                                    Tia GRAHAM, Plaintiff-Appellant,

                                                     v.

    STATE FARM MUTUAL INSURANCE COMPANY, an Illinois corporation; and Jean Estes,
Defendants-Appellees.

                                               No. 98-6871.

                                      United States Court of Appeals,

                                              Eleventh Circuit

                                               Oct. 28, 1999.

Appeal from the United States District Court for the Northern District of Alabama. (No. CV-97-N-2039-S),
Edwin L. Nelson, Judge.

Before BLACK and WILSON, Circuit Judges, and HILL, Senior Circuit Judge.

        PER CURIAM:

        The Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654 (FMLA), ensures that employees may

take up to twelve weeks of unpaid leave due to, among other things, serious medical conditions. 29 U.S.C.

§ 2612(a)(1)(D). As the district court reasoned, a plaintiff suffers no FMLA injury when she receives all the

leave she requests, and indeed is paid for most of it. Nor does she have a claim for retaliation based on a

supervisor's memorandum warning the employee against future non-FMLA absences.

        Accordingly, the district court's grant of summary judgment to the Defendants is affirmed based upon

the holding and the rationale contained in the district court's September 28, 1998, order, a copy of which is

attached as Appendix A hereto.1

        AFFIRMED.



                                              APPENDIX A

        TIA GRAHAM, Plaintiff,




   1
    On September 30, 1998, the district court amended its order to remand Graham's state law claims to state
court instead of dismissing them. The amendment does not affect the basis for our affirmance.
         vs.

         STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al., Defendants.

         CV 97-N-2039-S.

                                  UNITED STATES DISTRICT COURT

                                 NORTHERN DISTRICT OF ALABAMA

                                          SOUTHERN DIVISION

         Sept. 28, 1998.

         EDWIN L. NELSON, UNITED STATES DISTRICT JUDGE.

                                          Memorandum of Opinion

         This action was brought pursuant to the Family and Medical Leave Act (FMLA), 28 U.S.C. § 2601

et seq., and various Alabama state laws. With regard to the FMLA, the plaintiff alleges that State Farm

Mutual Automobile Insurance Co. (hereinafter "State Farm") and defendant Jean Estes, a senior occupational

health nurse at State Farm, violated her rights under the statute by discriminating against her, harassing her,

denying her FMLA protections, retaliating against her for taking leave protected under the FMLA, and

constructively discharging her, among other things. Graham also asserts claims on theories of negligence,

negligent hiring and training, fraud, and breach of contract, and seeks declaratory and injunctive relief,

reinstatement, back pay, and compensatory and punitive damages.

         The matter is presently before the court on a motion for summary judgment filed by State Farm on

July 30, 1998. The motion has been fully briefed and is ripe for decision. Upon due consideration,

defendant's motion for summary judgment will be granted.

I.       Statement of Facts.1


     1
       In developing the statement of facts in this opinion, the court considered those facts claimed to be
undisputed by the parties, the parties' respective responses to those claims, and the court's own examination
of the evidentiary record. These are the "facts" for summary judgment purposes only. They may not be the
actual facts. Cox v. Administrator U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir.1994),
cert. denied, USX Corp. v. Cox, 513 U.S. 1110, 115 S.Ct. 900, 130 L.Ed.2d 784 (1995).

                                                      2
        Plaintiff Tia Graham was hired by State Farm on July 6, 1993, to work as a communications operator

at State Farm's Alabama-Mississippi Regional office in Birmingham, Alabama. Depo. of T. Graham at 35.

As a communications operator, her job duties included answering the telephone and transferring calls, locking

and unlocking certain doors, and keying in car mileage on the computer. Id. at 35-38, 43-45. At some point

during Graham's employment, she was also given the responsibility of processing certain communications

invoices. Id. at 39, 40, 47. Her assigned working hours were 8:00 a.m. to 4:15 p.m. Id. at 46. While

employed by State Farm, Graham was an employee-at-will. Aff. of Brian Lancaster at ¶ 8.

        Angela Graham was hired at State Farm as a management trainee and received a year of management

training. Depo. of A. Graham at 13-14, 21. In November of 1994, she became plaintiff's immediate

supervisor. Id. at 25; Depo. of T. Graham at 62. Angela Graham reported to Assistant Manager Jan

Youngman and Administrative Services Manager Marvin Reeves. Depo. of A. Graham at 14.

