                                                                              [PUBLISH]


                    IN THE UNITED STATES COURT OF APPEALS
                                                                                   FILED
                               FOR THE ELEVENTH CIRCUIT                  U.S. COURT OF APPEALS
                                                                           ELEVENTH CIRCUIT
                                                                                JAN 22 2001
                                           No. 99-14103                     THOMAS K. KAHN
                                                                                  CLERK


                              D.C. Docket No.98-00374-CV-B-S


RUSSELL STRICKLAND,

                                                                             Plaintiff-Appellant,

                                        versus

WATER WORKS AND SEWER BOARD OF
THE CITY OF BIRMINGHAM,

                                                                            Defendant-
Appellee.



                         Appeal from the United States District Court
                            for the Northern District of Alabama

                                       (January 22, 2001)


Before TJOFLAT, WILSON and FLETCHER|, Circuit Judges.
____________________________________________________
|
    Honorable Betty B. Fletcher, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
TJOFLAT, Circuit Judge:

       This is a Family and Medical Leave Act (“FMLA”) case, 29 U.S.C. §§

2601-2654 (1994).1 The plaintiff claims that his employer terminated his

employment after he left the job site because he was suffering a diabetic attack and

could not perform the tasks assigned him, that such condition qualified him for

FMLA leave, and that he is entitled to reinstatement and damages. On summary

judgment, the district court held that the FMLA provided the plaintiff no relief

because, at the time of his discharge, he had not exhausted the paid sick leave

provided by his employer, and the Act provides no relief to an employee under

such circumstances. Alternatively, the court, treating the plaintiff’s complaint as

alleging an FMLA “retaliation claim,” as opposed to an “interference claim,” found

no merit in the plaintiff’s allegations.

       We conclude that the court erred in its first holding because whether an

employee is entitled to receive paid sick leave is irrelevant to his right to FMLA

protection. We also conclude that the court erred in reading the plaintiff’s

complaint as alleging only a retaliation claim. The plaintiff has made out an


       1
         When suit was filed in the district court, the complaint contained, in addition to an
FMLA claim, a claim for relief under the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12101-12213 (1994). The district court granted the defendant summary judgment on that
claim, and the plaintiff does not challenge that ruling in this appeal. We therefore do not address
the ADA claim in this opinion.

                                                 2
interference claim, and it survives summary judgment because a “swearing match”

between the plaintiff and his immediate supervisor concerning why the plaintiff

left the job site creates a material issue of fact. We therefore vacate the district

court’s judgment and remand the case for further proceedings.



                                           I.

      Russell Strickland, who suffers from diabetes mellitus, had been an

employee of the Water Works and Sewer Board of the City of Birmingham,

Alabama (“Water Works Board” or “Board”), for eighteen years and held the

position of Service Department Supervisor when the events leading to this law suit

arose in March 1997. On Wednesday morning, March 5, Randolph Harmon,

manager of the Service Department and Strickland’s immediate supervisor, had a

telephone conversation with Strickland concerning Strickland’s failure to resolve a

customer’s complaint about the amount of a water bill that Harmon had asked him

to settle by March 3. According to a note Harmon wrote following the phone

conversation, Strickland responded that he had been “to [sic] busy, was not feeling

well, [and] could not perform [the] inspection” necessary to resolve the complaint.

Shortly after the phone call, Harmon met with Strickland to discuss the matter

further. The parties dispute what was said at the meeting. Strickland claims that


                                           3
he reiterated what he had said during the telephone conversation – that he had not

resolved the customer’s complaint because his diabetes had been interfering with

his vision, which, in turn, prevented him from inspecting the customer’s premises.

Harmon, according to his affidavit and a memorandum he wrote after the meeting,

says that Strickland became agitated when pressed on why he had not resolved the

complaint, walked out of the meeting, and left the workplace without obtaining

permission to leave. Strickland disputes this, saying that when the meeting ended

he told Harmon – and, thereafter, a departmental employee responsible for

recording work absences – that he had to take the rest of the day off because his

diabetes was acting up.

