                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                         June 7, 2018
                     _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
DIANA DULANY,

       Plaintiff - Appellant,

v.                                                  No. 17-5083
                                        (D.C. No. 4:16-CV-00149-JHP-FHM)
MEGAN BRENNAN, in her official                      (N.D. Okla.)
capacity as Postmaster General of
the United States Postal Service,
UNITED STATES POSTAL
SERVICE,

       Defendant - Appellee.
                   _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges.
                _________________________________

      Ms. Diana Dulany sued her former employer, the United States Postal

Service (USPS), under the Family and Medical Leave Act (FMLA),

29 U.S.C. §§ 2601–2654, asserting interference and retaliation. In claiming


*
      The parties do not request oral argument, and it would not materially
help us to decide this appeal. As a result, we are deciding the appeal based
on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
retaliation, Ms. Dulany alleges that she was constructively discharged. The

district court granted summary judgment to USPS on all claims, and

Ms. Dulany appeals. We affirm.

I.    Ms. Dulany takes FMLA leave and ultimately resigns.

      Ms. Dulany was a longtime USPS employee who worked at USPS’s

plant in Tulsa. In 2014, she took FMLA leave to care for her elderly

mother. But Ms. Dulany also experienced problems of her own, and she

was diagnosed in 2015 with anxiety disorder and attention deficit disorder,

leading her to take FMLA leave on an intermittent basis.

      At roughly the same time, Ms. Dulany experienced work-related

problems unrelated to FMLA leave. For example, she sometimes missed

work, arrived late, or left early. As a result, USPS issued Ms. Dulany three

warning letters.

      After receiving these letters, Ms. Dulany notified USPS that she

would miss most of December 2015 because of “acute stress response.”

Appellant’s App’x at 60. She neither requested FMLA leave nor responded

to USPS’s requests for additional information, which resulted in a fourth

warning letter and designation of Absent Without Official Leave. This

designation required Ms. Dulany to return the pay that she had collected

during her absence.




                                     2
      Her circumstances worsened in early 2016. She was reassigned to a

less desirable area of the plant and obtained a new schedule that she

considered less desirable. Roughly six months later, she resigned.

II.   The district court did not err in granting summary judgment to
      USPS.

      Ms. Dulany contends that the district court erred by granting

summary judgment. We disagree.

      A.    Standard of Review

      In considering Ms. Dulany’s contentions, we engage in de novo

review. Felkins v. City of Lakewood, 774 F.3d 647, 650 (10th Cir. 2014).

Summary judgment was appropriate only if USPS had shown (1) the

absence of a genuine dispute of material fact and (2) an entitlement to

judgment as a matter of law. Fed. R. Civ. P. 56(a). To assess this two-part

burden, we view the evidence in the light most favorable to Ms. Dulany.

See Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

      B.    The FMLA Claims

      Under the FMLA, employees can take leave for twelve weeks a year

for specified reasons. 29 U.S.C. § 2612(a)(1). These reasons include caring

for a parent with a serious health condition and inability to work because

of a serious health condition. 29 U.S.C. § 2612(a)(1)(C)–(D). If a specified

reason is invoked, the employer cannot interfere with the employee’s

request for leave or retaliate against the employee’s exercise of rights


                                      3
under the FMLA. See 29 U.S.C. § 2615(a)(1)–(2). Ms. Dulany alleges both

interference and retaliation.

      1.    Interference

      Ms. Dulany claims interference with the FMLA by (1) failing to

consider her December 2015 absence as FMLA leave and (2) denying a

request for paid sick leave in February 2016. To prevail on these claims,

Ms. Dulany must show an entitlement to FMLA leave, the existence of an

adverse action that interfered with her right to take FMLA leave, and a

relationship between USPS’s actions and the exercise of FMLA rights. See

Dalpiaz v. Carbon Cty., 760 F.3d 1126, 1132 (10th Cir. 2014). In our view,

a reasonable fact-finder could not have found interference with

Ms. Dulany’s exercise of her FMLA rights.

      First, Ms. Dulany argues that USPS interfered with her FMLA rights

by failing to designate her December 2015 absence as FMLA leave. But as

USPS points out, Ms. Dulany was not entitled to FMLA leave for her

December absence because she had failed to provide the requested

information.