        Angela Graham received Family and Medical Leave Act (FMLA) training at the Alabama Regional

office; the FMLA training session was for State Farm management and lasted less than one day. Depo. of

A. Graham at 46-49. At the training, Angela Graham was "taught our responsibility ... and about the FMLA,"

the main thrust of which "was I was not a medical doctor, and that it wasn't my responsibility to discuss

illnesses with employees, that if an employee wanted FMLA protection, it was their responsibility to seek

that protection and to work with medical on getting it." Id. at 46-48, 123-24. Angela Graham received no

other training or education on the FMLA or State Farm's FMLA policies. Id. at 123-24.

        State Farm's FMLA policy is that an employee must provide a request under the FMLA within two

days of returning to work in order for State Farm to designate FMLA protection; employees do not receive

FMLA protection from State Farm if they do not make the request within two days. Depo. of Jean Estes at

157-58. Pursuant to State Farm's policies, an employee must complete a written request form in order to

receive FMLA protection for an absence from State Farm. Id. at 158-59. State Farm does not consider the

completion of a Medical Certification Form by a doctor a request for FMLA protection. Id. at 163-64. If



                                                     3
State Farm receives a Medical Certification Form but no request form, State Farm does not consider the

absence protected by the FMLA. Id. at 163-65.

        At State Farm, only non-FMLA protected absences resulted in absentee memos. Depo. of A. Graham

at 55. Angela Graham does not know who at State Farm determines whether an employee's absence is FMLA

protected; she just looks at records from her department secretary that shows a list of absences that are

nonprotected. Id. at 57. Pursuant to State Farm's FMLA policy, the occupational health nurse at State Farm's

Alabama-Mississippi Regional office is charged with the responsibility of making determinations regarding

the FMLA. Depo. of Thomas Goya at 49, 58, 59, 71. The senior occupational health nurse at State Farm's

Alabama-Mississippi Regional office is Jean Estes, Depo. of Jean Estes at 53. Estes has been employed by

State Farm since 1961. Id. at 35-36. Estes received at least a day and a half of training regarding the FMLA

at State Farm's headquarters in Illinois. Id. at 69-70. Estes made the FMLA decisions; if she had any

question regarding an FMLA designation, she could go to her manual, to management or to corporate. Id.

at 162-63. Estes would not make an FMLA determination on information obtained verbally from an

employee: "To me, if anything is not in writing, it didn't happen." Id. at 77-78.

        State Farm established an FMLA committee consisting of employees from several different

departments of State Farm to look at State Farm policies and assist in drafting new policies to comply with

the FMLA. Depo. of Thomas Goya at 34-35. Thomas Goya, Kathy Leff, Sverre Olsen (State Farm in-house

corporate counsel), and others were members of the FMLA committee. Id. at 35. Drafts of the FMLA policy

were submitted to corporate counsel, Id. at 38, and an FMLA policy was adopted by State Farm. Id. at 37.

        The State Farm FMLA policy "did not permit absences covered under FMLA to result in negative

employment action against an employee when absences were considered covered or protected by the FMLA."

Id. at 49. Under State Farm's policy, if an absence qualified under the FMLA, it would be an FMLA

protected absence. Id. at 50.




                                                     4
          State Farm nurses were trained on how to administer the FMLA policy. Id. at 52. After the initial

training sessions, State Farm corporate did not conduct subsequent FMLA training sessions. Id. at 52-53.

          The primary responsibility for determining whether an employee's absence was one that was covered

by the FMLA was on the Medical Department, and those determinations were generally made by the nurse,

pursuant to State Farm's policy. Id. at 58-59. Supervisors had the responsibility to assist the Medical

Department (the nurse) in determining whether the employee met a one-year employment requirement and

the 1250 hour requirement, as well as whether the employee had exhausted his or her allotment of FMLA.

Id. at 56-57.

          During plaintiff's employment, she received an employee benefits binder which includes a summary

of State Farm's policy regarding the FMLA. Depo. of T. Graham at 185, Ex. 11. However, plaintiff does not

recall reading the FMLA policy or it being a part of her binder. Id. at 185-86. Plaintiff attended an FMLA

training course given to State Farm employees on August 1, 1995. Id. at 129-131. Plaintiff received written

materials concerning State Farm's FMLA policy at the training session. Id. at 183.

