     Case: 11-20580     Document: 00511977045         Page: 1     Date Filed: 09/06/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 6, 2012

                                       No. 11-20580                        Lyle W. Cayce
                                                                                Clerk

KIMBERLY MIEDEMA,

                                                  Plaintiff-Appellant
v.

FACILITY CONCESSION SERVICES, INCORPORATED, doing business as
Spectrum Catering & Concessions,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  4:09-CV-2508


Before DAVIS, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        The defendant-appellee terminated its employment relationship with the
plaintiff-appellant, Kimberly Miedema (“Miedema”), in late 2007. The district
court granted summary judgment against Miedema, dismissing her claims under
the Family and Medical Leave Act (“FMLA”) and Title VII. Because Miedema
failed to fulfill her obligations under the FMLA’s certification provisions and




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 11-20580

because she failed to offer any evidence that her employer’s proffered reason for
her termination was a pretext for retaliation, we AFFIRM.
                                       I.
    Kimberly Miedema was an employee of Facility Concession Services, Inc.,
d/b/a Spectrum Catering and Concessions (“Spectrum”). On September 28, 2007,
during Miedema’s employment with Spectrum, an incident occurred between
Miedema and another employee. Although there is much debate about the
nature of the interaction, Miedema has alleged that it was an unwelcome sexual
advance. Following the incident, Miedema did not return to work because she
was seeking treatment for post-traumatic stress disorder.
      On October 15, 2007, Spectrum’s president wrote a letter to Miedema
inquiring into the reason for her absence. Spectrum’s president requested a
written statement concerning the September 28, 2007 incident, a doctor’s
authorization to return to work, and an FMLA certification documenting her
medical condition.
      On October 23, 2007, Spectrum received a letter from Miedema’s
physician, Dr. Jeffrey Sweeney, stating that he was treating her for post-
traumatic stress disorder and that she would be unable to return to work yet. On
October 25, 2007, Spectrum wrote to Miedema and her attorney to acknowledge
receipt of Dr. Sweeney’s letter. Spectrum’s letter explained that it would
consider Miedema’s leave to be covered under the provisions of the FMLA, but
that it was also including a Department of Labor-issued standard form
“Certification of Health Care Provider” to be completed by her doctor and
returned to Spectrum within fifteen days “in accordance with the applicable
requirements of the FMLA.”
      Spectrum never received the requested certification form nor any other
response. On November 15, 2007, Spectrum again contacted Miedema and her
attorney. Spectrum’s letter explained that the completed certification was

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                                  No. 11-20580

required in order for Miedema’s leave to be covered under the FMLA. Because
Miedema never responded with a completed certification, her absence was
unexcused, and Spectrum terminated her employment.
      Miedema sued Spectrum alleging employer negligence, violations of the
FMLA’s substantive and retaliation provisions, and violations of Title VII’s
substantive and retaliation provisions. Spectrum filed a motion for summary
judgment on all claims, which the district court granted on April 11, 2011.
Miedema now appeals the district court’s denial of her substantive FMLA claim
and her FMLA and Title VII retaliation claims. Because she has not challenged
the district court’s denial of her Title VII hostile work environment and
negligence claims, we need not address them.
                                        II.
      We review an order granting a motion for summary judgment under a de
novo standard. Storebrand Ins. Co. U.K., Ltd. v. Employers Ins. of Wausau, 139
F.3d 1052, 1055 (5th Cir. 1998); BellSouth Telecommunications, Inc. v. Johnson
Bros. Group, 106 F.3d 119, 122 (5th Cir.1997). Summary judgment is warranted
when the pleadings, depositions, interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact. Fed. R. Civ. P. 56; Celotex v. Catrett, 477 U.S. 317, 322 (1986).
                                       III.
                                        A.
      In this appeal, Miedema first argues that her termination violates the
provisions of the FMLA. The FMLA guarantees to eligible employees twelve
workweeks of leave during any twelve-month period in certain enumerated
circumstances. 29 U.S.C. § 2612(a) (2006). One such circumstance is “a serious
health condition that makes the employee unable to perform the functions of
[her] position.” Id. In the instant case, it is not disputed that Miedema’s post-
traumatic stress disorder is a covered “serious health condition.” However, what

