See Aubuchon v. Knauf Fiberglass, GMBH, 359 F.3d 950, 953
(7th Cir. 2004) (“[T]he employee’s duty is merely to place the employer on notice of
a probable basis for FMLA leave.”). Whether the Seventh Circuit uses a standard
different in any significant respect from the standard used in this circuit, we need not
address. We are bound by our case law, not that of one of our sister circuits.

       Scobey also asks us to adopt the “constructive notice” doctrine, which states
that “either an employee’s inability to communicate his illness to his employer or clear
abnormalities in the employee’s behavior may constitute constructive notice of a
serious health condition.” Stevenson v. Hyre Elec. Co., 505 F.3d 720, 726 (7th Cir.
2007) (citing Byrne v. Avon Prods., 328 F.3d 379, 381-82 (7th Cir. 2003)). We have
serious doubts about the continuing validity of constructive notice in the FMLA

      3
        This court took a different approach in Thorson v. Gemini, Inc., where we held
that an employee provided adequate notice when she submitted two notes merely
stating “no work.” 205 F.3d at 374, 381. However, we do not need to harmonize the
contradiction between Thorson, on the one hand, and Rask and Woods, on the other,
because Scobey failed to provide adequate notice under either standard.

                                         -10-
context. The Seventh Circuit in Byrne v. Avon Prods. relied on a previous version of
29 C.F.R. § 825.303(a), which stated that, when leave is unforeseeable, “[i]t is
expected that an employee will give notice to the employer within no more than one
or two working days of learning of the need for leave, except in extraordinary
circumstances where such notice is not feasible.” 328 F.3d at 382 (adding emphasis).4
Based on this “extraordinary circumstances” exception, the court in Byrne concluded
that an employee’s aberrant or unusual behavior could, in some cases, be “itself notice
that something had gone medically wrong, or perhaps [excuse] notice . . . .” Id. at
381. However, the DOL has subsequently deleted the sentence relied on by the court
in Byrne and replaced it with language that currently reads: “[i]t generally should be
practicable for the employee to provide notice of leave that is unforeseeable within the
time prescribed by the employer’s usual and customary notice requirements applicable
to such leave.” 29 C.F.R. § 825.303(a).5 Now that the DOL has nullified the
regulatory basis for the doctrine, we decline to create a constructive-notice exception
to an employee’s “affirmative duty,” see Woods, 409 F.3d at 990-91, to notify his or
her employer of the need for leave that might be FMLA-qualifying.

       Prior to his four absences from April 10 to April 13, 2005, Scobey had incurred
two unexcused absences in February of the same year. Scobey initially requested a
day off to attend a funeral, which is not protected by the FMLA. See Andonissamy
v. Hewlett-Packard Co., 547 F.3d 841, 852 (7th Cir. 2008) (employee request to attend
nephew’s funeral is not a request for FMLA leave). He then called in while
intoxicated and stated that he wanted to terminate his employment at Nucor. This was
not notice that he needed time off from work. This was notice that he intended to
terminate his employment at Nucor. He was intoxicated throughout the four days of
his absence and cannot remember any details of this period. While absences for


      4
       Although the text of the FMLA statute does not provide a notice requirement
for unforeseeable leave, the Secretary of Labor has authority to promulgate the
requirements set forth in section 825.303 under 29 U.S.C. § 2654.
      5
       The amended section became effective on January 16, 2009.

                                         -11-
treatment of alcoholism are protected by the FMLA, absences caused by the use of
alcohol are not. See Darst v. Interstate Brands Corp., 512 F.3d 903, 908 (7th Cir.
2008) (“[A]bsence because of the employee’s use of the substance, rather than for
treatment, does not qualify for FMLA leave.”). Furthermore, Scobey had several
conversations, both over the telephone and in person, with Nucor’s representatives
during this period. During these conversations, Scobey made no mention of anything
that could even plausibly have constituted notice of a need for FMLA leave until April
11, when he remarked to his supervisor Kirby Teeter that he believed he was having
a “nervous breakdown” and was “f***ed up.” Although he acknowledges that
intoxication is not a serious health condition protected by the FMLA, Scobey argues
that such comments should have demonstrated to Nucor that his inebriated state was
a manifestation of his underlying depression. However, these comments—especially
in the context of Scobey’s previous unexcused absences, drunken behavior, and
shifting explanations of why he could not come to work—were inadequate to apprise
Nucor of any possible obligations under the FMLA. Moreover, even if we assume,
for purposes of summary judgment, that Scobey’s remark on April 14 to Blakemore
that he “wanted to get some help” constituted sufficient notice that Scobey might need
some time off in the future for treatment for alcoholism or depression, that remark did
not alter the fact that Scobey’s immediately preceding absences were not, and did not
appear to Nucor to be, protected by the FMLA.