      Employees generally need not expressly assert FMLA rights;

however, some form of notice is required. 29 C.F.R. §§ 825.301(b),

825.302(c). Ms. Dulany argues that she provided such notice.

      With the alleged notice, USPS could inquire if it needed more

information. 29 C.F.R. § 825.302(c). For example, USPS could ask for

                                     4
“medical certification to support the need for such leave” or require

Ms. Dulany to follow the regular procedural requirements for obtaining

leave. 29 C.F.R. § 825.302(c)–(d). USPS could deny FMLA leave if

Ms. Dulany failed to respond to the inquiries or, absent unusual

circumstances, to follow the procedural requirements. Id.

      On December 3, 2015, Ms. Dulany notified USPS that she would be

out for three weeks. With this notification, she submitted

           a “Request for or Notification of Absence” form that listed the
            “Type of Absence” as “Sick” and

           a counselor’s recommendation of release from work based on
            Ms. Dulany’s “acute stress response.”

Appellant’s App’x at 59–60. Ms. Dulany had never requested FMLA leave

for her December absence or complied with USPS’s policy requiring a

medical certification.

      USPS inquired on December 11, 2015, reminding Ms. Dulany of her

obligation to comply with USPS’s requirements. If she could not work, she

needed to “report [her] unscheduled absence” and provide a “current

medical certification to substantiate [her] absence.” Id. at 62. If

Ms. Dulany’s “absence [fell] within the FMLA provisions,” she also had to

“submit documentation in accordance with the instructions contained in”

the letter. Id. While reminding Ms. Dulany of her obligations, USPS

supplied a description of employee rights and responsibilities under the

FMLA and the required certification forms, adding that failure to comply
                                       5
with the instructions would result in discipline and designation as Absent

Without Official Leave. Ms. Dulany never responded or submitted any of

the necessary documents to USPS.

      When Ms. Dulany returned to work on January 6, 2016, she provided

a letter from a psychologist that stated: “[Ms. Dulany] is currently absent

from work due to her intermittent FMLA specified reasons. She is unable

to perform her daily functions and responsibilities due to this. She will be

released to return to work on 1/6/16.” Id. at 72. But the district court

concluded that the psychologist’s letter did not create a genuine dispute of

material fact, reasoning that

           Ms. Dulany’s absence had not fallen within her previously
            approved FMLA leave, which was limited to intermittent leave
            of “1-2x per month” and “2-3 days per episode,” Appellee’s
            Supp. App’x at 73, and

           Ms. Dulany had not requested FMLA leave for her December
            absence.

      In her opening brief, Ms. Dulany fails to address the district court’s

reasoning, which is fatal to her appeal on the interference claim. See

Starkey ex rel. A.B. v. Boulder Cty. Soc. Servs., 569 F.3d 1244, 1252 (10th

Cir. 2009) (“When an appellant does not challenge a district court’s

alternate ground for its ruling, we may affirm the ruling.”); see also

Lebahn v. Nat’l Farmers Union Unif. Pens. Plan, 828 F.3d 1180, 1188

(10th Cir. 2016) (“When a district court dismisses a claim on two or more



                                      6
independent grounds, the appellant must challenge each of these

grounds.”).

      In her reply brief, Ms. Dulany seeks to avoid the need for notice

based on an “unusual circumstance.” Appellant’s Reply Br. at 3 (internal

quotation marks omitted). This argument was presented too late in the

appeal and was forfeited because it was not raised in the district court. See

Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229, 1236 n.2

(10th Cir. 2016) (holding that an argument was “too late” because it was

presented for the first time in the appellant’s reply brief); Evanston Ins.

Co. v. Law Office of Michael P. Medved, P.C., ___ F.3d ___, No. 16-1464,

2018 WL 2306871, at *3 (10th Cir. May 22, 2018) (holding that an

argument was forfeited because it had not been raised in district court).

But even if the argument had come earlier, it would not have created a

genuine dispute of material fact.

      The applicable regulations excuse compliance with an employer’s

requirements in “unusual circumstances.” 29 C.F.R. § 825.302(d). For

example, if the policy requires employees to call a specific telephone

number when seeking FMLA leave, compliance may be excused if the

voice mailbox is full and no one answers the call. See id.