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is disputed is whether Miedema’s notice to Spectrum complied with the FMLA’s
certification requirements.
      Under the FMLA, an employer may request both an initial certification
and later, a recertification. See 29 C.F.R. §§ 825.306, 825.308 (2011). As the
district court noted, “It is not clear whether Spectrum considered its second
request for a medical certification to be another attempt to obtain an initial
medical certification or a request for recertification.” Memorandum and Order
Granting Summary Judgment (S.D. Tex. Apr. 11, 2011). The distinction is
important because the two request procedures are subject to two different sets
of requirements. Compare 29 C.F.R. § 825.306, with 29 C.F.R. § 825.308. The
district court concluded that it need not determine which type of certification
Spectrum requested, because Spectrum’s request complied with the
requirements for both. Because we find Spectrum’s request to be one for a
certification, an analysis of the recertification issue is unnecessary.
      The conclusion that Spectrum’s request is for an initial certification follows
naturally from the purposes of the two procedures. Under 29 C.F.R. §§
825.306–.307, the very nature of the certification is to apprise the employer of
a few basic items of information regarding the employee’s condition, the duration
of any disability, and its effect on employment. In contrast, the purpose of a
recertification under 29 C.F.R. § 825.308 is threefold: to verify (1) that the
employee’s condition has persisted beyond an initial recovery period, (2) that the
condition still exists in light of a significant change in circumstances, or (3) that
the employee’s condition exists in light of new information which casts doubt on
the employee’s claim.
      In this case, it is undisputed that Spectrum requested an FMLA
certification from Miedema, and that Miedema’s physician responded with a
conclusory letter. Spectrum immediately sent a second letter to Miedema,
informing her that it would cover her leave under the FMLA, but that it still

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required the information requested on the Certification of Healthcare Provider
form. The second letter does not reflect that it was being sent for any of the
reasons contemplated by the recertification provision of the FMLA. See 29 C.F.R.
§ 825.308 Rather, we read Spectrum’s letter as an attempt to obtain more
specific facts than the general information Miedema provided in her response to
the first letter. This is precisely the type of situation contemplated by 29 C.F.R.
§ 825.305(c), which allows the employer to follow up and obtain the specific
information it needs when the employee’s certification is incomplete or
conclusory. Such a request for more specific information falls within the original
request for certification and is not a request for recertification. See id.
      “An employer may require that a request for leave . . . be supported by a
certification issued by the health care provider for the eligible employee . . . . The
employee shall provide, in a timely manner, a copy of such certification to the
employer.” 29 U.S.C. § 2613(a). An employer may require that the certification
include (1) the date on which the condition commenced, (2) the probable duration
of the condition, (3) the appropriate medical facts regarding the condition and
supporting the need for leave, and (4) a statement that the employee is unable
to perform the functions of her employment position. 29 C.F.R. § 825.306(a). A
document which includes such information is statutorily deemed sufficient. See
29 U.S.C. § 2613(b).
      Here, Spectrum properly notified Miedema in writing of its request for an
FMLA certification on October 15, 2007. As the district court correctly points
out, Dr. Sweeney’s letter in response fails to provide both the beginning date of
her condition and its probable duration. It thus fails to meet the requirements
of a statutory certification. See 29 U.S.C. § 2613(b); see also Burge v. Dep’t of Air
Force, 7 F. App’x 931, 934 (Fed. Cir. 2001) (unpublished) (finding physician’s
letter to be insufficient FMLA certification under similar facts). Although
Spectrum’s initial request for FMLA certification did not specify in detail the

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information it sought, Spectrum immediately responded to Miedema’s letter by
re-requesting and attaching the previously-referenced FMLA certification sheet.
      When requested, “The employee must provide a complete and sufficient
certification.” 29 C.F.R. § 825.305(c). If an employer finds an employee’s initial
response either incomplete or insufficient, the employer shall advise her of such
and “shall state in writing what additional information is necessary to make the
certification complete and sufficient.” Id. After seven days, if a completed
certification has not been resubmitted with the requested information, “the
employer may deny the taking of FMLA leave.” Id.
      Here, upon receipt of Dr. Sweeney’s letter, Spectrum promptly notified
Miedema of its continuing need for the requested information. In its October 25,
2007 letter, Spectrum expressly stated its request for more information and
requested the completion of an attached Department of Labor “Certification of
Health Care Provider” standard form. Notwithstanding Miedema’s assertion to
the contrary, the specific provisions of the attached DOL form served to
sufficiently apprise Miedema of the information she was obliged to provide.
Because Spectrum received no response within seven days, it was entitled to
deny Miedema leave under the FMLA. See 29 C.F.R. § 825.305(c); see also Bailey
v. Sw. Gas Co., 275 F.3d 1181, 1186 (9th Cir. 2002) (finding physician’s response
inadequate where FMLA standard form was returned incomplete); 29 C.F.R. §
825.303(b) (“An employee has an obligation to respond to an employer’s
questions designed to determine whether an absence is potentially
FMLA–qualifying. Failure to respond to reasonable employer inquiries regarding
the leave request may result in denial of FMLA protection . . . .”).
      The failure of Spectrum’s second letter to advise Miedema of the
consequences of an inadequate response does not change this conclusion. The
FMLA only requires an employer to advise an employee of the consequences of
failing to respond to a certification request “[a]t the time the employer requests

