                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                                  TENTH CIRCUIT                         February 13, 2012

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
GABRIELLE VALDEZ, Personal
Representative of the Estate of Doyle
“Rocky” Brown,

             Plaintiff – Appellant,

v.                                                           No. 11-2051
                                                 (D.C. No. 1:08-CV-00453-JCH-RLP)
BRENT MCGILL and MUELLER                                      (D. N.M.)
SUPPLY COMPANY, INC.,

             Defendants – Appellees.




                             ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, McKAY, and O'BRIEN, Circuit Judges.


      Gabrielle Valdez, acting as the personal representative of the estate of Doyle

“Rocky” Brown, appeals from the district court’s summary judgment for appellees Brent

McGill and Mueller Supply Company on claims related to Brown’s discharge. She

contends the district court erred because there were genuine issues of material fact which



      *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
preclude summary judgment on both her: (1) Americans with Disabilities Act (ADA)

and New Mexico Human Rights Act (NMHRA) claim; and (2) Family and Medical

Leave Act (FMLA) and breach of contract claim. We affirm.

                 BACKGROUND AND PROCEDURAL HISTORY

       Brown was a warehouse supervisor for Mueller Supply Company, which

manufactures metal building products. His duties included supervision of Mueller’s

warehouse, including all shipping and receiving. Brent McGill was Brown’s supervisor.1

       In April 2005, Brown advised McGill he had cancer and would need surgery.

Even though Mueller was not subject to FMLA’s requirements,2 Mueller provided him

with FMLA paperwork. He completed the paperwork and attached a physician’s

certification for the need for medical leave. In April 2005, Mueller approved his request

for FMLA leave for his surgery and informed him he had a “right under FMLA for up to

12 weeks of unpaid leave in a 12-month period.” (Aplt. App. Vol. 2 at 456.) Brown

returned to work following his surgery in May 2005.

       In January 2006, Mueller approved Brown for intermittent FMLA medical leave to

accommodate his recurrent health-related absences. On January 24, 2007, he presented a

physician’s note indicating he was being treated for colon cancer, bronchitis, and fatigue,

       1
         For simplicity, we refer to appellees collectively as Mueller except where the
distinction is pertinent.
       2
         Mueller employed too few people at Brown’s work site to trigger FMLA
requirements; nevertheless it had a policy of providing FMLA leave to all employees,
even those who would not ordinarily be eligible for FMLA leave because they worked at
locations with fewer than 50 employees within 75 miles. In 2007, Mueller discontinued
this practice “due to growth and staffing requirements.” (Aplt. App. 458.)


                                           -2-
and would not be able to return to work until February 8, 2007. On February 7, 2007,

Mueller sent him a letter explaining he had exhausted his twelve weeks of FMLA leave.

On the same day, he obtained another physician’s note indicating he would need three

additional weeks of leave and would not be able to return to work until March 1, 2007.

The next day, February 8, 2007, Mueller terminated him by telephone citing poor work

performance and excessive absences. As the district court explained, Brown “offered to

come to work ‘against doctor’s orders,’” but Mueller refused. (Aplt. App. Vol. 2 at 459.)

       Brown filed a complaint in the United States District Court for the District of New

Mexico. He sought damages for his termination under the ADA, FMLA,3 and NMHRA.

The district court entered summary judgment in favor of Mueller. Brown responded with

a “Motion to Alter or Amend the Court’s Judgment” under Fed. R. Civ. P. 59(e), in

which he attempted to show genuine issues of material fact. The court denied the motion.

[AA 2:510, 517] Brown died before filing an appeal. Gabriella Valdez, the personal

representative of Brown’s estate, was substituted as plaintiff. She appeals.

                                      DISCUSSION

       According to Valdez, the district court erred in granting summary judgment to

Mueller because there are genuine issues of material fact on (1) the ADA and NMHRA

claim and (2) the FMLA and breach of contract claim. We disagree.

       We review summary judgments de novo. Adamson v. Unum Life Ins. Co., 455


       3
         His complaint also included a breach of contract claim which asserted Mueller
breached a contract to provide him FMLA leave even if it was not obligated to provide
that leave under the terms of the FMLA itself.