                                      7
     In her reply brief, Ms. Dulany identifies the “unusual circumstance”

as the fact that a USPS counselor had ordered her off work. 1 The counselor

had relieved Ms. Dulany from working between December 3, 2015, and

December 24, 2015. But the counselor’s alleged instruction did not provide

a reason why Ms. Dulany would be unable to comply with USPS’s

requirement for additional information. See Strouder v. Dana Light Axle

Mfg., LLC., 725 F.3d 608, 615 & n.7 (6th Cir. 2013) (holding that the

employee had failed to present evidence of unusual circumstances as

required to excuse violation of the employer’s call-in requirements). Thus,

even if Ms. Dulany’s argument had been made earlier, it would not have

created a genuine dispute of material fact.

     Ms. Dulany also alleges interference in February 2016 when USPS

gave her sick leave without pay. But USPS approved Ms. Dulany’s request

for FMLA leave; USPS simply denied her paid leave. See Appellant’s

App’x at 88 (noting that Ms. Dulany’s leave request was “Approved” and

“FMLA Protected”). Contrary to Ms. Dulany’s suggestion, the FMLA does

not guarantee paid leave. See Metzler v. Fed. Home Loan Bank of Topeka,

464 F.3d 1164, 1180 (10th Cir. 2006) (“The FMLA guarantees the

substantive rights of up to twelve weeks of unpaid leave . . . .” (emphasis

added)); 29 C.F.R. § 825.207(a) (“Generally, FMLA leave is unpaid

1
      In her opening brief, Ms. Dulany cites § 825.302(d) but fails to
allege any “unusual circumstances.”

                                      8
leave.”). Thus, Ms. Dulany has not identified a genuine dispute of material

fact on this issue.

      2.      Retaliation

      Ms. Dulany also claims that USPS retaliated against her for taking

FMLA leave by issuing the warning letters and transferring her to a less

desirable position. “Retaliation claims under the FMLA are subject to the

burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802–04 (1973).” Metzler, 464 F.3d at 1170.

      Under McDonnell Douglas, Ms. Dulany bears the initial burden of

establishing “a prima facie case of retaliation.” Id. If she satisfies this

burden, USPS must identify a “legitimate, non-retaliatory reason for the

employment action.” Id. If USPS does so, Ms. Dulany would need to show

that USPS’s “proffered reason [was] pretextual.” Id. We conclude that even

if Ms. Dulany had established a prima facie case of retaliation, 2 USPS

identified a non-retaliatory reason and Ms. Dulany failed to demonstrate

pretext.

      According to USPS, it issued the warning letters based on four policy

violations:

2
      For a prima facie case, Ms. Dulany must prove causation. Metzler,
464 F.3d at 1171. According to Ms. Dulany, the district court erred in
defining the test for causation. But we may assume, for the sake of
argument, that Ms. Dulany established a prima facie case. With this
assumption, we need not address whether the district court erred in
defining the test for causation.

                                       9
      1.    Ms. Dulany disregarded instructions to work on particular
            dates.

      2.    She arrived late or left early on seventeen occasions.

      3.    She failed to report to work on a particular date.

      4.    She failed to respond to the inquiry regarding her December
            absence.

As the district court concluded, these reasons are facially legitimate and

non-retaliatory.

      Ms. Dulany has not identified any evidence of pretext. She alleges

pretext based on

           the proximity between her use of FMLA leave and USPS’s
            adverse actions and

           USPS’s “pattern of antagonism.”

Appellant’s Opening Br. at 29. But “temporal proximity alone is

insufficient to raise a genuine issue of material fact concerning pretext.”

DePaula v. Easter Seals El Mirador, 859 F.3d 957, 976 (10th Cir. 2017)

(internal quotation marks omitted). And Ms. Dulany does not deny that she

violated the cited policies. We thus conclude that there is no genuine

dispute of material fact on Ms. Dulany’s retaliation claim based on the

warning letters.

