                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-1438


LYNN H. BRUSHWOOD,

                Plaintiff – Appellant,

          v.

WACHOVIA BANK, N.A.; WELLS FARGO BANK, N.A.,

                Defendants – Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:10-cv-00565-SGW-RSB)


Submitted:   March 8, 2013                 Decided:   April 11, 2013


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished opinion.        Judge Duncan wrote      the
opinion, in which Judge Wilkinson and Judge Shedd joined.


Terry N. Grimes, GRIMES & WILLIAMS, P.C., Roanoke, Virginia, for
Appellant.   Dana L. Rust, Briton K. Nelson, MCGUIREWOODS LLP,
Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

     Lynn Brushwood sued her former employer, Wells Fargo Bank,

N.A., (“Wells Fargo”) for interfering with her right to take

protected medical leave in violation of the Family and Medical

Leave Act, 29 U.S.C. § 2611 et seq. (2009) (the “FMLA”).                    Wells

Fargo   maintained      that   Brushwood    failed   to    provide     it    with

adequate notice that she sought FMLA leave.               The district court

agreed, granting summary judgment in the bank’s favor.                 Echoing

the district court’s well-reasoned opinion, we affirm.


                                      I.

                                      A.

     “In considering the grant of a motion for summary judgment,

we view facts and inferences drawn from them in the light most

favorable to the non-moving party.”           Dulaney v. Packaging Corp.

of Am., 673 F.3d 323, 324 (4th Cir. 2012).

     Brushwood     began    working   for   Wells    Fargo’s       predecessor,

Wachovia   Bank,   in    1998.    Although    she    filled    a    variety   of

positions during her tenure, she most recently held a stationary

post as a customer service representative in the bank’s Roanoke,

Virginia operations center.        Prior to the events underlying this

suit, Brushwood took FMLA leave three separate times: “in 1998

to recover from surgery, in 2001 to recover from surgery, and in

2009 during treatment for depression.”               Brushwood v. Wachovia


                                      2
Bank, N.A., No. 7:10-cv-00565, 2012 WL 642216, at *1 n.2 (W.D.

Va. Feb. 28, 2012).

        In January 2010, Wells Fargo instituted a “point system”

attendance policy.       Under the system, Wells Fargo added points

to   an     employee’s    record    for   consistent     attendance     and

punctuality and subtracted points for unscheduled absences and

tardiness.     A balance of negative forty-one points prompted an

informal     warning;    negative     fifty-seven      points   triggered

termination.     FMLA leave triggered no point reduction.             It is

undisputed that due to unscheduled absences between January and

April 2010, Brushwood accumulated negative 62.5 points.          Instead

of terminating her as it could have done under the point system,

Wells Fargo formally warned Brushwood in a letter dated April

20, 2010.

     On Saturday, May 1, 2010, Brushwood was hanging curtains in

her living room when she stepped onto her folding couch’s metal

reclining mechanism and cut the sole of her foot.           The cut bled

initially, then stopped after her husband cleaned and wrapped

the wound.     On Sunday, May 2, however, Brushwood’s husband drove

her to the Carilion Urgent Care facility because she was in

pain.     The attending physician, Dr. Mary Leatherland, examined

the cut, noting that it was “3 cm in length” and “superficial

with skin flap in[t]act over length of wound.”             J.A. 44.     The

doctor saw no need for stitches and “left [the wound] open to

                                     3
heal.”      Id.     Dr. Leatherland gave Brushwood a tetanus shot,

cleaned and wrapped the cut, and prescribed pain medication.

She also wrote Brushwood a note instructing her to miss work for

one day--Monday, May 3, 2010.            When Brushwood expressed surprise

to the attending nurse about receiving only one day of excused

absence, the nurse confirmed the one-day limitation.

      When she returned home, Brushwood called her Wells Fargo

supervisor,       Doris    Kent,   and     left      a   message   describing   her

injury.     On the morning of Monday, May 3, Brushwood telephoned

Kent to explain that she had injured her foot and visited the

urgent care facility, and that she had a doctor’s note to miss

work for one day.          Kent expressed concern that any absence on or

beyond Monday, May 3 would trigger Brushwood’s termination, as

Brushwood     had    exceeded      the     allowed        points   for   unexcused

absences.     Kent asked Brushwood if she could “go to her personal

doctor to see if he would keep her out longer than one day where

she   would   be    able    to   qualify       for   short-term    disability   and

FMLA.” 1    J.A. 224.       Brushwood told Kent that “her doctor would

not override what the emergency room doctor had told her” so she

would only have one excused day of absence.                        Id.   Brushwood

      1
       In her deposition, Brushwood said she could not remember
Kent asking her about obtaining a note from her personal
physician, but she did not deny the conversation, either. J.A.
307 (“I’m not gonna say that conversation didn’t take place. I
don’t recall that conversation.”).