                                           -3-
F.3d 1209, 1212 (10th Cir. 2006). Summary judgment is appropriate when there is no

genuine issue of material fact and the undisputed facts, considered in the light most

favorable to the nonmoving party, demonstrate the moving party’s entitlement to

judgment as a matter of law. Fed. R. Civ. P. 56(a); Adamson, 455 F.3d at 1212; Ramah

Navajo Chapter v. Salazar, 644 F.3d 1054, 1062 (10th Cir. 2011). However, “[a] party

asserting that a fact cannot be or is genuinely disputed must support the assertion” by

either “citing to particular parts of materials in the record” or “showing that the materials

cited do not establish the absence or presence of a genuine dispute, or that an adverse

party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).


       A. The ADA and NMHRA Claims
       Valdez first contends the district court erred in entering summary judgment for

Mueller on the ADA “failure to accommodate” and “wrongful termination claims” as

well as the NMHRA claims. She argues there is a genuine issue of material fact as to

whether it violated the ADA and NMHRA. In her view, there are factual questions as to

whether (1) Brown was a “qualified individual” who could have performed the essential

duties of his job with reasonable accommodations, and (2) Mueller failed to engage in the

interactive accommodation process required under the ADA. We see no error.

       The ADA prohibits discrimination against a “qualified individual” with a

disability on the basis of that disability. 42 U.S.C. § 12112(a). Discrimination under the

ADA includes “not making reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability who is an . . . employee,



                                            -4-
unless such covered entity can demonstrate that the accommodation would impose an

undue hardship on the operation of the business of such covered entity.” Id. §

12112(b)(5)(A). To establish a prima facie case of discrimination for failing to make

reasonable accommodations, a disabled employee must show: (1) he is qualified, with or

without reasonable accommodation, to perform the essential functions of the job held or

desired; and (2) he was discriminated against because of his disability. Mason v. Avaya

Comms., Inc., 357 F.3d 1114, 1118 (10th Cir. 2004).

       We use a two-part analysis to determine whether a person is a “qualified

individual” under the ADA. Davidson v. Am. Online, 337 F.3d 1179, 1190 (10th Cir.

2003); see 42 U.S.C. § 12111(8). First, we determine whether the individual can perform

the essential functions of the job. Davidson, 337 F.3d at 1190. If not, we then determine

whether any reasonable accommodation by the employer would enable him to perform

those functions. Id.

       A reasonable accommodation “may include . . . job restructuring, part-time or

modified work schedules, reassignment to a vacant position, acquisition or modification

of equipment or devices, appropriate adjustment or modifications of examinations,

training materials or policies, the provision of qualified readers or interpreters, and other

similar accommodations.” 42 U.S.C. § 12111(9). In addition, if the employee is unable

to perform his job, with or without accommodation, an employer must consider

reassignment to an available position as one form of accommodation. Hendricks-

Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998); see 42 U.S.C. §

12111(9)(B).

                                             -5-
        1.    Reasonable Accommodation

        Valdez claims Brown could have performed the essential functions of his job if he

had been provided with any one of several reasonable accommodations, such as allowing

him to work from home, providing him with additional leave time, reassigning his duties

to another employee or temporarily reassigning him to a different position. She seeks too

much.

        Most prominently, Valdez argues Mueller could have allowed Brown to work

from home. But for most jobs, “physical attendance in the workplace is itself an essential

function,” see Mason, 357 F.3d at 1119; Cisneros v. Wilson, 226 F.3d 1113, 1129 (10th

Cir. 2000) (“Attendance is generally an ‘essential’ function of any job.”), overruled on

other grounds by Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001). In

his deposition, Brown conceded his job required physical attendance at the workplace.

Although he testified he could use technology to “perform many of the essential

functions of the warehouse manager job from home,” he also acknowledged working

from home would limit his ability to perform many aspects of his job. For instance,

while at home, he could not perform either quarterly or random inventory counts. He

could not interact with customers who came to the warehouse. He could not effectively

supervise his staff because he could not confirm whether his employees had completed

the tasks he had assigned to them. Mueller could have, as Valdez argues, delegated some

of these tasks to others, but the ADA’s command for reasonable accommodation does not

require employers to reallocate essential employee duties. See Milton v. Scrivner, Inc.,

53 F.3d 1118, 1124-25 (10th Cir. 1995). Brown could not perform the essential functions

                                           -6-
of his job from home. Therefore, this was not a reasonable accommodation.

