                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-1476


BARRY R. GAINSBURG,

                Plaintiff - Appellant,

           v.

STEBEN & CO., INC.; KENNETH E. STEBEN,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:10-cv-00715-PJM)


Argued:   March 19, 2013                  Decided:   April 29, 2013


Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Philip J. Sweitzer, PHILIP J. SWEITZER, LLC, Baltimore,
Maryland, for Appellant.   Eric Hemmendinger, SHAWE & ROSENTHAL,
LLP, Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      This    litigation       stems    from   appellant       Barry    Gainsburg’s

termination     by     his   former     employer,      appellee      Steben    &   Co.

Gainsburg     alleges    that     the   firm   and    its    president,       appellee

Kenneth Steben, unlawfully discharged him in violation of the

Maryland     Flexible    Leave    Act    (“MFLA”),     Md.    Code   Ann.,     Lab.   &

Empl. § 3-802, which, inter alia, prohibits retaliation against

an employee who “has taken leave authorized under” the statute.

      On November 16, 2009, Gainsburg sought to reclassify his

previously scheduled December vacation as medical leave because

his father had recently fallen ill. The appellees maintain that,

because of “a series of issues and incidents” that demonstrated

Gainsburg was “not competent,” Steben & Co. was already well

into the process of hiring a replacement for him when he made

this request. Br. of Appellees at 2. Four days after Gainsburg

sought   to   change     the    status    of   his    future    leave,      the    firm

terminated      him,     having     offered     his     position       to      another

individual three days earlier.

      In March 2010, Gainsburg commenced this diversity action

against both Steben & Co. and Kenneth Steben in the District of

Maryland, seeking monetary damages for his allegedly unlawful

discharge. At the motion-to-dismiss phase, Gainsburg argued that

his   request    to     take     protected     leave    was    itself       protected

activity because the MFLA requires employees to take leave in

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accordance with established employer policy, see Md. Code Ann.,

Lab.    &   Empl.     §    3-802(e)(2),         and    here,       Steben    &    Co.     policy

required employees to provide advance notice before taking any

leave. Thus, Gainsburg contended, the fact that he requested but

never actually took the leave at issue should not categorically

bar a court from granting him relief under the MFLA.

       The trial court disagreed and dismissed Gainsburg’s claim,

finding that he was not subject to the protections of the MFLA

because      he      had     not       “taken       leave     authorized          under”     the

statute. See id. § 3-802(f)(1). Rather, the court concluded,

Gainsburg        merely    gave     advance         notice    of    an     intent       to   take

protected leave sometime in the future, placing him outside the

scope of the relevant statutory language.

       On appeal, Gainsburg presses the same primary argument made

below,      namely    that       “when    an    employee      complies       with       employer

policy      in    using    leave,        by   giving    the    employer       the    required

advance notice under the employer’s policy, he has ‘taken’ leave

under     the    statute.”       Br.     of    Appellant      at    21.    But    Gainsburg’s

argument once again misses the mark because, by its very terms,

the MFLA applies only to an employee who “has taken leave,” not

to   an     employee       who     has    taken      preliminary          steps    to    obtain

employer approval for leave. The clear language of the statute

precludes any vague, atextual argument that requesting leave or

providing notice of leave -- rather than actually taking it by

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spending time away from work -- constitutes protected activity.

As the district court correctly noted, Gainsburg has not “taken

leave” protected by the statute; he requested future leave and

was   terminated   before   his   leave   began.   Therefore,   he   cannot

state a claim for wrongful termination under the MFLA. *

      Having reviewed the briefs and heard argument, we find no

error in any of the trial court’s rulings. We thus affirm the

judgment.

                                                                 AFFIRMED

*
     In the proceedings below, Gainsburg sought to certify a
question to the Court of Appeals of Maryland to determine
whether the MFLA should be interpreted to protect his request
for leave. The district court declined to certify the question,
and we review that decision under the familiar abuse-of-
discretion standard. See Public Citizen, Health Research Grp.
v. Comm’n on Med. Discipline of Md., 573 F.2d 863, 866 (4th Cir.
1978) (per curiam). Given the deference owed to district courts
on issues of certification and the clear meaning of the phrase
“has taken leave” in the context of this case, the district
court in no way abused its discretion in rejecting Gainsburg’s
certification request.

     Gainsburg also appeals the dismissal of a defamation claim
concerning statements made by Steben & Co. officers to the
effect that Gainsburg was trying to “extort” the firm by
overzealously   discharging  his   duties  as  chief  compliance
officer. The district court dismissed this defamation claim --
presented for the first time in Gainsburg’s second amended
complaint -- on statute-of-limitations grounds, finding that it
did not relate back to the filing of the original complaint. As
the district court correctly noted, Gainsburg’s prior complaints
did not fairly put the appellees on notice that Gainsburg was
pursuing relief based on the “extort” statement, and thus the
added claim does not relate back. See Grattan v. Burnett, 710
F.2d 160, 163 (4th Cir. 1983). Dismissal on statute-of-
limitations grounds was therefore appropriate.



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