                                           4
explained that she had “even called over to Carilion” on Monday,

May 3 to ask about extending her absence from work.                        Id. at 153.

The urgent care facility reiterated the one-day limitation.

     On Tuesday, May 4, Brushwood telephoned Kent to tell her

she would be unable to come to work.                    Kent called Brushwood back

to tell her that Wells Fargo was terminating her employment.                           On

Friday,    May   7,    Brushwood       came       to   the   office   on   crutches     to

remove    her    things    and    sign        her      termination    papers.         That

paperwork listed “violation of attendance policy” as the reason

for her removal.        J.A.    28.

     Brushwood        visited    her    personal        physician     on   May   7,    her

first doctor’s visit since Sunday, May 2.                      He noted a “slightly

swollen” “2 cm laceration to the ball of [Brushwood’s] foot.”

J.A. 50.    Over three months after her termination, on August 20,

2010, Brushwood had a surgeon remove a cyst that had grown over

the scar on her sole after two nonsurgical injections failed to

correct it.      According to Brushwood, her foot has not yet fully

healed.

                                          B.

    On December 20, 2010, Brushwood filed a complaint in the

Western District of Virginia, alleging that Wells Fargo violated

the Americans with Disabilities Act (the “ADA”) and the FMLA.




                                              5
The    parties      filed       cross-motions           for     summary     judgment       on

Brushwood’s FMLA claim. 2

       The    district      court     granted          Wells    Fargo’s     motion    after

finding that Brushwood failed to put Wells Fargo on notice that

she   was    requesting        FMLA   leave       as    the     statute’s    implementing

regulations require.            It reasoned that since Brushwood failed to

provide       “‘sufficient        information’            for     [Wells     Fargo]        ‘to

reasonably determine’” that the FMLA might apply to her leave

request, the bank did not violate the FMLA by terminating her in

accordance      with     its     attendance       policy.         Brushwood,     2012       WL

642216, at *1 (citing 29 C.F.R. § 825.303(b)).                              Although the

district court’s rationale rested on Brushwood’s failure to give

adequate       notice,      it      explained          that      even     assuming     that

Brushwood’s May 7 office visit on crutches indicated “that she

in    fact    had   a     serious      medical          condition       under   the    FMLA

justifying her absences,” “‘notice that comes after an alleged

interference with an employee’s FMLA rights is ineffective, even

if    the    content    would     have   been          sufficient.’”         Id.,     at   *4

(quoting Couick v. Morgan, No. 4:10-cv-153, 2010 WL 5158206, at

*3 (S.D. Ga. Dec. 14, 2010)).            This appeal followed.




       2
           Brushwood voluntarily dismissed her ADA claim.


                                              6
                                II.

     The issue before us is whether Brushwood provided adequate

notice of an FMLA-qualifying condition as a matter of law.      We

conclude she did not.

     We review the district court’s summary judgment ruling de

novo.    Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 149 (4th

Cir. 2010).    Summary judgment is appropriate when there is no

genuine issue of material fact, and the moving party is entitled

to summary judgment as a matter of law.   Id.

     The FMLA “entitles eligible employees to take up to twelve

weeks of unpaid leave in any twelve-month period for qualifying

medical or family reasons.” 3   Rhoads v. FDIC, 257 F.3d 373, 381-



     3
       Wells Fargo also contends that Brushwood did not have an
FMLA-qualifying   “serious  health   condition.”   Because  our
determination on the question of notice is dispositive, we need
not address whether she actually had an FMLA-qualifying
condition.    We note, however, that the regulations define a
qualifying “serious health condition” as an “illness, injury,
impairment, or physical or mental condition that involves . . .
continuing treatment by a health care provider.”    29 C.F.R. §
825.113.    “Continuing treatment by a health care provider”
means:

     A period of incapacity of more than three consecutive,
     full calendar days, and any subsequent treatment or
     period of incapacity relating to the same condition,
     that also involves: (1) Treatment two or more times,
     within 30 days of the first incapacity . . . or (2)
     Treatment by a health care provider on at least one
     occasion, which results in a regimen of continuing
     treatment under the supervision of the health care
     provider.