       Valdez also argues Mueller could have reasonably accommodated Brown with

additional leave time. A leave of absence may be a reasonable accommodation as long as

the employee’s request states the expected duration of the impairment. See Rascon v. US

West Comms., Inc., 143 F.3d 1324, 1333-34 (10th Cir. 1998), overruled on other grounds

by New Hampshire v. Maine, 532 U.S. 742 (2001); Cisneros, 226 F.3d at 1130. For

example, when an employee seeks a leave of absence for treatment and has a good

prognosis for recovery, a leave of absence is a reasonable accommodation. Hudson v.

MCI Telecomm. Corp., 87 F.3d 1167, 1168-69 (10th Cir. 1996). Conversely, when the

employee seeks leave, but it is uncertain if or when he will be able to return to work, a

leave of absence is not a reasonable accommodation. Cisneros, 226 F.3d at 1130 (noting

the employee must provide “an expected duration of the impairment” which must be

more definitive than the mere duration of the leave request).

       Here, the record shows it was uncertain if or when Brown would sufficiently

recover from his impairments to be able to return to work. He submitted two physician’s

notes describing his treatment for bronchitis, colon cancer, and fatigue. In the first note,

his physician wrote he could return to work on February 8, 2007. Yet he was unable to

return to work on that day. The second note stated he “may return to work on March 1[,

2007.]” (Aplt. App. Vol. 1 at 102.) In light of his diagnosis with colon cancer, his

frequent absences, and his inability to return to work according to the earlier physician’s

note, it was uncertain he would be able to return to work on March 1, 2007. In addition,

even if he had been able to return to work, neither note stated the impairment from his

                                            -7-
cancer and other conditions would be resolved at that time. Quite to the contrary, both

notes stated his cancer diagnosis remained unchanged.

         Valdez also argues Mueller could have reasonably accommodated Brown by using

either a temporary employee or an existing employee as a substitute for him. Requiring

an employer to reallocate job duties to change the essential functions of a job is not a

reasonable accommodation under the ADA. Milton, 53 F.3d at 1124-25. Therefore,

Mueller had no obligation to do so. And, to the extent Valdez argues Mueller could have

reasonably accommodated Brown through temporary reassignment, the district court

correctly concluded he failed to specifically identify an appropriate available job vacancy

as our precedent requires. See Duvall v. Georgia-Pacific Consumer Prods., 607 F.3d

1255, 1263 (10th Cir. 2010); Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110 (10th Cir.

1999).

         Because Brown did not show a reasonable accommodation would allow him to

perform the essential functions of his job, we agree with the district court that Brown was

not a qualified individual4 under the ADA and, consequently, Mueller did not wrongfully

terminate him.

         2.    The Interactive Accommodation Process

         Valdez also argues Mueller was required to engage in an interactive process to

         4
         The NMHRA prohibits employers from terminating “any person otherwise
qualified because of . . . medical condition.” Trujillo v. N. Rio Arriba Elec. Co-op., Inc.,
41 P.3d 333, 338 (N.M. 2001) (quoting N.M. Stat. Ann. § 28-1-7(A) (West 2011)). The
New Mexico Supreme Court equates the ADA’s definition of “qualified individual” with
the NMHRA’s “person otherwise qualified” definition. Id. Because we conclude Brown
is not a qualified individual under the ADA, he is not a “person otherwise qualified”
entitled to relief under the NMHRA.

                                            -8-
determine whether a reasonable accommodation could enable Brown to perform the

essential functions of his job. She further argues there is a genuine factual issue “as to

whether [Mueller] took the necessary actions to attempt accommodation.” (Appellant’s

Opening Br. 18.) Even assuming Mueller failed to adequately engage Brown in the

process, however, this failure is not actionable discrimination under the ADA.

       Under the ADA’s implementing regulations, once a qualified individual informs

his employer of a disability, the employer must then engage the employee in an

interactive process to determine if there is a reasonable accommodation. See 29 C.F.R. §

1630.2(o)(3); see also Hendricks-Robinson, 154 F.3d at 693. This interactive process

encourages employers and employees to work together to identify the employee’s precise

limitations and discuss accommodations which might enable the employee to continue

working. Id. An employer must make a reasonable effort to explore the accommodation

possibilities with the employee. Id. “The obligation to engage in an interactive process

is inherent in the statutory obligation to offer a reasonable accommodation to an

otherwise qualified disabled employee.” Smith v. Midland Brake, 180 F.3d 1154, 1172

(10th Cir. 1999). The interactive process ensures a reasonable accommodation is

identified, if one is available. See id.