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certification.” 29 C.F.R. § 825.305(d). The record shows that Spectrum fully
complied with this notice requirement in its October 15, 2007 initial request for
certification, in which it stated: “Failure to comply with all of the above . . . will
be considered an unauthorized leave and subject to termination at that time.”
The regulation contains no requirement that follow-up communications include
the same notice, and we decline to add such a requirement here.
                                         B.
      Miedema also appeals the district court’s ruling dismissing her FMLA and
Title VII retaliation claims. Both the FMLA and Title VII contain a proscriptive
provision which protects employees from retaliation or discrimination for
exercising their rights under the respective statutes. 29 C.F.R. § 825.220(c)
(FMLA); 42 U.S.C. § 2000e-3 (Title VII). The district court analyzed both of
Miedema’s retaliation claims under the traditional McDonnell Douglas pretext
framework rather than a mixed-motive framework, and this has not been
challenged on appeal. Cf. Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 335
(5th Cir. 2005) (applying mixed motives analysis rather than pretext analysis to
FMLA retaliation case); Smith v. Xerox Corp., 602 F.3d 320, 333 (5th Cir. 2010)
(applying mixed motives analysis rather than pretext analysis to Title VII
retaliation case).
      To make a prima facie showing of a retaliatory discharge under either
statute, Miedema must show that: (1) she engaged in a protected activity; (2) the
employer discharged her; and (3) that there is a causal link between the
protected activity and the discharge. See Hunt v. Rapides Healthcare Sys., LLC,
277 F.3d 757, 768 (5th Cir. 2001) (FMLA); Septimus v. Univ. of Houston, 399
F.3d 601, 608 (5th Cir. 2005) (Title VII). Under the McDonnell Douglas
framework, the burden then shifts to Spectrum to articulate a legitimate non-
retaliatory reason for the employment action. See Hunt, 277 F.3d at 768;
Septimus, 399 F.3d at 608. Once Spectrum has done so, Miedema must show

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that Spectrum’s reason is a pretext for retaliation. See Hunt, 277 F.3d at 768;
Septimus, 399 F.3d at 608. We agree with Miedema that she established a prima
facie case. It is undisputed that she was protected under the FMLA and Title VII
and that she suffered an adverse employment decision. As to the third prong, we
assume without deciding that the temporal proximity of Spectrum’s discharge
to Miedema’s FMLA and Title VII activities is sufficient to permit an inference
of causation on summary judgment.
      The burden then shifts to Spectrum to offer a legitimate non-retaliatory
reason for Miedema’s termination. Spectrum’s documented request for
information and a statement from Miedema, together with its warning that
noncompliance would result in termination, is sufficient to satisfy Spectrum’s
burden.
      Finally, the burden shifts back to Miedema to offer some evidence that
Spectrum’s explanation is pretext. “A party opposing such a summary judgment
motion may not rest upon mere allegations contained in the pleadings, but must
set forth and support by summary judgment evidence specific facts showing the
existence of a genuine issue for trial.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d
455, 458 (5th Cir. 1998), citing Anderson v. Liberty Lobby, 477 U.S. 242, 255–57
(1986). We agree with the district court that Miedema has only restated her
underlying FMLA claim without raising any fact issues or submitting any
evidence that Spectrum’s proffered reason is pretext. As a result, Miedema’s
retaliation claims cannot survive summary judgment. See, e.g., Hunt, 277 F.3d
at 768 (reaching same conclusion in FMLA context); Septimus, 399 F.3d at 611
(reaching same conclusion in Title VII context).
                                       IV.
      For the reasons stated above, the district court order granting summary
judgment and dismissing all of the appellant’s claims is affirmed.



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                             No. 11-20580

AFFIRMED




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