      Later in the day (after Strickland left), Harmon forwarded his memorandum

recounting the meeting with Strickland to the Water Works Board’s senior

management. In the memorandum, Harmon recommended that the Water Works

Board fire Strickland for “insubordination” and “failure to follow work orders and

instructions.”

      The next morning, March 6, Harmon called Strickland at home. Harmon’s

version of the phone conversation is that he asked Strickland to come to the office

“so that [they] could discuss the matter.” Strickland’s version is that Harmon

wanted him to bring “a letter from [his] doctor” verifying his illness. Strickland


                                          4
obtained the letter and gave it to Harmon when they met later that day; the letter

confirmed that Strickland had diabetes.

       Strickland did not work on March 6 or March 7; he had previously been

granted permission to take those days off as “vacation.” On March 7, Strickland

received a letter from Gene Hanson, Interim General Manager of the Water Works

Board, informing him that the Board was considering disciplinary action against

him and offering him the opportunity to be heard in writing, or by appearing before

Hanson on Tuesday, March 11. The letter identified as grounds for disciplinary

action Strickland’s failure to follow Harmon’s instructions to resolve the customer

complaint and his “walking off the job” on March 5 without permission.

       When Strickland arrived at work on Monday, March 10, his next scheduled

work day, Harmon informed him that he had been suspended. The following day,

Strickland appeared in person at his disciplinary hearing before Hanson and a

committee composed of the Water Works Board’s senior management. Harmon

was also present at the hearing, and both he and Strickland presented their versions

of the events of March 5. In a letter dated March 14, the Board informed

Strickland that he had been terminated, retroactive to March 5, for his conduct on

that date, including his “insubordination and ‘walking off the job.’” Strickland

then filed this law suit.


                                          5
        The complaint alleged that, on March 5, Strickland had been unable to work

due to a diabetic attack and that he informed Harmon,2 as well as the Service

Department employee responsible for recording work absences, about his

condition. The complaint further alleged that on March 6, Strickland gave Harmon

a letter from his doctor which confirmed that he was suffering from diabetes and

that, after receiving the letter, Harmon told him that “[he] was terminated for

‘walking off the job.’” Alleging that Strickland had been “terminated in violation

of the FMLA,” the complaint sought Strickland’s reinstatement and damages.

        The Water Works Board’s answer denied Strickland’s allegations regarding

the events of March 5, and stated that Strickland “never informed the Water

Works’ management of his alleged diabetes or that it interfered with his ability to

perform his job,” that he “failed to request leave under the FMLA in accordance

with the Water Works’ Policy . . . and never filled out the form to request leave,”

and that the Board discharged Strickland because he “refused to follow [Harmon’s]

orders and instructions . . . and walked off the job without authorization from or

notification to management after being insubordinate to [Harmon].”




        2
            In the complaint, Harmon is referred to as Strickland’s “supervisor” rather than by
name.

                                                  6
      On cross motions for summary judgment, the district court granted the

Water Works Board’s motion as to Strickland’s FMLA claim on alternative

grounds. First, the court held that since Strickland had not exhausted his paid

leave time available under the Board’s sick leave policy, he could not invoke the

protections of the FMLA. Second, the court held that even if Strickland could

demonstrate that his absence on March 5 was protected by the FMLA, he did not

present sufficient evidence for a reasonable jury to find that his discharge was

retaliatory; that is, that the Board fired him because he invoked the Act’s

protection. See Strickland v. Water Works and Sewer Bd., No. CV 98-B-0374-S

(N.D. Ala. Sept. 15, 1999).



                                          II.

      Summary judgment is proper only when “there is no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). We review a district court’s grant of summary judgment de

novo, applying the same legal standards as the district court and viewing all facts

and reasonable inferences in the light most favorable to the nonmoving party.

Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000). After

reviewing the record and the district court’s analysis of Strickland’s FMLA claim,


                                           7
we conclude that the court misinterpreted the Act and, further, failed to recognize

the existence of a material issue of fact that precluded summary judgment.