       Despite its importance, however, the interactive process is only a means to an end.

To recover under the ADA, a plaintiff must show “a reasonable accommodation was

possible.” Id. at 1174; see also McBride v. BIC Consumer Prods., 583 F.3d 92, 101 (2d

Cir. 2009) (“[A]n employer’s failure to engage in a sufficient interactive process does not

form the basis of a claim under the ADA.”). Accordingly, an employer is not required to

                                            -9-
engage an employee in a futile interactive process where, as we have concluded was the

case here, no reasonable accommodation was possible.5 Id. at 100-01.


      B. FMLA and Breach of Contract Claims
      Valdez next contends the district court erred in entering summary judgment for

Mueller on Brown’s FMLA and breach of contract6 claims. Even assuming Brown was

entitled to FMLA leave, under the undisputed facts, Mueller provided him with the leave

to which he was (or may have been) entitled. Thus, there was no interference or

retaliation with Brown’s requesting or taking of FMLA leave, and Mueller breached no

contract to provide Brown with FMLA leave.

      1.     Interference

      Valdez argues disputed material issues of fact bar summary judgment on the

interference claim, to wit: whether (1) Brown exhausted his twelve weeks of FMLA leave

      5
         Even so, as the Ninth Circuit has recognized, an employer’s failure to engage in
the interactive process will often make it difficult to resolve a case for the employer on
summary judgment. In the Ninth Circuit’s view, when the employer fails to engage in
the interactive process, “it is not likely that an employer will be able to establish on
summary judgment the absence of a disputed fact as to the existence of a reasonable
accommodation.” Morton v. United Parcel Servs., Inc., 272 F.3d 1249, 1256 n.7 (9th
Cir. 2001), overruled on other grounds by Bates v. United Parcel Servs., Inc., 511 F.3d
974 (9th Cir. 2007) (en banc). Thus, even though an employer’s failure to follow the
interactive process is not an independent basis for liability under the ADA, employers are
well advised to follow the process before concluding no reasonable accommodation is
available.
      6
        Brown argued Mueller was obligated to provide FMLA leave even though it
employed too few employees at Brown’s site to be required to provide Brown with
FMLA leave. In his view, Mueller’s actions in approving him for FMLA leave either (1)
created a contract to provide Brown with FMLA leave or (2) should equitably estop
Mueller from denying he was entitled to FMLA leave. For purposes of our analysis, we
assume – without deciding – Brown was entitled to these benefits.


                                          - 10 -
time prior to his discharge and (2) Mueller provided Brown with required notice of the

leave time he had taken. She is mistaken.

       To establish an FMLA interference claim, Valdez must show: (1) Brown was

entitled to FMLA leave, (2) Mueller’s adverse action interfered with his right to take

FMLA leave, and (3) Mueller’s action was related to his exercise or attempted exercise of

FMLA rights. See Campbell v. Gambro Healthcare, 478 F.3d 1282, 1287 (10th Cir.

2007). Even assuming Brown was entitled to FMLA leave, to satisfy the second element

(the “adverse action” requirement) of an interference claim, she must show Mueller

prevented Brown from taking the full twelve weeks of leave guaranteed by the FMLA,

denied reinstatement following leave, or denied initial permission to take leave. See id.

She fails to make this showing.

              Inaccurate Leave Records

       Although Brown’s response to Mueller’s motion for summary judgment contested

the exhaustion of his twelve-week FMLA leave, it failed to cite any materials in the

record to substantiate a genuine issue of material fact on the accuracy of Mueller’s leave

records as Fed. R. Civ. P. 56(c)(1) requires.

       Mueller’s statement of undisputed facts in its motion for summary judgment

repeatedly asserted Brown had exhausted his FMLA leave:

              35. When Plaintiff brought in the doctor’s note on January 24,
              2007, he had already used 62 full days (12.4 weeks) of
              medical leave since February 1, 2006. Plaintiff alleges he was
              not informed these absences were “near the limit;” however,
              he admits that, regardless of what he would have been told,
              the leave from January 24 to February 8 was “medically
              necessary” and he “needed to take [the] leave.”