          On Tuesday, August 29, 1995, plaintiff and her daughter, Nicole Delgado, (who was then age 13)

were in a car accident. Id. at 13, 77. Plaintiff and her daughter were stopped at a red light in their car when

a truck hit them from behind. Id. at 77, 110. Immediately after the accident, plaintiff was examined at

Carraway Methodist Hospital, where she complained of soreness in the left shoulder and neck. Id. at 109;

Depo. of Marc Husid at 12. X-rays of plaintiff's spine were taken at the hospital and were normal. Depo. of

Marc Husid at 12, 13. Plaintiff was released from the hospital after two to three hours. Depo. of T. Graham

at 109.

          That evening, plaintiff called Jan Youngman to notify him that she had been in a car accident. Id.

at 113, 114. Plaintiff saw her family practitioner, Dr. John Holloway, on August 31, 1995. Id. at 108, 109.

On August 31, 1995, Dr. Holloway indicated that Graham could return to work on Tuesday, September 5,

1995. Monday, September 4, 1995 was Labor Day and plaintiff was not scheduled to work that day.



                                                      5
Youngman "told [plaintiff] not to worry about it, just stay off until Monday and just relax and just stay out

until Monday, there would be no problem." Id. at 114, 115. Prior to the auto accident, Plaintiff's State Farm

records do not show attendance or other employment problems on the part of Plaintiff. Depo. of Jean Estes,

Ex. 22. Angela Graham, as Plaintiff's supervisor, had no trouble with Plaintiff up to that point. Depo. of A.

Graham at 33.

        When plaintiff returned to work on September 5, 1995, she checked in with State Farm's senior

occupational health nurse, defendant Jean Estes. Depo. of T. Graham at 116. Plaintiff presented Estes with

a return to work form dated August 31, 1995 from Dr. Holloway which stated:

        This is to certify that Tia Graham has been under my care for the following: car accident and is able
        to return to work on September 5, 1995.

Depo. of T. Graham, Ex. 4. Plaintiff claims that as she checked in with Estes on September 5, 1995, she told

Estes that she was "probably going to have to go for physical rehab for this condition." Id. at 117. Plaintiff

also claims she asked Estes if there was "an Act or something that would cover [her] in case [she] had to go

on leave to go to therapy." Id. Estes represented to Plaintiff on that day that the time in which she could claim

FMLA protection for her absences on August 30 and 31 and September 1, 1995, and generally for the injuries

Plaintiff suffered as

                                           APPENDIX—Continued



a result of her automobile accident, were waived because Plaintiff had not claimed FMLA protection for the

injuries she sustained in the accident within two days. Id. at 212-15. Estes told Plaintiff that she could never

request FMLA protection relating to her injuries from the auto accident. Id. Estes told plaintiff that plaintiff's

supervisor, Angela Graham, "is very nice, that she would work with me any way if I had to take time off in

the day to go to therapy, she just said explain it to Angela ... and she would give [her] no problem with it."

Id. at 117, 118, 129.




                                                        6
        After the initial three days of absence after the accident, plaintiff was present at work until September

14, 1995. Id., Ex. 8. Plaintiff was also absent on September 20, 1995, and such absence was classified as a

paid vacation day. Id., Ex. 6. Plaintiff was absent for a few hours on September 25 and 27—time which was

classified as "Paid Doctor." Id. Plaintiff worked every scheduled day in October, only missing one hour and

forty-five minutes on October 23, 1995—time which was classified as "Paid Doctor." Id. Plaintiff worked

every scheduled day in November 1995. Id. Plaintiff missed only one full day in December 1995—December

4, 1995—which was classified as paid sickness family. Id. Plaintiff took a half day of paid vacation on

December 22, 1995. Id. Plaintiff was absent on January 3, 1996, and such absence was classified as paid sick

leave. Id. Plaintiff was absent two hours and fifteen minutes on January 10, 1996, and such absence was

classified as personal time. Id. Plaintiff was absent two and a half hours on January 18, 1996, and such

absence was classified as paid doctor. Id. Plaintiff was absent on January 24, 1996, and such absence was

classified as personal time. Id. Plaintiff was absent five and a half hours on February 14, 1996, and such

absence was classified as personal time. Id. Plaintiff was absent on March 18, 1996, and such absence was

classified as paid sick leave. Id. Plaintiff was absent April 2 and 3, 1996, and such absences were classified

as leave of absence. Id. Plaintiff was absent April 24, 1996, and such absence was classified as paid sick

leave. Id. Plaintiff was absent approximately four hours on May 8, 1996, and such absence was classified

as paid doctor. Id.

