                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-1405
                        ___________________________

                                    Allen Bradley

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

    Little Rock Wastewater Utility; Dale Gilbert, in his individual and official
            capacity as a Supervisor of Little Rock Wastewater Utility

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: January 16, 2013
                             Filed: February 14, 2013
                                  [Unpublished]
                                  ____________

Before RILEY, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.
                             ____________

PER CURIAM.

      Allen Bradley claims that the Little Rock Wastewater Utility (“LRW”), his
former employer, and Dale Gilbert, his former supervisor, interfered with his rights
under the Family and Medical Leave Act (“FMLA”). He also claims that LRW
terminated his employment in violation of the Americans with Disabilities Act
(“ADA”). The district court1 entered summary judgment in favor of Gilbert and
LRW, and Bradley appeals.

       Bradley was employed by LRW, the municipally owned sewer utility for Little
Rock, Arkansas, from 1994 until July 2009. As an LRW employee, Bradley had a
history of poor performance, consistently ranking below his peers in annual
evaluations. LRW rates its employees in ten different performance categories each
year. Out of 40 possible points, Bradley earned scores of 23 and 25 in 2007 and
2008, respectively. Comparatively, the three other technicians on Bradley’s team
earned scores between 32 and 36.

       Between April 14 and May 25, 2009, Bradley arrived late for work three times,
and he also missed two full days. On May 26, he again was absent from work and did
not contact LRW with an explanation, in violation of LRW’s call-in policy. That day,
Gilbert issued Bradley a written warning and placed him on probation for six months
for failing to comply with LRW’s attendance policies.

       Gilbert issued Bradley a second written warning on July 17, 2009, which
identified several other performance-related deficiencies. In this warning, Gilbert
cited Bradley for failing to complete assigned work in a timely manner, failing to
complete paperwork as instructed, failing to perform department work in an
organized manner, and inability to perform the tasks required by his position. Gilbert
also cited Bradley for failing to wear safety shoes in hazardous areas as required by
LRW’s safety policies.

      On July 22, 2009, LRW terminated Bradley’s employment for insubordination.
Bradley had sustained an injury at home in November 2008, and he had been on light


      1
       The Honorable D. P. Marshall, Jr., United States District Judge for the Eastern
District of Arkansas.

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duty since February 2009. When Gilbert observed Bradley performing several
restricted tasks, he asked Bradley to produce a doctor’s note releasing him to full duty
by July 21. Bradley failed to produce a note, and Gilbert arranged a meeting the next
day to inform Bradley that he was being placed on administrative leave. Before the
meeting ended, however, Bradley became belligerent and, despite instructions to the
contrary, refused to leave the facility. Gilbert then told Bradley that he would call the
police if Bradley did not leave immediately. When Gilbert did call the police,
Bradley finally left. LRW terminated Bradley’s employment the next day.

      Bradley filed suit against LRW and Gilbert, claiming that LRW interfered with
his FMLA rights and failed to accommodate his diabetes in violation of Title II of the
ADA.2 The district court granted LRW’s motion for summary judgment, finding that
(1) Bradley’s FMLA claim failed because he never gave notice of his intent to take
FMLA leave, and (2) Bradley’s ADA claim failed because he was not a “qualified
individual.”

       “We review the district court’s grant of summary judgment de novo.” Bacon
v. Hennepin Cnty. Med. Ctr., 550 F.3d 711, 714 (8th Cir. 2008). “Viewing the
evidence and drawing all inferences in favor of the non-moving party, summary
judgment is appropriate if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.” Id. “This court may affirm the
summary judgment decision on any basis supported by the record.” Heacker v.
Safeco Ins. Co. of Am., 676 F.3d 724, 727 (8th Cir. 2012).

      Bradley first appeals the adverse grant of summary judgment on his FMLA
claim. The FMLA allows an employee to take twelve weeks of leave during any


      2
       Bradley also brought claims under the Age Discrimination in Employment Act
of 1967 and 42 U.S.C. § 1983. The district court also entered summary judgment in
favor of LRW with respect to these claims, and Bradley does not appeal this decision.

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twelve-month period “[b]ecause of a serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 29
U.S.C. § 2612(a)(1)(D). “The FMLA recognizes two types of claims by employees:
interference and retaliation.” Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir.
2012); 29 U.S.C. § 2615(a)(1) (“It shall be unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise, any right provided
[by the FMLA].”). In his brief and also at oral argument, Bradley insisted that his
FMLA claim on appeal is based solely on an interference theory.