                                            - 11 -
              36. On the morning of February 7, 2007, Mr. Benton sent
              Plaintiff a letter . . . stating: “This letter is to inform you that
              during the period of 1/31/06 through an indefinite time, you
              had leave designated as Family Medical Leave (FMLA). As
              of 2/1/07, you have exhausted twelve (12) weeks of leave,
              which is the maximum under the law for this twelve (12)
              month period.” Plaintiff does not dispute he had exhausted
              twelve (12) weeks of leave.

              37. As of February 7, 2007, the Absentee History Report . . .
              shows Plaintiff missed 71 full days (14.1 weeks) for
              intermittent medical leave since February 1, 2006. Plaintiff
              does not dispute he missed that many days for medical leave,
              and, on each of those days, he could not have performed all of
              the duties of his job.


(Aplt. App. Vol. 1 at 9-10.) In the pertinent paragraphs of his response, however, Brown

failed to cite to any portion of the record showing a genuine dispute as to whether he had

exhausted his FMLA leave:


              20. Plaintiff disputes Paragraph 35 of Defendants’
              [undisputed facts]. Plaintiff testified that his doctor felt rest
              would do Plaintiff some good. Additionally, Plaintiff
              testified that he could have come to work during this period
              of time, though he would have been in pain.

              21. Plaintiff does not dispute Paragraph 36, in that one of
              Defendants’ absentee records showed that as of February 1,
              2007, Plaintiff had exhausted twelve weeks of designated
              FMLA leave. In as much as Defendants contend otherwise,
              Plaintiff disputes Paragraph 36.

              22. Plaintiff does not dispute Paragraph 37 of Defendants’
              [undisputed facts], in that one of Defendants’ absentee
              records showed that as of February 7, 2007, Plaintiff had used
              71 full days for intermittent designated FMLA leave. In as
              much as Defendants contend otherwise, Plaintiff disputes
              Paragraph 37. Plaintiff does dispute that he could not have

                                             - 12 -
              performed all of the duties of his job. Plaintiff testified that
              he could not have performed up to his expectations. (p. 366,
              l. 1-7, Ex B to Defendants’ Motion for Summary Judgment.)


(Aplt. App. Vol. 2 at 279.) The first two of these three paragraphs fail to cite any part of

the record. The third paragraph only cites portions of the record dealing with Brown’s

ability to perform his job duties. Even though these paragraphs show Brown disagreed

with Mueller’s factual assertion that he had exhausted his leave, they do not cite to any

portion of the record, as required under Fed. R. Civ. P. 56(c)(1), to support the existence

of a genuine dispute as to whether Brown exhausted his FMLA leave.

       Nor, contrary to Valdez’s assertion, does paragraph two of Brown’s “Statement of

Additional Undisputed Material Facts Which Preclude Summary Judgment” raise a

genuine dispute on the accuracy of Mueller’s recordkeeping:

              2. Mr. Benton charged Mr. McGill with the responsibility of
              tracking Mr. Brown’s FMLA usage for 2006. Mr. McGill’s
              documentation, which he used to track Mr. Brown’s FMLA
              leave, shows Mr. Brown used less time than documents
              Mueller is relying on to support their claim that Mr. Brown
              exceeded twelve weeks of FMLA leave.


(Aplt. App. Vol. 2 at 281-82.)

       Despite the allegations in this paragraph, the record shows Brown exhausted his

FMLA leave regardless of whether Mueller relied on McGill’s records or its own official

records. During his deposition, McGill acknowledged his own records were informal, and

he was inconsistent in updating them when Brown missed work. These informal records

showed Brown used less leave time than Mueller’s official timekeeping records did; yet


                                            - 13 -
even according to this more favorable accounting of Brown’s leave time, he had still

exhausted his twelve weeks of FMLA leave.

         Significantly, Mueller’s official timekeeping records stand unimpugned. To the

extent Mueller relied on these official timekeeping records to support its position that

Brown had exhausted his FMLA leave, Brown’s attack on McGill’s informal records

failed to create a genuine issue of material fact as to whether he exhausted his FMLA

leave.