        State Farm received a May 13, 1996 letter from Dr. Fox, a chiropractor, indicating that he was

treating Plaintiff from May 13 until May 20, 1996 for injuries relating to the auto accident and was taking

her off work as he had "found that the ergonomics of her work station to be reducing the efficacy of her

therapy." Depo. of Jean Estes at 147, Ex. 17; Depo. of T. Graham, Ex. 6. Plaintiff was absent approximately

45 minutes on May 13, 1996, and such absence was classified as paid doctor. Depo. of T. Graham, Ex. 6.

Plaintiff was absent May 14-17, 1996, and such absences were classified as paid sick leave. Id.




                                                       7
        Plaintiff was absent a half day on June 5, 1996, and such absence was classified as paid vacation.

Id., Ex. 8. Plaintiff was absent on June 12, 1996, and such absence was classified as paid sick family. Id.

Plaintiff was absent a half day on June 24, 1996, and such absence was classified as paid vacation. Id.

Plaintiff was absent one hour and forty-five minutes on June 28, 1996, and such absence was classified as

personal time. Id. Plaintiff was absent on July 9, 1996, and such absence was classified as paid sick leave.

Id. Plaintiff was absent thirty minutes on July 10 and two hours and forty-five minutes on July 11, 1996; the

absence on July 11 was classified as paid doctor. Id. Plaintiff was absent two hours on July 16, 1996, and

such absence was classified as personal time. Id.

        Dr. Crompton, one of Plaintiff's physicians, provided a form to State Farm indicating that Plaintiff

was unable to work on July 17, 18 and 19 because of chronic neck pain relating to the auto accident and that

she was awaiting her appointment with him. Depo. of Jean Estes at 145-46, Ex. 15. Plaintiff was absent July

17-19, 1996, and such absences were classified as paid sick leave. Depo. of T. Graham, Ex. 8. X-rays of

plaintiff's neck were done on July 19, 1996, and were normal. Depo. of Marc Husid at 16.

        Plaintiff was absent three hours and fifteen minutes on July 23, 1996, and such absence was classified

as paid doctor. Depo. of T. Graham, Ex. 8.

        Plaintiff was examined by Dr. Marc Husid on July 23, 1996. Depo. of Marc Husid at 11. She

reported that she had experienced pain in the neck ever since the auto accident which increased in severity

and radiated into both sides of the head and the low back region once or twice a week, and that such pain was

accompanied by nausea, blurred vision, pain in the eyes, and occasional tingling in the arms. Id. at 14. She

also told Dr. Husid that the treatments by plaintiff's chiropractor "feel wonderful" but had no lasting effect.

Id. Dr. Husid found that "[s]he was moderately tender to palpation, or general pressure, over the neck and

upper back muscles," and that her range of motion was "a little bit limited in all directions." Id. at 22, 24.

Dr. Husid prescribed two medications for headaches, referred her to physical therapy for soft tissue therapy

on her neck and upper back, and asked her to return in three to four weeks. Id. at 35. State Farm received



                                                      8
a copy of the July 23 referral to physical therapy from Plaintiff and put it in her medical file. Depo. of Jean

Estes at 136, Ex. 14. When plaintiff requested work release two days later, Dr. Husid testified that he told

his assistant, "I don't see any reason why [the plaintiff] can't work. I know it's inconvenient, but have her try

to." Depo. of Marc Husid at 38.

