                                                                    [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                   FOR THE ELEVENTH CIRCUIT
                                                                           FILED
                       -------------------------------------------U.S. COURT OF APPEALS
                                    No. 05-13850                    ELEVENTH CIRCUIT
                                                                        JUNE 16, 2006
                              Non-Argument Calendar
                      -------------------------------------------- THOMAS K. KAHN
                                                                          CLERK

                  D.C. Docket No. 03-03338-CV-UWC-NE

AMY JOHNSON,

                                                       Plaintiff-Appellant,

NICOLE LE DE,

                                                       Plaintiff,

                                        versus

VINTAGE PHARMACEUTICALS, INC.,

                                                       Defendant-Appellee.


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

                                 (June 16, 2006)

Before EDMONDSON, Chief Judge, MARCUS and WILSON, Circuit Judges.
PER CURIAM:


      Plaintiff-Appellant Amy Johnson appeals the grant of judgment as a matter

of law in favor of her former employer, Defendant-Appellee Vintage

Pharmaceuticals, Inc. (“Vintage”), disposing of Plaintiff’s claims under the Family

and Medical Leave Act, 29 U.S.C. § 2601 et seq. (FMLA). No reversible error has

been shown; we affirm.

      Plaintiff learned that she was pregnant in August 2002 and, beginning in

September 2002, missed workdays as a consequence of her pregnancy. Scattered

days were missed in September, October and early November. Around

Thanksgiving of 2002, Plaintiff was diagnosed with placenta previa; starting 23

November 2002, Plaintiff did not return to work. Although Plaintiff provided

doctor’s notes for her absence through 4 February 2003, as of 4 February 2003,

Plaintiff provided Vintage with no FMLA leave form. On 4 February 2003,

Plaintiff was again told the FMLA leave form was required; Plaintiff promised to

bring the FMLA leave form to Vintage the next day.

      Plaintiff claims that she left a completed FMLA leave form with Vintage

security guards on 5 February 2003. That form -- which Vintage claims never to

have received -- released Plaintiff to work starting 5 February 2003. Plaintiff also



                                         2
claims she left at the guard shack a doctor’s note from another doctor. This note,

from Dr. Horn, said only that Plaintiff was “disabled” from 4 February 2003

through the end of her pregnancy due to low back pain. The note included no

other details; Dr. Horn did not testify at trial or by deposition. Vintage sent

Plaintiff a letter on 6 February 2003 advising that she would be terminated unless

Vintage received FMLA certification by noon on 10 February 2003; by letter

dated 10 February 2003, Plaintiff was terminated from her position at Vintage for

failing to return the FMLA form. Plaintiff contends that she received both letters

the same day; Plaintiff does not dispute that, as of the date of her termination, she

had been absent from work in excess of 12 workweeks during the preceding 12-

month period.

      FMLA provides that “an eligible employee shall be entitled to a total of 12

workweeks of leave during any 12 month period,” 29 U.S.C. § 2612(a)(1), when

“a serious health condition,” 29 U.S.C. § 2612(a)(1)(D), necessitates that the

employee be absent from work. Because Vintage already had satisfied its FMLA

mandated 12 workweek leave obligation to Plaintiff when she was terminated, the

district court entered judgment as a matter of law in favor of Vintage.

      Plaintiff argues that the district court erred because Vintage led Plaintiff to

believe that her FMLA leave would continue until 18 March 2003, before which

                                          3
time she would have qualified for long-term disability. Plaintiff argues that

Vintage purported to terminate her not for exceeding her FMLA leave, but instead

for failing to provide Vintage with FMLA forms signed by her healthcare provider

and certifying her serious health condition. But Plaintiff cites no failure of

Vintage to meet FMLA’s requirements in support of her contention that she was

eligible for FMLA leave when she was terminated. Instead, Plaintiff argues a

supra-FMLA entitlement based on Vintage’s miscalculation that her FMLA leave

extended beyond the required 12 workweek period.

      In Ragsdale v. Wolverine, 122 S.Ct. 1155 (2002), the Supreme Court

concluded that regulations providing that leave taken by an employee does not

count against an employee’s FMLA entitlement if the employer fails to designate

the leave as FMLA leave, was contrary to FMLA and beyond the authority of the

Secretary of Labor. See also, McGregor v. Autozone, Inc., 180 F.3d 1305 (11th

Cir. 1999) (earlier concluding that regulation was invalid and unenforceable that

required employer to notify employee that an absence would count against FMLA

and created additional leave entitlement if the employer failed to provide such

notice). Relying on this caselaw, the district court concluded that Plaintiff could

show no FMLA violation; Plaintiff had exhausted her FMLA protected period at

the time she was terminated.

                                          4
       That Vintage stated, at the time of termination, that Plaintiff was terminated

for failure to present timely a FMLA medical form does not obviate the undisputed

fact that Plaintiff’s 12 workweek FMLA entitlement already was exhausted. We

accept that Vintage was prepared to offer Plaintiff additional leave upon receipt of

the documentation Vintage requested, but any such largess on Vintage’s part

would be outside of FMLA. And, in any event, Plaintiff concedes that the form

upon which Vintage conditioned the leave extension was not delivered.1

       Plaintiff argues that the note she submitted from Dr. Horn sufficed to

document her entitlement in the light of Vintage’s expressed willingness to allow

leave through 18 March 2003. We note that the record shows no reliance by

Plaintiff on Vintage’s offer to extend leave: irrespective of the availability of

leave, Plaintiff claims to have been unable to return to work until after the birth of

her child. Under these circumstances, even if we were to accept that Vintage’s

representations could support the supra-entitlement which Plaintiff claims, it was




  1
    Plaintiff claims to have tendered a form (Vintage claims not to have received it) that supported
FMLA leave only through 4 February 2003. So, even if we assume that Plaintiff tendered properly
this form, it provides no support for leave extending after 4 February 2003.


                                                 5
not a FMLA entitlement; and Plaintiff failed to supply the documentation upon

which Vintage predicated its willingness to extend Plaintiff’s leave.2

        Judgment as a matter of law properly was granted at the close of Plaintiff’s

case.

        AFFIRMED.




   2
    If we were to test Plaintiff’s claim as if it were a FMLA claim, we doubt she would fare better.
Plaintiff points to Dr. Horn’s note as substantiating a FMLA qualifying disability; but Dr. Horn’s
note, without more, could not support a FMLA jury verdict for Plaintiff: at the conclusion of
Plaintiff’s case the record was devoid of evidence to show that Plaintiff’s low back pain was a
“serious medical condition,” the medical facts upon which Dr. Horn concluded Plaintiff was
“disabled,” or that the disability to which Dr. Horn referred rendered Plaintiff unable to perform the
particular functions of her position with Vintage. See 29 U.S.C. § 2612; 29 C.F.R. § 825.114.

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