                                              III.

       As its first ground for granting summary judgment, the district court held

that Strickland’s absence on March 5 could not qualify for FMLA protection

because paid leave was still available to him under the Water Works Board’s sick

leave policy.3 In the court’s view, an employee who has not exhausted his paid

sick leave – or, for that matter, any paid leave to which he may be entitled – cannot

avail himself of the substantive protection of the FMLA implicated in this case.

While some of the Act’s text, considered in isolation, might suggest that an eligible

employee whose leave qualifies as paid sick leave under his employer’s sick leave

policy cannot receive the benefits of the Act, such a reading is inconsistent with the

purpose of the FMLA.



                                              A.




       3
         Strickland had 16 hours of sick leave remaining under the Board’s sick leave policy at
the time he left work on March 5. Under that policy, employees are entitled to 24 hours per year
of paid sick leave without having to submit a physician’s statement verifying the illness.

                                               8
       The FMLA provides that “an eligible employee shall be entitled to a total of

12 workweeks of leave during any 12-month period for one or more of the

following: . . . (D) Because of a serious health condition that makes the employee

unable to perform the functions of the position of such employee.” 29 U.S.C. §

2612(a)(1) (1994).4 The FMLA explicitly permits employers to provide covered

leave on an unpaid basis. 29 U.S.C. § 2612(c). If an employer provides paid leave

benefits to its employees, the Act provides that “[a]n eligible employee may elect,

or an employer may require the employee, to substitute any of the accrued paid

vacation leave, personal leave, or medical or sick leave of the employee for . . . any

part of the 12-week period” of FMLA leave. 29 U.S.C. § 2612 (d)(2)(B).



                                               B.

       The district court misinterpreted the FMLA as permitting employers with

paid sick leave policies to choose whether an employee’s FMLA-qualifying


       4
          The Board does not dispute that, as an employer, it is subject to the FMLA and that
Strickland is an “eligible employee” and thus entitled to the Act’s benefits.
        Strickland contends that he needed only a single day of FMLA leave–March 5–since he
attempted to return to work on March 10, his next scheduled work day. Although this case does
not present the question whether an eligible employee may take the available 12 weeks of FMLA
leave one day at a time over the course of a year, the Board does not contend that the Act
precluded Strickland from claiming only one day of covered leave. The FMLA provides that
leave for a serious health condition need not be taken as a 12 week block but rather may be taken
“intermittently or on a reduced leave schedule when medically necessary.” 29 U.S.C. §
2612(b)(1).

                                               9
absence will be either unpaid but protected by the Act, or paid but unprotected.

The court’s misinterpretation is understandable given the unartful and unfortunate

use of language in the FMLA and its accompanying regulations indicating that paid

leave may be used as a “substitute” for unpaid FMLA leave. See id.; 29 C.F.R. §

825.207(a) (2000) (“FMLA permits an eligible employee to choose to substitute

paid leave for FMLA leave. If an employee does not choose to substitute accrued

paid leave, the employer may require the employee to substitute accrued paid leave

for FMLA leave.”) (emphasis added). Particularly troubling is 29 C.F.R. §

825.207(e), which states:

      Paid vacation or personal leave, including leave earned or accrued
      under plans allowing “paid time off,” may be substituted, at either the
      employee’s or the employer’s option, for any qualified FMLA leave.
      No limitations may be placed by the employer on substitution of paid
      vacation or personal leave for these purposes.

      When looking at the these portions of the Act and regulations absent their

context, it seems reasonable to interpret the substitution language as making paid

sick leave and unpaid FMLA leave mutually exclusive – the employer or the

employee must choose one type of leave or the other. A better interpretation of the

relationship between paid sick leave benefits and unpaid FMLA leave, however, is

informed by consideration of the context of the substitution provisions and the

purpose of the FMLA.