      On appeal, Ms. Dulany also urges retaliation based on her transfer to

a less desirable position. But she failed to present this argument when

responding to the summary-judgment motion. This omission resulted in


                                     10
forfeiture of the argument. See Anderson, 827 F.3d at 1236 n.2; Evanston

Ins. Co., 2018 WL 2306871, at *3.

      3.    Ms. Dulany’s Allegation of Constructive Discharge

      In alleging retaliation, Ms. Dulany seeks a declaratory judgment

stating that she was constructively discharged. We are unsure whether

Ms. Dulany intended to assert constructive discharge as a distinct theory of

liability. 3 The district court apparently viewed constructive discharge as a

distinct theory and concluded that Ms. Dulany’s evidence was insufficient

to avoid summary judgment. Ms. Dulany’s allegation of constructive

discharge is based on USPS’s warning letters, transfer to a less desirable

position, and schedule changes. 4 If constructive discharge had involved a

distinct theory, the district court’s grant of summary judgment would have

been correct.

      An employer constructively discharges an employee by creating

“working conditions so intolerable that a reasonable person in the

employee’s position would feel forced to resign.” Strickland v. United

Parcel Serv., Inc., 555 F.3d 1224, 1228 (10th Cir. 2009) (internal

quotation marks omitted). “The standard is objective: the employer’s

3
      In her opening brief, Ms. Dulany appears to treat constructive
discharge as a way to prove an adverse employment action, which she
identifies as an element of her retaliation theory.
4
     Ms. Dulany also cites the denial of her request for FMLA leave in
February 2016. But this request was granted. See Appellant’s App’x at 88.

                                      11
subjective intent and the employee’s subjective views on the situation are

irrelevant.” Id. An employee who voluntarily resigns cannot prevail on a

theory of constructive discharge. Exum v. U.S. Olympic Comm., 389 F.3d

1130, 1135 (10th Cir. 2004). But a resignation is involuntary if the

employee lacked an opportunity to make a free choice. Narotzsky v.

Natrona Cty. Mem’l Hosp. Bd. of Tr., 610 F.3d 558, 566 (10th Cir. 2010).

      Even when viewed favorably to Ms. Dulany, the evidence would not

demonstrate compulsion for a reasonable person to quit. Ms. Dulany

complains that the warning letters led to poor working conditions, but

USPS issued the letters because Ms. Dulany had repeatedly violated its

policies. See MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1281–82

(10th Cir. 2005) (stating that the district court properly granted summary

judgment on the employee’s constructive-discharge claim when the

employer’s disciplinary actions had resulted directly from her repeated

misconduct).

      According to Ms. Dulany, her transfer constituted a “slap” and the

job was like “watching paint dry.” Appellant’s Opening Br. at 23. But her

view of the new job is irrelevant. See Strickland, 555 F.3d at 1228.

Objectively, Ms. Dulany’s reassignment constituted a lateral transfer

without a pay reduction. See Sanchez v. Denver Pub. Schs., 164 F.3d 527,

532, 534 (10th Cir. 1998) (stating that the district court properly granted

summary judgment on a constructive-discharge claim that involved a

                                     12
lateral transfer resulting in an unpleasant work environment); see also

Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216, 1222 (10th Cir.

2002) (stating that an alleged proposal for a transfer to a new position did

not create an inference of constructive discharge because the transfer

would not “involve a demotion or cut in pay”). Likewise, the change in

Ms. Dulany’s shifts and days off might have rendered her job difficult or

unpleasant. But the difficulty or unpleasantness did not render her

resignation involuntary. See Exum v. U.S. Olympic Comm., 389 F.3d 1130,

1135 (10th Cir. 2004) (“The question is not whether working conditions at

the facility were difficult or unpleasant,” but whether the employee was

allowed “to make a free choice regarding [the] employment relationship.”

(internal quotation marks omitted)).

                                    * * *

      Ms. Dulany’s unhappiness with her new position did not create a

reasonable inference of constructive discharge. Because Ms. Dulany has

not presented evidence of a constructive discharge, a fact-finder could not

reasonably find liability on a distinct claim of constructive discharge.




                                       13
III.   Disposition

       We affirm the district court’s grant of summary judgment to USPS.


                                      Entered for the Court



                                      Robert E. Bacharach
                                      Circuit Judge




                                    14
