UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIE J. BARRON, JR.,
Plaintiff-Appellant,

v.
                                                                    No. 99-1027
MARVIN RUNYON, Postmaster
General, U. S. Postal Service,
Northern Virginia Division,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-98-100)

Argued: December 2, 1999

Decided: February 28, 2000

Before TRAXLER and KING, Circuit Judges, and
Margaret B. SEYMOUR, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Seymour wrote the opinion,
in which Judge Traxler and Judge King joined.

_________________________________________________________________

COUNSEL

ARGUED: Declan C. Leonard, MARTIN, ARIF, PETROVICH &
WALSH, Springfield, Virginia, for Appellant. David George Karro,
UNITED STATES POSTAL SERVICE, Washington, D.C., for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Rich-
ard Parker, Assistant United States Attorney, R. Andrew German,
Managing Counsel, UNITED STATES POSTAL SERVICE, Wash-
ington, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

SEYMOUR, District Judge:

This matter is before this court on Appellant Willie Barron's
("Barron") appeal of a district court order dismissing his claim under
the Family and Medical Leave Act ("FMLA") against his former
employer, the United States Postal Service ("USPS"). After a bench
trial, the district court entered its conclusions of law on the record,
issued separate written finding of facts, and entered judgment for the
USPS. Barron filed this timely notice of appeal in accordance with
Rules 3 and 4(a)(1)(B) of the Federal Rules of Appellate Procedure.
For the reasons set forth more fully below, this court affirms.

I.

Barron worked for the USPS as a clerk at the Merrifield, Virginia
Processing and Distribution Center from 1986 until his termination in
December of 1994. During his tenure with the USPS, Barron received
repeated reprimands for excessive absenteeism.

Barron received a termination notice for having a number of
absences without official leave ("AWOL") one year prior to his
December 1994 termination. However, the USPS chose not to termi-
nate Barron and entered into a "Last Chance/Firm Choice Agreement"
("Agreement") with him on December 23, 1993. This Agreement
remained effective for a one year period and provided, inter alia, that
any unscheduled absences could result in immediate termination. The

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Agreement further defined unscheduled absences as"any absences
not scheduled and approved in advance of Mr. Barron's scheduled
reporting time and includes, but is not limited to, tardiness, emer-
gency leave (such as emergency annual leave or sick leave), leave
without pay ("LWOP"), and failure to report/remain as scheduled for
overtime or holiday work." (J.A. 279). Barron admitted at trial that he
understood the Agreement to mean that he could be terminated for
any future unexcused absences.

The present action arises out of absences which occurred after the
signing of the Last Chance Agreement. On January 1, 1994, Barron
requested FMLA leave in order to care for his girlfriend, Kandis Ben-
net ("Bennet"), who had suffered a back injury. His acting supervisor,
Willie Clubbs, denied Barron's request and explained to Barron that
he was not eligible for FMLA leave because Bennett was not his
spouse. Barron married Bennett on January 11, 1994.

Barron again requested FMLA leave on January 12, 1994 to care
for his wife. With this request, Barron provided a January 11, 1994
letter from his wife's doctor indicating that his wife would have sur-
gery on February 11, 1994, that she would need help in her home for
at least one week following her hospital discharge, and that she would
need follow-up care after surgery. This request for leave, running
from February 9 to February 14, 1994, was approved by Mr. Jose
Lopez, Manager of Distribution Operations for Barron's shift
("Lopez").

Barron did not return to work as scheduled, and he remained out
of work until April 4, 1994. During Barron's absence, Karen Robin-
son ("Robinson") became his new supervisor. On March 30, 1994,
Robinson sent Barron a letter requesting that medical documentation
supporting his extended leave be submitted to the Medical Unit on or
by April 6, 1994. The letter also indicated that failure to do so could
result in termination. When Barron returned to work on April 4, 1994,
Robinson was not available. Barron testified that he gave the
requested documentation to a supervisor in the payroll department;
however, he was unsure of the identity of the supervisor who received
his information. Robinson never saw any of the requested documenta-
tion until the arbitration of Barron's termination grievance.

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Barron received his final notice of removal on December 20, 1994.
This notice of removal contained the following list of unexcused
absences which were considered in the decision to terminate Barron:

December 16, 1994               29 Minutes Late
November 17, 1994               8 Hours AWOL
November 7/10, 1994              16 Hours AWOL
October 13/17, 1994             40 Hours Emergency AL
September 8/9, 1994             16 Hours Unscheduled SL
August 6/10, 1994              24 Hours AWOL
July 17, 1994               8 Hours Emergency AL
June 16/18, 1994              24 Hours Unscheduled SL
June 4, 1994                8 Hours Unscheduled SL
May 19, 1994                 8 Hours Unscheduled SL
May 5, 1994                 8 Hours Emergency AL
February 19/March 3, 19941          268 Hours AWOL
January 27/February 4, 1994        56 Hours AWOL
December 30, 1993/January 7, 1994 56 Hours Unscheduled LWOP

In addition to the absences listed above, the notice of removal listed
three other absences from 1991 and 1992. Barron does not dispute
that he was absent on the occasions outlined in his notice of termina-
tion. Rather, Barron contends that some of these absences were pro-
tected by the intermittent leave provisions of the FMLA.

After Barron's termination, he submitted a letter from his wife's
doctor dated January 3, 1995, indicating that the absences on May 1,
19; June 4, 16-18; July 17; August 6-10; September 8-9; October 13-
17; and November 7-10, 17, were all due to his wife's medical condi-
tion. However, those absences do not account for all of Barron's
recorded absences.