        On July 24, 1996, plaintiff was present at work. Depo. of T. Graham, Ex. 8. On that day, Angela

Graham met with plaintiff to discuss plaintiff's absences and informed her that the following memo was being

placed in her personnel file:

        Memo

        To: Tia Graham

        From: Angela Graham, Communications Supervisor

        Date: July 24, 1996

        Re: Excessive Absences

        I am submitting this memo to your Personnel Shield to stress our concern about your excessive
        non-FMLA protected absence record. You have been absent from work 172 hours since June 1,
        1995. These non-FMLA protected hours include:

                 104:30 hours PSL

                 37:25 hours PSF

                 15:30 hours LA

                 15:15 hours PD

        You are aware of our concern regarding your non-FMLA protected absences as I have counseled with
        you several times regarding this subject. Communications is staffed at the appropriated level.
        Absences from your primary job of the switchboard and secondary job of invoice processing places
        unnecessary burdens on the unit's work flow and on fellow employees. You are aware of the
        importance of taking responsibility for your job and the priority that should be placed on attendance.

        Further, non-FMLA protected absences could directly affect all future permission policy absences
        and result in disciplinary action. As your supervisor, I am available at all times to help you resolve
        this concern. We will sit down together and follow up on the contents of this memo in thirty days,
        August 24, 1996.

        Signature:


                                                       9
        Angela Graham

        Supervisor

        Tia Graham

        Jan Youngman

        Asst. Manager

        cc: Human Resources

Id. at 141-43, Ex. 7; Depo. of A. Graham at 63.

        After the meeting with Angela Graham, plaintiff went to see Jean Estes and showed her a copy of

the memo. Depo. of T. Graham at 145. Estes told plaintiff it was too late to get FMLA protection for her

absences and that she should try to get her future appointments in the late afternoon. Id. at 146. According

to the plaintiff, Estes also told her not to get Angela Graham angry with her because, "once a supervisor gets

on your back or gets upset at State Farm, they will stay on your back." Id. at 145.

        After July 24, 1996, plaintiff never again reported to work at State Farm. Id. at 159, Ex. 8. On July

25, 1996, plaintiff called Dr. Husid's office and asked for a work release for one to two weeks. Depo. of Marc

Husid at 36, 37, Ex. 2. At that time, Dr. Husid denied plaintiff's request to take her off work because he did

not "see any reason why she can't work." Id. at 38.

        On August 2, 1996, plaintiff sent a letter to Marvin Reeves, with a copy to Angela Graham and Jean

Estes, informing State Farm of her need for continuing medical treatment and requesting a leave of absence

through August 20, 1996. Depo. of T. Graham at 9, Ex. 9. Plaintiff admits that no one at State Farm ever told

plaintiff she could not have time off. Id. at 173. Estes sent a blank Medical Certification Form to plaintiff

for her to have her doctor complete on August 5, 1996. Depo. of Estes at 121-122, Ex. 5. She also sent a form

for plaintiff to sign which authorized plaintiff's doctors to release medical information to State Farm, which

plaintiff signed on August 8. Id. at 125-126, Ex. 6.




                                                       10
        On August 8, 1996, although she apparently did not have a scheduled appointment, plaintiff again

saw Dr. Husid. Depo. of Marc Husid at 38-39. According to Dr. Husid, plaintiff "came in in tears looking

quite distraught telling me that she attempted to return to work the day after I initially saw her but got sick

and had to leave and has not been able to return." Depo. of Marc Husid at 38-39. Plaintiff reported to Dr.

Husid that "She [was] concerned that she may lose her job. She [was] tired, she [was] stressed over her three

children, marital difficulties, and making her various doctor appointments. She complained of burning pain

up and down her back." Depo. of Marc Husid at 40.

        Dr. Husid completed and signed a three page Medical Certification Form for State Farm on plaintiff

on August 8, 1996. Id. at 51-52, Pl.Ex. 2. The Medical Certification Form indicates a "Disability Start Date"

taking plaintiff off work from July 23, 1996 and indicating he would re-evaluate her on August 15, 1996.

Id. at 52-53, Pl.Ex. 2. Dr. Husid agrees with everything on the Medical Certification Form, as completed.

Id. at 52, Pl.Ex. 2. The Medical Certification Form indicated Dr. Husid's opinion that plaintiff had a serious

health condition under the FMLA and that plaintiff was unable to work from July 23, 1996 through August

15, 1996, at which time she would be "re-evaluated." Id. at 52, Pl.Ex. 2, Depo. of Jean Estes, Ex. 7. The

Medical Certification Form indicated that plaintiff's serious health condition under the FMLA was "absence

plus treatment." Depo. of Jean Estes at 142-44, Ex. 7. The Medical Certification Form also indicated Dr.