       To state a claim for interference, the employee must show that he gave notice
of his need for FMLA leave. Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008).
After the employee establishes that he gave proper notice, he bears the initial burden
of proof to show that he was entitled to a denied FMLA benefit. Ballato 676 F.3d at
772. If the plaintiff makes a showing of interference, the burden then shifts to the
employer to establish that there was a reason for terminating the employment that was
unrelated to the employee exercising his FMLA rights. Throneberry v. McGehee
Desha Cnty. Hosp., 403 F.3d 972, 978-79 (8th Cir. 2005). “As long as an employer
can show a lawful reason, i.e., a reason unrelated to an employee’s exercise of FMLA
rights, for not restoring an employee on FMLA leave to her position, the employer
will be justified to interfere with an employee’s FMLA leave rights.” Id. at 979.

       Although he does not claim to have been seeking to exercise any FMLA rights
at the time, Bradley argues that LRW interfered with his FMLA rights because it
considered his diabetes-related absences when it terminated his employment.
Regardless of whether Bradley meets his initial burden of proof, however, LRW
offers a legitimate reason for termination that is unrelated to Bradley exercising any
FMLA rights. The record reflects that on May 26, 2009, LRW placed Bradley on
probation for failing to follow the proper notice procedures for an illness-related
absence. On July 21, 2009, Gilbert decided to place Bradley on administrative leave
for failing to observe his light duty restrictions without producing a doctor’s note

                                         -4-
releasing him from light duty. Finally, Gilbert emailed his supervisors to recommend
that Bradley’s employment be terminated based on Bradley’s conduct at the July 22
meeting. Gilbert wrote the July 22 email immediately after Bradley became
belligerent and refused to leave the premises when Gilbert told him that he was to be
placed on administrative leave.

       The record supports LRW’s assertion that it terminated Bradley’s employment
for insubordination, which is a legitimate reason unrelated to Bradley’s exercise of
any FMLA rights. Cf. Putman v. Unity Health Sys., 348 F.3d 732, 736 (8th Cir. 2003)
(noting that “[o]ur cases have repeatedly held that insubordination and violation of
company policy are legitimate reasons for termination” in the employment
discrimination context). Bradley presents no evidence to create a material question
of fact on this issue. There is nothing in the record to suggest that LRW considered
Bradley’s absences when it terminated his employment on July 22, much less that it
even believed the absences were FMLA eligible. His FMLA interference claim
therefore fails. See Throneberry, 403 F.3d at 979 (8th Cir. 2005) (“[A] reason for
dismissal insufficiently related to FMLA leave will not support recovery under an
interference theory.” (quoting Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d
955, 961 (10th Cir. 2002)).

     Bradley also appeals the adverse grant of summary judgment on his failure-to-
accommodate3 claim under Title II of the ADA.4 Title II provides:

      3
        At oral argument, Bradley confirmed that his ADA claim is based solely on
LRW’s failure to accommodate his diabetes by excepting him from its mandatory
safety shoe policy.
      4
        Plaintiffs typically bring employment discrimination cases under Title I of the
ADA, which addresses employment. Bradley claimed violations of both Title I and
Title II, but the district court determined that his Title I claim failed because Bradley
did not comply with the EEOC exhaustion requirements. See 42 U.S.C. § 12117(a).
Bradley does not appeal the denial of his Title I claim.

                                          -5-
      [n]o qualified individual with a disability shall, by reason of such
      disability, be excluded from participation in or be denied the benefits of
      the services, programs, or activities of a public entity, or be subjected to
      discrimination by any such entity.

42 U.S.C. § 12132. This court has not decided whether Title II applies to
employment discrimination cases filed against public employers, and the circuits that
have addressed this question are split. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531
U.S. 356, 360 n.1 (2001) (noting, without resolving, the circuit split); Zimmerman v.
Or. Dep’t of Justice, 170 F.3d 1169, 1178 (9th Cir. 1999) (holding that Title II does
not state a cause of action for employment discrimination); Bledsoe v. Palm Beach
Cnty. Soil & Water Conservation Dist., 133 F.3d 816, 825 (11th Cir. 1998) (holding
that Title II does state a cause of action for employment discrimination). We need not
decide the issue to resolve this case, however, because even assuming that Bradley’s
failure-to-accommodate claim is cognizable under Title II, the claim fails.

       Bradley alleges that LRW failed to accommodate his diabetes because it
considered his failure to wear safety shoes when it decided to terminate his
employment. Bradley argues that his diabetes caused his feet to swell when he wore
the safety shoes and that LRW could have reasonably accommodated his disability
by periodically allowing him to wear different shoes. Bradley presents no evidence,
however, that he ever requested such a workplace accommodation or that he even told
anyone at LRW about his problem with the safety shoes. As LRW had no notice that
Bradley sought accommodation, it had no duty to accommodate him, regardless of
whether his proposed accommodation is reasonable. See Ballard v. Rubin, 284 F.3d
957, 962 (8th Cir. 2002) (holding that an employee must provide his employer with
“enough information that, under the circumstances, [the employer] can be fairly said
to know that [the employee] sought accommodation for his disability”).




                                          -6-
      Accordingly, we affirm the district court’s grant of summary judgment to LRW
on both the FMLA and the ADA claims.
                     ______________________________




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