(Continued)
                                 7
82       (4th   Cir.     2001)     (footnote         omitted)         (citing     29    U.S.C.     §

2612(a)(1)).           “An employee is mandated to provide notice to her

employer when she requires FMLA leave.”                               Id. at 382; see also

Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir.

1999) (“[T]he employer’s duties are triggered when the employee

provides enough information to put the employer on notice that

the      employee      may    be    in   need    of     FMLA        leave.”);     Rodriguez       v.

Smithfield Packing Co., 545 F. Supp. 2d 508, 515-16 (D. Md.

2008)       (“The      core    requirements          for       triggering       an     employer’s

obligations [under the FMLA] are a serious health condition and

adequate           communication,             meaning          a     timely       communication

sufficient to put an employer on notice that the protections of

the Act may apply.”).

          Proper     notice        “‘make[s]      the      employer          aware     that    the

employee        needs        FMLA-qualifying          leave’”          and    includes        “‘the

anticipated timing and duration of the leave.’”                                      Rhoads, 257

F.3d at 382-83 (quoting 29 C.F.R. § 825.302(c)).                                “The employee,

however, ‘need not expressly assert rights under the FMLA or

even mention the FMLA, but may only state that leave is needed .

.    .    .’”      Id.   (quoting        29    C.F.R.      §       825.302(c));      see   also    §

825.303(b)           (providing          similar           notice        requirements          for




Id. § 825.115(a)(1)-(2).


                                                 8
unforeseeable FMLA leave).               Once the employee has provided at

least verbal notice of a serious health condition sufficient to

alert the employer to the fact that the protections of the FMLA

may apply, “[t]he employer should inquire further to ascertain

whether it is FMLA leave that is being sought and to obtain

further details of this leave.”                Rhoads, 257 F.3d at 383.

       Taking the facts in the light most favorable to Brushwood,

she    has    failed     to    meet     the       threshold     notice    requirement.

Brushwood      informed       Wells    Fargo      on   Sunday,    May    2,   2010,   and

Monday, May 3, 2010, that she had cut her foot and that Dr.

Leatherland would only write her a note reflecting a need for

her to miss work for one day (Monday, May 3).                            As Doris Kent

knew that absence on or beyond May 3 would lead to Brushwood’s

termination, Kent suggested that Brushwood approach her personal

physician “to see if he would keep her out longer than one day

where she would be able to qualify for short-term disability and

FMLA.”       J.A. 224.      Brushwood replied that one day was “all that

the emergency room doctor had written her out for,” and that

“her     doctor     would     not     override”        Dr.    Leatherland’s      one-day

limitation.       Id. at 223-24.         Brushwood admitted that the urgent

care     facility    denied      her    subsequent           request    for   additional

excused time off.

       This information--all that Wells Fargo had at the time it

initiated      Brushwood’s       termination--was            simply    insufficient   to

                                              9
put Wells Fargo on notice that Brushwood had an FMLA-qualifying

“serious health condition” that would result in “[a] period of

incapacity of more than three consecutive, full calendar days”

and “[t]reatment two or more times” or “a regimen of continuing

treatment under the supervision of [a] health care provider.”

29    C.F.R.    §   825.115(a)(1)-(2).          Indeed,    the     facts   actually

indicate that at the time Brushwood notified Wells Fargo of her

May 3 absence, she did not believe a doctor would excuse her for

more than one day.         As the district court aptly summarized:

       Brushwood’s message objectively viewed distills to
       this: Brushwood’s treating physician did not believe
       her condition to be sufficiently serious to justify
       her absence from work for more than a single day and
       Brushwood thought it futile, and would not request, an
       excuse from her personal physician.

Brushwood, 2012 WL 642216, at *4.

       Brushwood’s attempt to analogize her notice to that given

in Cavin v. Honda of America Manufacturing, Inc., 346 F.3d 713

(6th    Cir.    2003),     is   unavailing      because    Cavin    is     factually

distinguishable from the case at hand.                    In Cavin, the Sixth

Circuit held that the employee had given Honda proper notice of

his need for FMLA-qualifying leave when he called in to say he

had    been    in   a   motorcycle   accident,      had   been   treated     at   the

emergency room, and was unable to work as a result, even though

he did not specify that he would be out for more than one day.