Husid's opinion that plaintiff's treatments needed to be scheduled during normal work hours. Depo. of Marc

Husid at 52, Pl.Ex. 2; Depo. of Jean Estes, Ex. 7. State Farm received the Medical Certification Form in

response to Estes' request to plaintiff of August 5 on or before August 20, 1996. Depo. of Jean Estes at 126-

127, Ex. 7.

        Dr. Husid again saw plaintiff on Monday, August 19, 1996, at which time he completed a medical

release to State Farm indicating that plaintiff should return to work the following Monday, August 26, 1996.

Depo. of Marc Husid at 47-48; Depo. of Jean Estes, Ex. 13.




                                                      11
        State Farm determined plaintiff to be AWOL (absent without leave) for the days of August 16 and

19, 1996, on August 20, 1996. Depo. of Jean Estes, Ex. 9 & 19.

        At some point after August 20, Estes spoke with Dr. Husid and was told that plaintiff was "in a lot

of pain" and that Dr. Husid was keeping plaintiff off work until August 26, 1996. Id. at 135-136, Ex. 8. Estes

was aware that the medical documents and excuses in plaintiff's file indicated a pattern of medical problems

arising from the auto accident, and that plaintiff was having ongoing problems, pain, chronic neck and back

pain and suffering from her injuries in the automobile accident. Id. at 147-49, Ex. 7, 14, 15, 16 & 17. Such

documents would indicate to Estes that plaintiff had a continuing need for treatment for her injuries from the

auto accident. Id. Such documents would indicate to Estes that plaintiff had a serious health condition under

the FMLA in August 1996. Id.

        When plaintiff failed to show up at work on the morning of August 26, 1996, Angela Graham

prepared a memorandum to Jan Youngman which recounted the plaintiff's absence from work since July 24,

1996, including the time she was deemed AWOL on August 16 and 19, 1996. Angela Graham recommended

that due to the "repeated incident of AWOL," the plaintiff should be terminated immediately. Id. at 170-71,

Ex. 19; Depo. of A. Graham at 98, 119-21. The August 26 memo does not state that plaintiff's absences after

July 24, 1996 were non-FMLA protected. Depo. of Jean Estes, Ex. 19. Angela Graham's supervisors signed

the August 26 memo and fully agreed with it. Depo. of A. Graham at 124-125.

        Plaintiff submitted a letter of resignation to State Farm effective August 26, 1996. Depo. of T.

Graham at 92-98, 106, Ex. 2. In her letter of resignation, plaintiff stated that:

        I feel at this point after going through all the therapy that I have been through the ergonomics' of my
        job, in the past have aggravated my conditions, causing me to have severe headaches, also the anxiety
        and stress of everything concerning my condition. I have tried to sit down at a desk since school
        started to help my children with their homework and I am having difficulty doing that. I want to
        thank all my co-workers and State Farm. I apologize to all my fellow members as well as my friends
        for the burdens I have placed upon them.

Depo. of T. Graham, Ex. 2.

II.     Summary Judgment Standard.


                                                      12
        Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law." Fed.R.Civ.P. 56(c). The party asking for summary judgment "always bears the initial responsibility

of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it

believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317,

323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). The movants can meet this burden

by presenting evidence showing there is no dispute of material fact, or by showing that the nonmoving party

has failed to present evidence in support of some element of its case on which it bears the ultimate burden

of proof. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. There is no requirement, however, "that the moving

party support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323,

106 S.Ct. 2548.

        Once the moving party has met his burden, Rule 56(e) "requires the nonmoving party to go beyond

the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions

of file,' designate 'specific facts showing that there is a genuine issue for trial.' " Id. at 324, 106 S.Ct. 2548

(quoting Fed.R.Civ.P. 56(e)). The nonmoving party need not present evidence in a form necessary for

admission at trial; however, he may not merely rest on his pleadings. Celotex, 477 U.S. at 324, 106 S.Ct.

2548. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence

of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id.

at 322, 106 S.Ct. 2548.

        After the plaintiff has properly responded to a proper motion for summary judgment, the court must

grant the motion if there is no genuine issue of material fact, and the moving party is entitled to judgment as



                                                       13
a matter of law. Fed.R.Civ.P. 56(c). The substantive law will identify which facts are material and which

are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party." Id. at 248, 106 S.Ct. 2505. "[T]he judge's function is not himself to weigh the evidence and determine

the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. 2505.

