                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 3 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ALFRED L. MEDINA,

                Plaintiff-Appellant,

    v.                                                   No. 99-1463
                                                     (D.C. No. 97-M-2502)
    COORS BREWING COMPANY,                                 (D. Colo.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BALDOCK , KELLY , and HENRY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Plaintiff Alfred L. Medina had been employed by defendant Coors Brewing

Company for thirty-one years when Coors terminated his employment due to



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
excessive absenteeism. Mr. Medina brought this action asserting, inter alia, that

his severe depression caused his absences and that Coors’ termination of his

employment violated the Family Medical Leave Act, 29 U.S.C. §§ 2601-2654.

The district court granted Coors’ motion for summary judgment on the FMLA

claim, and Mr. Medina appeals. We review the district court’s grant of summary

judgment de novo, applying the same standard under Fed. R. Civ. P. 56(c) as the

district court.   See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996).

       The relevant facts, viewed in the light most favorable to Mr. Medina, are as

follows. Mr. Medina began missing work in the summer of 1996. In September

1996, Coors gave him a written warning for these absences and referred him to a

counseling program. He continued to miss work in September and early October,

and requested FMLA leave on October 4. On October 8, his doctor recommended

a leave of absence due to severe depression. Coors granted him a paid leave of

absence until December 9, when his doctor released him to return to work.

Mr. Medina did not return to work on December 9, nor did he work the remainder

of that week or the next. The plant was closed the following two weeks.

Mr. Medina used his vacation time to take off the month of January, and was

scheduled to return to work on February 6. When he failed to do so, Coors gave

him a final written warning regarding his absences. He did not show up for work




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on Friday, February 7, or the first three days of the following week. Coors

terminated his employment on February 19 for excessive absenteeism.

      Mr. Medina first contends that the district court erred in granting summary

judgment to Coors because the court found Coors violated his FMLA rights

relative to the paid leave of absence. This contention misinterprets the district

court’s order. The court did not find that Coors violated the FMLA. It found

only that Coors could not retroactively designate the eight-week period as

FMLA-qualifying leave and that this period could not count against the twelve

weeks of leave that Coors was required to make available under the FMLA for

serious health conditions preventing an employee from working.     See 29 U.S.C.

§ 2612(a); 29 C.F.R. § 825.208(a), (c). Moreover, Mr. Medina fails to explain

how Coors’ attempt to retroactively designate the eight-week period as FMLA

leave comprised or related to an adverse employment decision.     See, e.g. , King v.

Preferred Technical Group , 166 F.3d 887, 892 (7th Cir. 1999) (requiring FMLA

plaintiff to prove as part of prima facie case that he suffered adverse employment

action). We thus reject Mr. Medina’s first contention of error.

      Mr. Medina next argues that the district court erred in concluding that he

did not provide adequate notice of his need for FMLA leave following his return

from the leave of absence. FMLA regulations provide that an employee needing

leave that is not foreseeable must notify the employer of the need for leave as


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soon as practicable, i.e., within one or two working days except in extraordinary

circumstances, but the employee does not have to expressly assert rights under or

even mention the FMLA.     See 29 C.F.R. § 825.303(a), (b). “If the employer does

not have sufficient information about the employee’s reason for taking leave, ‘the

employer should inquire further to ascertain whether the paid leave is potentially

FMLA-qualifying.’”    Manuel v. Westlake Polymers Corp.    , 66 F.3d 758, 762

(5th Cir. 1995) (quoting 29 C.F.R. § 825.208(a)). “The critical question is

whether the information imparted to the employer is sufficient to reasonably

apprise it of the employee’s request to take time off for a serious health

condition.” Id. at 764; see also Gay v. Gilman Paper Co. , 125 F.3d 1432, 1435

(11th Cir. 1997).

      Mr. Medina contends that he was not required to give Coors notice that his

absence from work following the leave of absence was due to a serious medical

condition because it knew his leave of absence had been due to depression. Like

the district court, we reject this argument because Mr. Medina’s leave of absence

ended when his doctor released him to return to work, and Mr. Medina never

subsequently indicated that his inability to work was due to depression.

Moreover, in the pretrial order, he stipulated that his February absences were due

to personal business and to being “sick.” We thus agree with the district court

that he did not furnish Coors with sufficient information to apprise it of his need


                                         -4-
for leave due to a potentially FMLA-qualifying reason.       See Manuel , 66 F.3d

at 764; Gay , 125 F.3d at 1436.

      The judgment of the district court is AFFIRMED.



                                                         Entered for the Court



                                                         Bobby R. Baldock
                                                         Circuit Judge




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