Id.    at   724-25.      The    employee    later   produced     notes     from   two


                                           10
doctors excusing him for every day he had missed.                            Id. at 717.

Unlike     the      employee      in    Cavin,       however,        when    Brushwood’s

supervisor inquired as to her condition and term of absence,

Brushwood informed her that a doctor would not excuse her for

more than one day.           We note as well that unlike Cavin, Brushwood

has never produced any doctor’s note stating she could not work

during the relevant period.

      We     find    the   facts    and    analysis         in     Stoops   v.    One   Call

Communications,        Inc.,      141     F.3d      309     (7th     Cir.   1998),      more

instructive here.            There, the employee, Stoops, provided his

employer, One Call, with a doctor’s note indicating that his

chronic fatigue syndrome was not an FMLA-qualifying condition.

One   Call    then    fired      Stoops    for      excessive       absences      after   he

continued     to    miss   work     based      on    the    disqualified         condition.

Stoops sued for FMLA interference, claiming “One Call had to . .

. request another physician’s certification if it needed more

information.”         141 F.3d at 313.              The Seventh Circuit rejected

Stoops’ claim and concluded that “Stoops was the person most

able to determine that the initial certification was ‘wrong’ and

was the person with the incentive, certainly the burden, to have

it corrected.”         Id.       Because “Stoops did nothing to obtain a

contrary      opinion”     and     in   fact     never      “obtain[ed]      a    contrary

opinion”     prior    to   summary      judgment          proceedings,      the    employer

correctly relied on the certification stating that his chronic

                                            11
fatigue syndrome was not an FMLA-qualifying health condition.

Id.

       While       Stoops    is    distinguishable              because       One     Call       had   a

doctor’s note indicating that Stoops’ condition was not FMLA-

qualifying, the case nevertheless supplies a useful framework

for analyzing a situation in which an employee disagrees with a

doctor’s      diagnosis       but       submits      no    contrary           medical       opinion.

Although Wells Fargo did not have the benefit of a prior medical

certification         here,       it    did   have       notice,        as    of     May    4,    that

Brushwood       (1)   could       not    obtain      a    note     from       the     urgent      care

doctor for more than one day of excused absence, and (2) did not

think     she      could    obtain        a   longer           excuse    from        her     primary

physician.         As an FMLA-qualifying “serious health condition” is

one    that     results      in    incapacity        for        three        full,    consecutive

calendar days, Wells Fargo was not on notice that Brushwood was

suffering from an FMLA-qualifying condition when it terminated

her employment.

       Even were we to find, and we do not, that Brushwood’s use

of    crutches      on     Friday,      May   7,     or    August        2010        cyst    removal

surgery       constituted          notice      of         an     FMLA-qualifying                health

condition, notice given after termination does not suffice to

trigger       an    employer’s         FMLA   duties.            See     Aubuchon          v.    Knauf

Fiberglass, GmbH, 359 F.3d 950, 953 (7th Cir. 2004) (rejecting

employee’s FMLA interference claim when the employee produced

                                               12
notice of a serious health condition “after he was fired” which

was “too late”).

       Brushwood attempts to muddy the notice issue by contending

that, although she learned she would be terminated on Tuesday,

May 4, she was not actually fired until Friday, May 7, when she

signed her termination papers in the office.               Appellant’s Br. at

23.    As such, she argues that Wells Fargo had notice that she

“had    been   incapacitated    for    a     period   of    more    than      three

consecutive,    full     calendar    days”    at   the     time    of   technical

termination.     Id.    While novel, Brushwood’s contention that she

could simply stay home for three days and then claim she was

incapacitated without producing an iota of medical evidence to

support that fact is incurably flawed.                As Wells Fargo aptly

rejoins: “What [Brushwood] could not do is ignore the existing

medical evidence, refuse to see another medical provider, decide

not to work, and expect her employer to conclude that her leave

might be covered by the FMLA.”         Appellee’s Br. at 18.

       Brushwood failed to give Wells Fargo adequate notice that

she was requesting FMLA-qualifying leave in the first instance.

Her contentions that the bank “jumped the gun” by not requesting

further    medical     information    and    terminating     her    before     she

produced   qualifying     medical     information     to    support     her    FMLA

claim are therefore unavailing.



                                      13
                            III.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                     AFFIRMED




                             14