His guide is the same standard necessary to direct a verdict: "whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a

matter of law." Id. at 251-52, 106 S.Ct. 2505; see also Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S.

731, 745 n. 11, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983). However, the nonmoving party "must do more than

show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the evidence is merely

colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249,

106 S.Ct. 2505 (citations omitted);       accord Spence v. Zimmerman, 873 F.2d 256 (11th Cir.1989).

Furthermore, the court must "view the evidence presented through the prism of the substantive evidentiary

burden," so there must be sufficient evidence on which the jury could reasonably find for the plaintiff.

Anderson, 477 U.S. at 254, 106 S.Ct. 2505; Cottle v. Storer Communication, Inc., 849 F.2d 570, 575 (11th

Cir.1988). Nevertheless, credibility determinations, the weighing of evidence, and the drawing of inferences

from the facts are the function of the jury, and therefore the evidence of the non-movants is to be believed

and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The

nonmovant need not be given the benefit of every inference but only of every reasonable inference. Brown

v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th Cir.1988).

III.    Discussion.

        Because this court's jurisdiction over plaintiff's state law claims depends on the viability of her claims

under the FMLA, the court will address the claims over which it has original jurisdiction before proceeding



                                                       14
to consider, if necessary, the state law claims. If no federal claim survives summary judgment, the court sees

no reason why the other claims should not be dismissed or remanded pursuant to 28 U.S.C. § 1367(c)(3).

        In deciding whether a plaintiff has stated a claim of FMLA discrimination based on circumstantial

evidence, courts have borrowed the analytical framework utilized in cases brought under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1325 (10th

Cir.1997); Dollar v. Shoney's, Inc., 981 F.Supp. 1417, 1419 (N.D.Ala.1997); Kaylor v. Fannin Regional

Hospital, Inc., 946 F.Supp. 988, 999 (N.D.Ga.1996); Peters v. Community Action Committee, Inc., 977

F.Supp. 1428 (M.D.Ala.1997). Applying the test from McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct.

1817, 36 L.Ed.2d 668 (1973), to the FMLA context, the plaintiff may establish a prima facie case by showing

that: (1) she availed herself of a protected right under the FMLA; (2) she was adversely affected by an

employment decision; (3) there is a causal connection between the protected activity and the adverse

employment action; and (4) she was qualified for her position at the time of the adverse employment action.

See Kaylor, 946 F.Supp. at 1001 (citing Stanfield v. Answering Service, Inc., 867 F.2d 1290, 1293 (11th

Cir.1989)).

        Plaintiff's second amended complaint, filed March 30, 1998, contains a lengthy list of FMLA

violations that State Farm is alleged to have committed. Among other things, plaintiff contends that State

Farm violated her rights under the FMLA and its implementing regulations by: (1) failing to inform her of

her rights under the FMLA; (2) interfering with her rights under the FMLA; (3) misrepresenting the FMLA

to her; (4) interfering or attempting to interfere with her medical treatment; (5) failing to determine that she

was entitled to FMLA leave; (6) plotting to terminate her employment at State Farm by making conditions

intolerable to the extent that plaintiff would resign; (7) constructively terminating plaintiff's employment;

(8) intimidating, harassing, and discriminating against her; and (9) retaliating against her for taking leave.

State Farm denies having violated the FMLA in any respect.




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        Although many of plaintiff's allegations are complex, this court need not address the alleged technical

violations of the FMLA in detail because plaintiff has simply failed to demonstrate that she suffered any

"adverse employment action" for purposes of stating a prima facie case under the FMLA. In support of her

claim that she was subject to an adverse employment action, plaintiff offers three possibilities: (1) the July

24, 1996 memorandum regarding her absences that was placed into her employee file; (2) the classification

of her absences of August 16 and 19, 1996, as time when she was AWOL; and (3) her constructive discharge.