                                         10
       With respect to an employer whose paid sick leave policy affords employees

fewer than 12 weeks of paid leave, the Act permits the employer to provide “the

additional weeks of leave necessary to attain the 12 workweeks of leave required

under this subchapter . . . without compensation.” 29 U.S.C. § 2612(d)(1). What

this provision obviously means is that an employer cannot escape liability under

the Act for the period during which the employee, whose leave qualifies under the

FMLA, is receiving his wages in the form of sick (or other) pay.5

       The meaning of the substitution language in the Act and regulations is

further clarified by section 825.207(f) of the regulations. That section clarifies

section 825.207(e), which the district court cites as exempting paid sick leave from

the protections of the FMLA, by providing that “[i]f neither the employee nor the

employer elects to substitute paid leave for unpaid FMLA leave under the above

conditions and circumstances, the employee will remain entitled to all the paid

leave which is earned or accrued under the terms of the employer’s plan.” 29

C.F.R. § 825.207(f). The plain meaning of this regulation is that an employee who

has an FMLA-qualifying condition may take both 12 weeks of unpaid leave under




       5
          In other words, suppose an employee is paid for the first 6 weeks of a 12-week FMLA-
qualifying leave. The Act covers not only the last 6 weeks of unpaid leave, but the first 6 weeks
of paid leave as well.

                                               11
the Act, plus any paid leave his employer provides unless the employee chooses, or

the employer requires, that the two leave entitlements run concurrently.

       These provisions, taken together, make clear that an employer who is subject

to the FMLA and also offers a paid sick leave policy has two options when an

employee’s leave qualifies both under the FMLA and under the employer’s paid

leave policy: the employer may either permit the employee to use his FMLA leave

and paid sick leave sequentially, or the employer may require that the employee

use his FMLA leave entitlement and his paid sick leave concurrently. The Water

Works Board adopted the latter option.6 Neither Congress nor the Department of

Labor could have intended, by using the substitution language, to allow employers

to evade the FMLA by providing their employees with paid sick leave benefits.7

Otherwise, when an employee misses work for an illness that qualifies under both

his employer’s paid sick leave policy and the FMLA, his employer could elect to




       6
         The Water Works Board’s sick leave policy provides that “[i]f a serious health
condition exists that makes the employee unable to perform the employee’s job, then that
employee must use any available sick and vacation days first. Those days will be subtracted
from the 12 weeks [of FMLA leave]. When all available sick and vacation days have been
exhausted, the employee will be off without pay. The use of vacation and sick time applies to
intermittent leave also.”
       7
          The legislative history to the provision of the FMLA providing leave for sick employees
states that “it is unfair for an employee to be terminated when he or she is struck with a serious
illness and is not capable of working.” S. Rep. No. 103-3, (1993), reprinted in 1993
U.S.C.C.A.N. 3, 13.

                                               12
have the absence count as paid sick leave rather than FMLA leave and would then

be free to discharge him without running afoul of the Act.

       The logical purpose underlying the substitution language in the FMLA and

accompanying regulations is to protect employers who offer paid sick leave

benefits to their employees from having to provide both the statutory 12 weeks of

leave required by the FMLA and the paid leave benefit separately. If employers

could not require a sick employee to use accrued paid sick leave and FMLA leave

concurrently when the employee’s condition qualifies for both, then the employee

could choose to use his paid leave benefit and his 12 weeks of FMLA leave

sequentially. That would unduly and unfairly burden employers.8 To balance the

needs of employers and sick employees, Congress intended that the FMLA provide

employees with a minimum entitlement of 12 weeks of leave, while protecting

employers against employees tacking their FMLA entitlement on to any paid leave

benefit offered by the employer.

       In sum, the district court erred in holding that an employee who has not

exhausted his paid sick leave is not entitled to the protections of the FMLA. Given

this error, we must consider the court’s second ground for granting summary


       8
         The opening section of the FMLA makes clear that the purpose of the Act is “to entitle
employees to take reasonable leave for medical reasons . . . in a manner that accommodates the
legitimate interests of employers.” 29 U.S.C. § 2601(b).