      Under our prior cases, Scobey has failed to show that he provided adequate
notice to Nucor that he had a “serious health condition” rendering him “unable to
work.” The cases in which we have held that notice was not inadequate, as a matter
of law, involved situations in which the employee provided more information to the
employer than Scobey provided to Nucor. See Phillips, 547 F.3d at 919-11 (genuine
issue of material fact whether notice was adequate where employer knew that
employee needed time off for a doctor’s visit relating to a recent accident and
employer prepared FMLA paperwork in anticipation of possible need for additional
leave); Spangler, 278 F.3d at 852 (genuine issue of material fact whether employee’s
statement that she needed to miss work due to “depression again” was adequate notice

                                         -12-
where employer knew that employee’s condition had required previous absences);
Thorson, 205 F.3d at 374, 381-82 (two doctor’s notes stating “no work” without
further explanation constituted sufficient notice). Furthermore, we have also held
notice to be inadequate when the employee provided more information than Scobey
provided to Nucor. See Rask, 509 F.3d at 473 (holding that a physician’s diagnosis
of depression, absent details about its severity and resulting incapacity, was
inadequate notice); Woods, 409 F.3d at 986, 992-93 (holding that two doctor’s notes
excusing an employee from work failed to provide sufficient notice because they did
not describe the employee’s condition).6 Scobey has fallen short of both what is
sufficient, as in Phillips, Spangler and Thorson, and what is necessary, as in Rask and
Woods, to create a genuine issue of material fact as to whether he put Nucor on notice
of a possible need for FMLA leave. There is no evidence that Nucor had any prior
knowledge of Scobey’s alcohol problem, and, even if there were, the FMLA only
protects absences for alcohol treatment, not alcohol use. Scobey’s statements and
behavior put Nucor on notice only that he was upset and intoxicated. Thus, Scobey
provided Nucor with no basis on which to “distinguish [his absence] from ordinary
‘sick-days,’ or even malingering, as a type of unusual and privileged absence.” Rask,
509 F.3d at 472.

      Having failed to provide notice, Scobey’s claim that Nucor interfered with his
FMLA rights by demoting him for his four unexcused absences from April 10 to April
13 must fail. For this reason, it is unnecessary to reach Scobey’s other arguments
concerning whether he has successfully demonstrated that he had a serious health
condition protected by the FMLA.7 We can only reach a claim that an employer

      6
       Scobey claims that he provided a note from the physician he visited on April
15. However, the doctor diagnosed Scobey with hypertension, not depression or
alcoholism, and did not say that his hypertension necessitated the absences.
      7
        Scobey argues that Nucor committed an additional violation of the FMLA
when it neither designated his subsequent treatment for alcoholism and depression as
FMLA leave nor did it request a medical certification form when he informed HR
Manager Crain that he needed such treatment. Scobey does not allege this violation

                                         -13-
interfered with an employee’s right under the FMLA to take leave for a serious health
condition if that employee first demonstrates that he or she notified the employer of
the possible need for leave. Having failed to provide adequate and timely notice, any
argument about whether Scobey actually had a serious health condition during the
relevant time period is moot.

                                          III.

       Scobey’s retaliation claim fails for largely the same reasons as his interference
claim. He claims that his four unexcused absences were merely a pretext for demoting
him in retaliation for using paid leave to obtain treatment for his alcoholism and
depression.8 However, there is no evidence supporting this claim and the four
absences, especially when combined with his two previous unexcused absences, were
enough to warrant termination under Nucor’s attendance policies. Thus, there is no
genuine issue of material fact as to whether Nucor was entitled to demote Scobey for
the absences he incurred from April 10 to April 13. Having failed to show that he was
demoted for absences protected by the FMLA, Scobey cannot show that Nucor
“discriminated against him for exercising his FMLA rights.” Phillips, 547 F.3d at 909
(quotation omitted).9 Furthermore, having failed to make out a prima facie case for


