                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0026n.06

                                          No. 14-5783

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

KIMBERLY ANDERSON,                                      )
                                                                                   FILED
                                                                             Jan 08, 2015
                                                        )
                                                                         DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                             )
                                                        )
v.                                                      )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
MCINTOSH CONSTRUCTION, LLC and                          )       COURT FOR THE MIDDLE
VANTACORE PARTNERS, LP,                                 )       DISTRICT OF TENNESSEE
                                                        )
       Defendants-Appellees.                            )
                                                        )



       Before: COLE and KETHLEDGE, Circuit Judges; OLIVER, District Judge.*

       KETHLEDGE, Circuit Judge.           Kimberly Anderson sued her employer, McIntosh

Construction, and McIntosh’s parent company, VantaCore Partners, under the Family and

Medical Leave Act. The district court granted summary judgment to McIntosh and VantaCore in

a thoroughly reasoned opinion. We affirm.

       Anderson started work as a finance controller in McIntosh’s accounting department in

August 2010. Soon she began having difficulty getting along with her co-worker, Carol Garza,

who Anderson says was insubordinate and who undermined Anderson’s control of the

accounting department. In December 2010, for example, Garza screamed at Anderson because

Anderson had suggested changes to McIntosh’s payroll software. R. 18-1 at 63-65. The friction

with Garza made Anderson feel stressed; the stress caused her health to deteriorate.


       *
          The Honorable Solomon Oliver, Jr., Chief Judge for the Northern District of Ohio,
sitting by designation.
Anderson v. McIntosh Construction, LLC, et al.
No. 14-5783

       On March 29, 2011, Anderson emailed her supervisor, Robert Brown, requesting

permission to work from home the following day. Anderson explained that she was already

working from home one day per week, and that doing so gave her “a MUCH NEEDED break

from the constant office chatter and tension I feel from Carol.” R. 18-1 at 89. Brown responded

that Anderson could work from home the following day, but added that working from home

should not be “a regular thing.” Id.

       Sometime later that spring, Brown decided to replace Anderson. R. 18-2 at 7. His

decision was motivated at least in part by Anderson’s repeated absences from work, at least some

of which were for doctor’s appointments. Id. at 7-8. McIntosh posted ads seeking applicants for

Anderson’s position; Anderson discovered the ads in August. R. 18-1 at 9. In October, she quit

McIntosh and accepted a similar position at Maxwell Roofing & Sheet Metal, Inc. In an email to

VantaCore’s CEO, Anderson said that “the hostile work environment” at McIntosh had “directly

caused deterioration of my physical and mental health.” R. 18-1 at 85.

       In April 2013, Anderson filed this FMLA lawsuit against McIntosh and VantaCore

(together, “McIntosh”). The district court granted summary judgment to McIntosh. We review

that decision de novo. Demyanovich v. Cadon Plating & Coatings, LLC, 747 F.3d 419, 426 (6th

Cir. 2014).

       Summary judgment is appropriate where there is no genuine dispute as to any material

fact. Id. A genuine dispute requires enough evidence for a reasonable jury to find for the

nonmoving party. Id. at 427.

       The FMLA entitles employees to twelve weeks of unpaid leave during any twelve-month

period. 29 U.S.C. § 2612(a). An employer may not “interfere with, restrain, or deny the exercise

of” an employee’s FMLA rights. Id. at § 2615(a)(1). In addition, the FMLA prohibits an


                                                 2
Anderson v. McIntosh Construction, LLC, et al.
No. 14-5783

employer from retaliating against an employee who opposes “any practice made unlawful by”

the FMLA. Id. at § 2615(a)(2).

       Anderson argues that McIntosh interfered with her exercise of FMLA rights.             To

establish a prima facie case of FMLA interference, Anderson must show, among other things,

that she was eligible for FMLA benefits and that she notified McIntosh that she needed leave.

Demyanovich, 747 F.3d at 427.

       Anderson first contends that McIntosh interfered with her FMLA rights when it failed to

offer her leave, which she says she needed to cope with the stress caused by Garza. McIntosh

responds that Anderson never notified it that she needed leave. To satisfy the FMLA’s notice

requirement, an employee must request leave and provide enough information for her employer

to know that the FMLA applies to the request. Cavin v. Honda of America Mfg., Inc., 346 F.3d

713, 723-24 (6th Cir. 2003). Anderson offers no evidence that she requested leave at all, much

less that she told McIntosh she needed leave because of a medical condition. At most, Anderson

has shown that she requested permission to work from home, away from Garza. But working

from home is still working; so that request was not a request for leave under the FMLA.

       In response, Anderson appears to contend that the FMLA required McIntosh to diagnose

her medical condition and offer leave, even in the absence of a request. But the FMLA places no

duty on an employer to grant leave without a request or notice from an employee. Brohm v. JH

Properties, Inc., 149 F.3d 517, 523 (6th Cir. 1998). Thus, the FMLA did not require McIntosh

to provide leave, because Anderson never requested it.

       Anderson also says that McIntosh interfered with her exercise of FMLA rights when

McIntosh considered her repeated absences as a negative factor in its decision to replace her. An

employer violates the FMLA if it takes an adverse employment action against an employee


                                                 3
Anderson v. McIntosh Construction, LLC, et al.
No. 14-5783

because the employee took or requested FMLA leave. See Demyanovich, 747 F.3d at 429. The

FMLA could not have protected any of the absences considered by McIntosh, however, because

Anderson was not yet eligible for FMLA-protected leave. An employee is ineligible for FMLA

benefits until she has worked for an employer for “at least 12 months.”                29 U.S.C.

§ 2611(2)(A)(1). Anderson started working at McIntosh on August 2, 2010, so she was not an

eligible employee until August 2, 2011. And McIntosh decided to fire Anderson sometime in the

spring of 2011—before she became eligible for FMLA benefits. R. 18-2 at 7. Thus, McIntosh

did not violate the FMLA when it factored Anderson’s absences into its decision to fire her.

         Finally, Anderson argues that McIntosh retaliated against her for engaging in protected

activity under the FMLA. As shown above, Anderson never requested or took FMLA-protected

leave. She has not alleged that she engaged in any other protected activity, so this argument also

fails.

         The district court’s judgment is affirmed.




                                                  4