                                               13
judgment: that Strickland presented no evidence indicating that the Water Works

Board fired him because he invoked the Act’s protection.



                                         IV.

      In his complaint, Strickland alleged that “he was terminated in violation of

the FMLA.” The court construed this allegation as an attempt to state a claim of

retaliatory discharge (rather than a claim for a substantive benefit provided by the

Act), and assumed for sake of argument that the record established a prima facie

case. The court then asked whether Strickland presented any evidence showing

that the Water Works Board’s reasons for terminating his employment –

“insubordination and ‘walking off the job’” on March 5 – were pretextual.

Concluding that he had not, the court granted the Board’s motion for summary

judgment.

      Strickland contends that his “Response to Defendant’s First Motion for

Summary Judgment” made it plain that, in addition to presenting a retaliatory

discharge claim, he was alleging that the Board had violated his substantive rights

under the FMLA by firing him while taking protected leave. He contends further

that the evidence before the court would permit a reasonable jury to find that he

was covered by the Act when he left the job site on March 5, and that consequently


                                         14
he was entitled to reinstatement to his position when he returned to work on March

10.



                                         A.

      Among the substantive rights granted by the FMLA to eligible employees

are the right to “12 workweeks of leave during any 12-month period . . . . [b]ecause

of a serious health condition that makes the employee unable to perform the

functions of the position of such employee,” 29 U.S.C. § 2612(a)(1), and the right

following leave “to be restored by the employer to the position of employment held

by the employee when the leave commenced” or to an equivalent position, 29

U.S.C. § 2614(a)(1). To preserve the availability of these rights, and to enforce

them, the FMLA creates two types of claims: interference claims, in which an

employee asserts that his employer denied or otherwise interfered with his

substantive rights under the Act, see 29 U.S.C. § 2615(a)(1), and retaliation claims,

in which an employee asserts that his employer discriminated against him because

he engaged in activity protected by the Act, see 29 U.S.C. § 2615(a)(1) & (2); 29

C.F.R. § 825.220(c) (“An employer is prohibited from discriminating against




                                         15
employees . . . who have used FMLA leave.”).9 To state a claim of interference

with a substantive right, an employee need only demonstrate by a preponderance of

the evidence that he was entitled to the benefit denied. O’Connor v. PCA Family

Health Plan, Inc., 200 F.3d 1349, 1353-54 (11th Cir. 2000); King v. Preferred

Technical Group, 166 F.3d 887, 891 (7th Cir. 1999). In contrast, to succeed on a

retaliation claim, an employee must demonstrate that his employer intentionally

discriminated against him in the form of an adverse employment action for having

exercised an FMLA right. King, 166 F.3d at 891. In other words, a plaintiff

bringing a retaliation claim faces the increased burden of showing that his

employer’s actions “were motivated by an impermissible retaliatory or

discriminatory animus.” Id. While we agree with the district court, for the reasons

discussed below, that Strickland could not survive summary judgment on his


       9
          While the FMLA does not clearly delineate these two claims with the labels
“interference” and “retaliation,” those are the labels courts have used in describing an
employee’s claims under the Act. See, e.g., O’Connor v. PCA Family Health Plan, Inc., 200
F.3d 1349, 1352 (11th Cir. 2000).
        The relevant part of the Act, 29 U.S.C. § 2615, reads as follows:
               (a) Interference with rights
                  (1) Exercise of rights
                  It shall be unlawful for any employer to interfere with, restrain,
               or deny the exercise of or the attempt to exercise, any right
               provided under this subchapter.
                  (2) Discrimination
                  It shall be unlawful for any employer to discharge or in any
               other manner discriminate against any individual for opposing any
               practice made unlawful by this subchapter.


                                             16
retaliation claim, we conclude that the court erred in not considering his

interference claim – a claim as to which summary judgment would have been

inappropriate.



                                          B.