as a separate claim, however. He alleges that had Nucor requested a medical
certification form, he would have been able to show retroactively that he had a serious
health condition qualifying for FMLA protection from April 10 to April 13.
      8
        The parties agree that the leave Scobey took to obtain in-patient treatment for
his alcoholism and depression was FMLA-qualifying.
      9
        The obvious similarity between Scobey’s “interference” and “retaliation”
claims calls into question our case law articulating the two claims available under the
FMLA. See, e.g., Phillips, 547 F.3d at 909. An interference claim that an employee
suffered an adverse employment action because he or she took leave protected by the
FMLA is difficult to distinguish from a retaliation claim that an employer
discriminated against such an employee for exercising his or her FMLA rights. 29
U.S.C. § 2615(a)(1) states that “[i]t shall be unlawful for any employer to interfere

                                         -14-
retaliation, there was no need for the district court to consider whether Nucor’s stated
reasons for demoting Scobey were a pretext under the burden-shifting framework for
FMLA retaliation claims. See id. at 912.

                                         IV.

       Accordingly, we affirm the district court’s dismissal on summary judgment of
all of Scobey’s claims.

BYE, Circuit Judge, dissenting.

       The majority is correct in the context of Scobey not being entitled to FMLA
leave on the basis of alcohol use, as opposed to alcohol abuse treatment. See 29
C.F.R. § 825.114(d). However, I believe there is a genuine issue of material fact as
to whether Scobey put Nucor on notice as to his being in need of FMLA leave on the
basis of severe depression. I therefore dissent.

      Scobey gave Nucor sufficient notice as to his being in need of FMLA leave on
the basis of severe depression because he twice stated he was having a "nervous
breakdown." See Webster's College Dictionary 888 (2d ed. 2000) (defining "nervous
breakdown" as "any disabling mental or emotional disorder requiring treatment");
Oxford English Dictionary 515 (2d ed. 1989) (defining "nervous breakdown" as a
"term for any severe or incapacitating emotional disorder"). In addition, his other


with, restrain, or deny the exercise of or the attempt to exercise, any right provided
under [the FMLA].” (emphasis added). The FMLA also provides an additional cause
of action against employers who “discharge or in any other manner discriminate
against any individual for opposing any practice made unlawful by [the FMLA].” 29
U.S.C. § 2615(a)(2). This prohibits retaliation of a sort, but not retaliation for an
employee’s exercise of his or her FMLA rights. Under the statute, retaliation for
exercising one’s FMLA rights appears to be just one aspect of what is meant by
“interference,” not a separate claim. See Phillips, 547 F.3d at 913-15 (Colloton, J.,
concurring).

                                         -15-
statements (that he was "through," "f*cked up," and "had some issues"), while they
could have just as easily related to his alcohol use and intoxication, led Nucor
employees to express concern over his mental state and even possible suicide. For
example, Serratt expressed concern over Scobey's mental state, which he relayed to
Blakemore. Blakemore was so concerned over Scobey's mental health, including
possible suicidal thoughts, that he went to Scobey's house to check on him. And,
when Scobey finally spoke with HR Manager Crain, Scobey told her he had both
alcohol and mental problems. These statements indicated more than generic
depression and gave Nucor notice that Scobey's absences may be the result of a
serious health condition entitled to FMLA protection.

       Scobey's notice was also timely. Nucor argues Scobey did not give notice he
needed treatment until April 14, which it claims was beyond the one or two days
notice contemplated by the statute. See Woods v. DaimerChrysler Corp., 409 F.3d
984, 991 (8th Cir. 2005) (citing 29 C.F.R. § 825.303(a)). I disagree. Rather, the
statements indicating a possible need for leave for mental health issues began much
earlier. Scobey first expressed his belief he was having a "nervous breakdown" on
April 11, only one day after his first absence. His other comments which led Nucor
employees to express concern over his mental state began on the day of his first
absence, April 10. Therefore, Scobey commenced giving notice on April 10, and this
notice became sufficient, at the latest, on April 11, when he stated he was having a
"nervous breakdown." While it is probable Nucor simply believed these statements
to be excuses or exaggerations because of his obvious intoxication, the statute was
satisfied because Scobey gave enough information to indicate a possibility he was
incapacitated from work because of mental problems. Once Scobey raised this
possibility, it was then incumbent upon Nucor to require substantiation to differentiate
between the possible causes. See Thorson v. Gemini, Inc., 205 F.3d 370, 381-82 (8th
Cir. 2000).

      I therefore respectfully dissent.
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