         While Valdez argues the inconsistency between the two sets of records by itself

raises a genuine issue of material fact about the reliability of both sets of records, the

issue is not whether the two sets of records agree; the issue is whether Brown exhausted

his leave time. Because Brown exhausted his leave under both sets of records – including

the unimpeached official records – the district court correctly concluded there was no

genuine issue of material fact as to his exhaustion of his FMLA leave.7




         7
         In passing Valdez argues Mueller incorrectly calculated Brown’s leave time
balance. Valdez’s brief seems to argue only that Mueller’s calculations were incorrect
because the underlying data were incorrect. In Brown’s rule 59 motion before the district
court, however, he argued Mueller incorrectly applied the “rolling” method of leave time
calculation. See generally Thom v. Am. Std., Inc., No. 09-3507/3508, 2012 WL 162682,
at *2 (6th Cir. Jan. 20, 2012) (describing the “rolling” method of leave time calculation).
As we read Valdez’s brief, she does not reassert this argument on appeal. Even if she
did, however, Brown’s argument came too late to raise a genuine issue of material fact
because it was not made until after the district court granted Mueller’s motion for
summary judgment. See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000) (noting a rule 59 motion is appropriate to seek reconsideration when the court has
misapprehended the facts or a party’s position, but it is not appropriate “to revisit issues
already addressed or advance arguments that could have been raised in prior briefing”).


                                            - 14 -
              Notice

       Valdez also argues Mueller interfered with Brown’s FMLA rights because it failed

to give him notice of the amount of time he had “taken within one to two business days of

the requested time,” as required under federal regulations. (Appellant’s Opening Br. 32.)

See 29 C.F.R. § 825.301. In her reply brief, Valdez concedes the notice is not strictly due

within one to two days, but still argues the notice must be “given within a reasonable

time after notice of the need for leave is given by the employee.” (Appellant’s Reply Br.

17.) Because Brown never made this argument before the district court,8 we decline to

consider it. See Turner v. Pub. Serv. Co., 563 F.3d 1136, 1143 (10th Cir. 2009) (“Absent

extraordinary circumstances, we will not consider arguments raised for the first time on

appeal.”).

       Thus, there is no genuine issue of material fact on whether Mueller interfered with

Brown’s FMLA rights.

       2.     Retaliation

       Under our case law Brown doesn’t appear to have a cognizable retaliation claim.

If he does, it fails. A retaliation claim differs from an interference claim “with respect to

the timing of the adverse action.” Campbell, 478 F.3d at 1287. “A retaliation claim may

be brought when the employee successfully took FMLA leave, was restored to [his] prior

employment status, and was adversely affected by an employment action based on

       8
         Valdez cites sections of the record where Brown asserted he had never received
notice that he was either ineligible for FMLA benefits or that he had exhausted the leave
time provided under FMLA, but fails to cite any portion of the record where Brown
argued these failings constituted interference with his FMLA rights.


                                            - 15 -
incidents post-dating [his] return to work.” Id. at 1287-88. When, however, an employee

is denied restatement following leave, the claim is properly characterized as an

interference claim. See id. Because Brown never returned to work following his final

FMLA leave, it appears his claim is cognizable as an interference claim rather than a

retaliation claim.

       Assuming arguendo, Brown could bring a retaliation claim, it fails for the same

reason as his interference claim. To state a prima facie case of retaliation, Valdez must

show (1) Brown engaged in a protected activity; (2) Mueller took an action that a

reasonable employee would have found materially adverse; and (3) there exists a causal

connection between the protected activity and the adverse action. Metzler v. Fed. Home

Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006).

       Valdez’s argument on the first element of Brown’s prima facie claim – the

“protected activity” element – duplicates the arguments she made on the interference

claim.9 As already discussed, there is no genuine issue of material fact as to whether

Brown exhausted his FMLA leave. He did. At the time of his termination, he was not

engaged in a protected activity, and, thus, he has no prima facie case for retaliation.




       9
         Valdez argues the district court erred because it “failed to take into account the
issues addressed in [the interference claim section of her brief]. In other words, if
Mueller’s calculations were incorrect then Brown actually was engaged in protected
activity at the time of his February 7 request for more [FMLA] leave time.” (Appellant’s
Opening Br. 39.)



                                            - 16 -
AFFIRMED.

            Entered by the Court:

            Terrence L. O’Brien
            United States Circuit Judge




            - 17 -