      When a plaintiff asserts a claim of retaliation under the FMLA, in the

absence of direct evidence of the employer’s intent, we apply the same burden-

shifting framework established by the Supreme Court in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d. 668 (1973), for evaluating

Title VII discrimination claims. See Brungart v. Bellsouth Telecomm. Inc., 231

F.3d 791, 798 (11th Cir. 2000). In order to state a claim of retaliation, an

employee must allege that: (1) he engaged in a statutorily protected activity; (2) he

suffered an adverse employment decision; and (3) the decision was causally related

to the protected activity. Parris v. Miami Herald Publ’g Co., 216 F.3d 1298, 1301

(11th Cir. 2000). Strickland could not survive summary judgment on his

retaliation claim because he failed to establish the third element of a prima facie

case – that the Water Works Board fired him for engaging in protected activity.

      In his complaint, Strickland alleged that, before leaving the workplace on

March 5, he told his supervisor, Harmon, that he needed FMLA leave because he


                                          17
was suffering a diabetic attack. The record presented to the district court on

summary judgment, however, contained no support for this allegation; nothing in

Strickland’s affidavits or the other materials before the court would permit a jury to

find that Harmon or anyone else employed by the Board had notice that Strickland

was invoking the protection of the FMLA when he left work that day. Nor did

Strickland refer to the FMLA at any time prior to the Board’s March 14 decision to

discharge him.

      Strickland contends that this absence of notice is not fatal, because the short

time lapse between his March 5 leave and the Board’s decision to fire him, a mere

nine days, constitutes circumstantial evidence that the Board was retaliating against

him for seeking FMLA protection and thus satisfies the third element of a prima

facie case. Brungart, 231 F.3d at 799 (citing Bechtel Constr. Co. v. Secretary of

Labor, 50 F.3d 926, 934 (11th Cir. 1995) (“Proximity in time is sufficient to raise

an inference of causation.”)). Such evidence cannot satisfy the third element in a

case, like the one here, in which the “unrebutted evidence [is] that the decision

maker did not have knowledge that the employee [had engaged, or was attempting




                                         18
to engage,] in protected conduct.” Id.10 As we said in Brungart, “[a] decision

maker cannot have been motivated to retaliate by something unknown to him.” Id.



                                               C.

       Although the record does not support a claim for retaliatory discharge, it

does present an interference claim sufficient to withstand summary judgment. As

we said above, to state a claim that his employer has interfered with a substantive

FMLA right, a plaintiff need only demonstrate that he was entitled to but denied

the right. He does not have to allege that his employer intended to deny the right;

the employer’s motives are irrelevant.

       Strickland’s second theory of recovery is based on the substantive FMLA

right to reinstatement; an employee returning from covered leave is entitled to be

restored to his former position or its equivalent. 29 U.S.C. § 2614(a)(1);

O’Connor, 200 F.3d at 1354. An employer can deny the right to reinstatement,

however, if it can demonstrate that it would have discharged the employee had he

not been on FMLA leave. O’Connor, 200 F.3d at 1354; see 29 U.S.C. § 2614(a)(3)


       10
           We read Brungart as holding that close proximity in time between the protected
activity and the adverse employment decision does not, standing alone, establish the third
element of a prima facie case. Instead, the close proximity merely buttresses other evidence
(direct or circumstantial) in the case indicating that the decision maker had notice of the
protected activity.

                                               19
(qualifying the right to reinstatement so that an employee returning from FMLA

leave is not entitled to “any right, benefit, or position of employment other than

any . . . to which the employee would have been entitled had the employee not

taken the leave”).11 In other words, if an employer can show that it refused to

reinstate the employee for a reason wholly unrelated to the FMLA leave, the

employer is not liable.