        The Eleventh Circuit recently joined the First, Ninth, and Tenth Circuits in holding that Title VII's

protection against retaliatory discharge extends to adverse actions which fall short of ultimate employment

decisions. See Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir.1998). Thus, actions such as

undeserved negative job evaluations, demotions, disadvantageous transfers, or toleration of harassment are

actionable under the retaliation clause. See id. at 1456 (citing Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th

Cir.1987); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984-86 (10th Cir.1996)). Of course, "some threshold

level of substantiality ... must be met for unlawful discrimination to be cognizable under the anti-retaliation

clause." Id. The July 24, 1996 memorandum and the AWOL classification of the two days in August simply

do not meet the "threshold level of substantiality" required by the Eleventh Circuit in Wideman. Neither

action constitutes an unwarranted negative job evaluation or disadvantageous transfer of responsibilities. The

July memorandum merely expressed concern with plaintiff's absences and warned of possible ramifications;

and State Farm had ample reason to classify plaintiff's August absences as being "without leave" since

plaintiff had presented an excuse note that only extended through August 15, 1996 and State Farm didn't hear

from plaintiff until August 20, 1998. In addition, plaintiff did not suffer any repercussions from either of

these actions. In such circumstances, courts have generally found no adverse employment action. See Green

v. Runyon, 131 F.3d 151 (10th Cir.1997); Sweeney v. West, 149 F.3d 550, 556 (7th Cir. June 29, 1998);

Nelson v. University of Maine System, 923 F.Supp. 275 (D.Maine 1996); Rivers v. Baltimore Dep't of

Recreation Parks, 1990 WL 112429, *10 (D.Md. Jan.9, 1990).



                                                      16
        Plaintiff's claim that she was constructively discharged is similarly untenable. The Eleventh Circuit

has instructed that in order to prove constructive discharge, an employee "must demonstrate that [her]

working conditions were so intolerable that a reasonable person in [her] position would be compelled to

resign." Morgan v. Ford, 6 F.3d 750, 755 (11th Cir.1993). Plaintiff is patently unable to meet this standard.

While she alleges that the July 24, 1996, memorandum led her to believe that she was going to be terminated

if she missed any more days of work, a reading of that memorandum illustrates clearly that the belief was not

reasonable2—plaintiff's subjective feelings about State Farm's actions, whatever they may have been, are not

determinative. Doe v. Dekalb County School Dist., 145 F.3d 1441, 1450 (11th Cir.1998). It is undisputed

that plaintiff did not know of Angela Graham's recommendation that she be terminated when she resigned.

Furthermore, plaintiff's letter of resignation, in which she expressly thanks State Farm, does not by its terms

lend support to a theory that plaintiff was forced to resign due to "intolerable" working conditions. See Depo.

of T. Graham, Ex. 2.

        Besides failing to show that she was subject to an adverse employment action, plaintiff has not

demonstrated that she suffered any damages as a result of State Farm's actions. Even if the defendants have

committed certain technical infractions under the FMLA, plaintiff may not recover in the absence of damages.

See Cianci v. Pettibone Corp., 152 F.3d 723, 1998 WL 498544 (7th Cir. Aug.19, 1998); Beal v. Rubbermaid

Commercial Prod., Inc., 972 F.Supp. 1216 (S.D.Iowa 1997), aff'd, 149 F.3d 1186 (8th Cir.1998); Szabo v.

Trustees of Boston University, 1998 WL 151272 (D.Mass. Mar.18, 1998); Dodgens v. Kent Mfg. Co., 955

F.Supp. 560, 564-65 (D.S.C.1997); Fisher v. State Farm Mutual Automobile Insurance Co., 999 F.Supp. 866,

871 (E.D.Tex.1998). Plaintiff was never denied leave time by State Farm. In fact, she was provided with

more than 170 hours of leave in the 12 months between her automobile accident and her resignation, most

of which was paid. As this court has noted, the FMLA does not allow recovery for mental distress or the loss


   2
    The memo states in relevant part: "Further non-FMLA protected absences could directly affect all future
permission policy absences and result in disciplinary action. As your supervisor, I am available at all times
to help you resolve this concern." Depo. of T. Graham at 141-43, Ex. 7.

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of job security. McAnnally v. Wyn South Molded Prods., 912 F.Supp. 512 (N.D.Ala.1996). And, as discussed

earlier, plaintiff cannot make a claim of actual or constructive discharge.

IV.     Conclusion

        For the foregoing reasons, defendant's motion for summary judgment will be granted and the

remaining state law claims will be dismissed without prejudice.

        A separate order, consistent with this opinion, will be entered.




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