Barron testified at trial that on or around February 16, 1994, he cal-
led the Administrative Support Office ("ASO") and the tour superin-
tendent to notify the USPS that he would need additional time off.
Barron also testified that on February 24, 1994, he again called to
notify the USPS that he would be providing additional documentation
_________________________________________________________________
1 The record reveals that the reference to March 3 should instead be
April 3, 1994.

                    4
of his wife's medical condition. However, Barron admits that he
never provided this documentation until after Robinson's request.

Barron admitted at trial that he knew of the FMLA requirements
at the time he made his first request for FMLA leave on January 1,
1994. Lopez testified at trial that the USPS gave its employees FMLA
service talks in late 1993 and posted FMLA notices on bulletin boards
throughout the Merrifield facility. Although Barron testified that he
did not recall receiving any information regarding the FMLA from the
USPS, he admitted receiving a copy of his union's FMLA pamphlet
in the mail. This pamphlet provided a detailed discussion of Barron's
FMLA rights, including the Act's requirement for thirty days advance
notice, if feasible. The pamphlet also specifically mentioned standard
form 3971 as the appropriate form to use in requesting FMLA leave.

II.

Barron raises several issues on appeal. First, Barron asserts that the
district court improperly interpreted the FMLA's statutory and regula-
tory provisions concerning intermittent leave. Second, Barron alleges
that the district court erred in concluding that the USPS complied
with the notice provisions of the FMLA. Third, Barron contends that
the district court erred in allowing evidence regarding the effects of
unscheduled FMLA leave on its labor force and in concluding that all
of his absences were not necessary to assist his wife in her recovery
from back surgery.

The appellate court reviews the district court's determinations of
law de novo. Meekins v. United Transp. Union, 946 F.2d 1054, 1057
(4th Cir. 1991). The district court's factual findings are subject to
reversal only if found to be clearly erroneous. Fed. R. Civ. P. 52(a).
A factual finding is clearly erroneous when the appellate court, after
reviewing the complete record is left with the definite and firm con-
viction that a mistake has been committed. Front Royal & Warren
County Indus. Park Corp. v. Town of Front Royal, Virginia, 135 F.3d
275, 284 (4th Cir. 1998). "[W]here there are two permissible views
of the evidence, the factfinder's choice between them cannot be
clearly erroneous." Zfass v. Commissioner, 118 F.3d 184, 188 (4th
Cir. 1997).

                    5
Barron contends that the district court erred when it concluded that
most, if not all, of his absences were not FMLA-protected. Specifi-
cally, Barron asserts that his leave should qualify as intermittent leave
or a reduced leave schedule.

The FMLA allows covered employees to take up to twelve weeks
of unpaid medical leave in any twelve month period for serious health
conditions and protects their right upon their return, to be placed in
the same or an equivalent position. 29 U.S.C. §§ 2612(a)(1)(D) &
2614(a). The FMLA also provides that, where medically necessary,
a person may take leave intermittently or be placed on a reduced leave
schedule. 29 U.S.C. § 2612(b)(1). Intermittent leave is defined in the
interim regulations2 as "leave taken in separate blocks of time due to
a single illness or injury, rather than one continuous period of time,
and may include leave of periods from an hour or more to several
weeks. Examples of intermittent leave would include leave taken on
an occasional basis for medical appointments, or leave taken several
days at a time spread over a period of six months, such as for chemo-
therapy." 29 C.F.R. § 825.203(b).

The district court correctly concluded that the facts did not support
Barron's assertion that he sought intermittent leave or a reduced leave
schedule. Barron requested and received a one week period of FMLA
leave to care for his wife following her back surgery. Barron did not
return to work until after his supervisor requested additional docu-
mentation to support his absence. Barron admits that he provided no
additional documentation of a need for FMLA leave during his unau-
thorized five-week absence. There was sufficient evidence from
which the district court could conclude that Barron failed to provide
adequate notice of a need for intermittent leave.

Barron also argues that, despite his inadequate notice of a need for
intermittent FMLA leave, the USPS was estopped from terminating
him because of its failure to provide adequate notice of Barron's
FMLA rights. The USPS offered evidence of its compliance with the
_________________________________________________________________
2 The final regulations did not become effective until February 6, 1995,
after Barron's termination. Accordingly, all references shall be to the
interim regulations which took effect on August 5, 1993, unless other-
wise indicated.

                     6
posting requirements contained in the interim regulation. See 29
C.F.R. § 825.300 (1993). Further, Barron testified that he was aware
of his FMLA rights. He admitted receiving his union's pamphlet out-
lining his rights and obligations under the Act. Barron's unsuccessful
January 1, 1994 attempt to invoke the protections of the Act and his
subsequent request for FMLA leave on January 12, 1994 establish
that Barron was aware of his FMLA rights. This court concludes that
there was sufficient evidence from which the district court could con-
clude that the USPS fully complied with the notice requirements
under the interim regulations.

Barron also argues that the district judge erred in allowing testi-
mony regarding the effect Barron's unscheduled leave had on the
labor pool. Because one of the express purposes of the FMLA is to
"balance the demands of the workplace with the needs of families,"
29 U.S.C. § 2601(b)(1), the district court did not err is allowing this
testimony.

III.

For the foregoing reasons, we affirm the district court's judgment
following a bench trial in favor of the USPS on Barron's FMLA
claim.

AFFIRMED

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