       The Water Works Board relies on this affirmative defense in contesting

Strickland’s interference claim. It says that its reason for discharging Strickland

had nothing to do with his purported FMLA leave; it terminated his employment

on March 5 for failing to follow Harmon’s directions in handling the customer’s

water-bill complaint. If the record established without dispute that the Board

discharged Strickland for this reason, we would affirm. The problem is that the

letter the Board wrote to Strickland on March 14 notifying him of his termination

stated that “your actions of March 5, 1997, including your insubordination and

‘walking off the job’ are considered tantamount to your resignation of employment

and therefore you are being separated effective that date.” The letter made no



       11
         The Department of Labor has issued a regulation interpreting this provision of the
FMLA so as to allow an employer to escape liability on an interference claim if the employer can
demonstrate that the employee who was denied reinstatement after FMLA leave would have
been discharged even if he had not taken FMLA leave. See 29 C.F.R. § 825.216(a).

                                              20
mention of Strickland’s purported unsatisfactory handling of the customer

complaint.

      A reasonable jury could find that the Board based its decision on Harmon’s

version of what took place on March 5, or it could choose to accept Strickland’s

version. If it chose the latter, it would find that Strickland was having a diabetic

attack that day which prevented him from doing his job, that he told Harmon that

he had to leave because of the attack, and that, before he left the job site, he

communicated this to the departmental employee responsible for recording work

absences. If a jury made these findings, the outcome of the case would turn on a

question of law: to wit, whether Strickland gave sufficient notice to his employer to

invoke the substantive protections of the FMLA.

      When an employee’s FMLA leave is “foreseeable based on planned medical

treatment,” the Act requires the employee to “provide the employer with not less

than 30 days’ [advance] notice,” if practicable. 29 U.S.C. § 2612(e)(2). Where an

employee’s need for FMLA leave due to a serious medical condition is

unforeseeable the advance notice requirement does not apply, and we have said

that “the employee need only provide [his] employer with notice sufficient to make

the employer aware that [his] absence is due to a potentially FMLA-qualifying

reason.” Gay v. Gilman Paper Co., 125 F.3d 1432, 1436 (11th Cir. 1997). The


                                           21
Code of Federal Regulations makes clear that an employee taking unforeseeable

leave “need not expressly assert rights under the FMLA or even mention the

FMLA, but may only state that leave is needed.” 29 C.F.R. § 825.303(b). Once an

employee taking unforeseeable leave informs his employer that potentially FMLA-

qualifying leave is needed, the regulations place on the employer the burden of

ascertaining whether the employee’s absence actually qualifies for FMLA

protection. See id. (“The employer will be expected to obtain any additional

required information through informal means.”).12

       If an employee tells his employer that he must leave work because he is

suffering a debilitating diabetic attack, the employee has given notice of a need for

unforeseeable leave sufficient to shift to the employer the burden of making further

inquiry into whether the absence truly qualifies for FMLA protection. If Strickland




       12
           The FMLA includes a mechanism by which an employer may ascertain whether an
employee’s absence qualifies as FMLA leave; specifically, “[a]n employer may require that a
claim that an employee is unable to return to work because of the continuation, recurrence, or
onset of [a] serious health condition . . . be supported by . . . a certification issued by the
[employee’s] health care provider.” 29 U.S.C. § 2614(c)(3)(A). The federal regulation
interpreting the certification provision of the Act states that if the certification is inadequate,
“[t]he employer shall . . . provide the employee a reasonable opportunity to cure any such
deficiency.” 29 C.F.R. § 825.305(d). The Board does not contend that it requested, or that
Strickland failed to provide, certification that his absence on March 5 was for an FMLA-covered
condition. Even if Harmon’s purported request for a note from Strickland’s physician is deemed
a request for medical certification, the Board does not contend, and there is no evidence to
indicate, that it considered the doctor’s note inadequate.

                                                22
gave Harmon the notice he says he gave before leaving work on March 5, he would

be entitled to the reinstatement benefit the FMLA provides.



                                         V.

      The district court erred in granting the Water Works Board’s motion for

summary judgment because Strickland has established an interference claim

sufficient for submission to a jury. The district court’s judgment is therefore

vacated and the case is remanded for further proceedings not inconsistent with this

opinion.

      VACATED and REMANDED.




                                         23
