UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FORREST SAWYER,
Plaintiff-Appellant,

v.
                                                                      No. 97-2033
BALL CORPORATION, an Indiana
Corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Robert G. Doumar, Senior District Judge.
(CA-96-168-4)

Argued: May 6, 1998

Decided: June 4, 1998

Before ERVIN, WILKINS, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jonathan William David, DAVID & KAMP, L.L.C.,
Newport News, Virginia, for Appellant. Rodney Allen Satterwhite,
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond,
Virginia, for Appellee. ON BRIEF: E. D. David, DAVID & KAMP,
L.L.C., Newport News, Virginia, for Appellant. James P. McElligott,
Jr., MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond,
Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Forrest Sawyer filed suit claiming retaliatory discharge in violation
of the Family Medical Leave Act (FMLA), 29 U.S.C.A.§§ 2601 -
2619 (West Supp. 1998), discharge in violation of the FMLA, and
breach of settlement agreement, based upon his termination from his
employment at Ball Corporation (Ball) for a violation of disciplinary
probation. Sawyer appeals from the district court's order granting
summary judgment in favor of Ball on all claims and denying Saw-
yer's motion to amend his complaint. We affirm.

I.

Summary judgment is appropriate when a party who will bear the
burden of proof at trial fails to make a showing sufficient to establish
an element essential to the case. See Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). When reviewing a district court's determination
that summary judgment is appropriate, we apply a de novo standard
of review, see Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d
1162, 1167 (4th Cir. 1988), and view the facts in the light most favor-
able to the non-moving party, see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). The denial of leave to amend a complaint
is reviewed for abuse of discretion. See American Hot Rod Assn., Inc.
v. Carrier, 500 F.2d 1269, 1275 (4th Cir. 1974).

Viewed in the light most favorable to Sawyer, the facts are as fol-
lows. Sawyer began his employment with Ball in its Williamsburg
can manufacturing facility in 1977. He was promoted over the years
on several occasions and eventually reached the position of Chief
Maintainer. Although his work evaluations generally praised his per-
formance, they consistently noted that attendance was a problem for
Sawyer and that he needed to improve his reliability by improving his
attendance.

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In 1993-1994 Sawyer had multiple attendance incidents. Finally, in
April 1994, Ball put Sawyer on three-day suspension without pay as
a result of unexcused absences, in accordance with its disciplinary
procedure. Upon his return from his suspension on May 2, 1995, Ball
notified Sawyer that he would be on a six-month probation and that
any further non-compensable leave taken during the next six months
would result in termination.

In early September 1995, Sawyer was cited for boating under the
influence (BUI) and told his supervisor that he needed a work day off
to attend court because he could not get the appearance rescheduled
during his regular day off. Sawyer's immediate supervisor gave per-
mission for an excused absence. After management discovered that
Sawyer had to appear for BUI charges, Ball determined that generally
such an absence would not have been excused. Thus, Ball held a
meeting in September, later documented by a letter, during which
management explained to Sawyer that they were extending his proba-
tionary period. The new probation would last six months from the
meeting date in September and would require perfect attendance,
thereby restricting his ability to take non-compensable leave. Sawyer
would be entitled to paid leave but no unpaid leave during the six
month period. Unfortunately, in October 1995, Sawyer was injured
when he jumped off the deck at his home. He submitted a doctor's
note excusing him from work from October 23 through October 25,
three days. When Sawyer failed to report to work on October 26, Ball
terminated him under the terms of the disciplinary probation for poor
attendance.

After further medical evaluation, however, it was determined that
Sawyer had a serious medical condition cognizable under the FMLA.
Sawyer's lawyer brought this to Ball's attention and arranged for
Sawyer's reinstatement after his FMLA leave was completed. A letter
sent by Sawyer's attorney, which purported to confirm an agreement
with Ball, stated that Sawyer would be reinstated"as if he had never
been terminated, with the bridging of all rights and entitlements with-
out penalty whatsoever." (J.A. at 11.) Sawyer considers this letter to
be a settlement agreement.

Upon Sawyer's return to work in January 1996, he was given a
memo stating that his disciplinary probation would terminate June 4,

                    3
1996. At the time the letter was presented, Sawyer questioned the
ending date of the probationary period because he thought that his
FMLA leave time should have been included as probation time
already served. Ball recalculated the date and figured that Sawyer's
probation should end on June 5, 1996. Sawyer did not revisit the issue
of the proper probationary period with Ball.

On May 19, 1996, Sawyer overslept and did not report to work on
time. His boss called him and awakened him so that he could report
to work. As this was an unexcused attendance incident within the pro-
bationary period, Sawyer was terminated.

II.

Sawyer filed his initial complaint in the district court in December
1996. In his complaint he alleged retaliatory discharge in violation of
the FMLA, discharge in violation of the FMLA, and breach of settle-
ment agreement. On June 12, 1997, Sawyer moved to amend his com-
plaint to add additional state law claims for: (1) breach of contract,
(2) retaliatory discharge in contravention of public policy, and (3)
fraud. On June 13, 1997, Ball moved for summary judgment on the
claims raised in the initial complaint. On June 24, 1997, Sawyer
moved for summary judgment on the claims in the initial complaint.
On June 26, 1997, Ball filed its opposition to Sawyer's motion to
amend his complaint.

The district court heard argument on all pending motions on July
1, 1997. The court denied Sawyer's motions for summary judgment
and to amend the complaint, and granted Ball's motion for summary
judgment. The district court denied Sawyer's motion to amend the
complaint because Sawyer should have known of the new claims at
the time the complaint was filed. Additionally, the district court ruled
that the defendant would be prejudiced by the late amendment. The
district court rejected the FMLA claims because Sawyer was put back
into exactly the same employment position he had been in before he
took leave and therefore was not penalized in any way for taking
FMLA leave. Also, insufficient evidence had been forecasted on the
retaliation claim to raise a genuine issue of material fact that his
FMLA leave was a causal factor in his termination. Finally, the dis-
trict court concluded that no breach of the settlement agreement had

                    4
occurred because Sawyer had not suffered any penalty upon his return
to work.

Sawyer appeals, arguing that the district court erred when it ruled
in Ball's favor because: (1) Ball breached its settlement agreement
when it reinstated Sawyer but did not count the days he spent on
FMLA leave against his disciplinary suspension; (2) Ball retaliated
against Sawyer by changing the terms of his probation after he
returned from FMLA leave; (3) Ball violated the FMLA when it
penalized him for taking leave by not subtracting leave days from his
probationary period; (4) Ball violated its own attendance policy when
it terminated Sawyer; and (5) the district court abused its discretion
when it denied Sawyer's motion to amend his complaint.

III.

We have reviewed the record, briefs, and pertinent case law in this
matter, and we have had the benefit of oral argument. Our careful
review persuades us that the rulings of the district court were correct.
Accordingly, we affirm on the reasoning set forth in the district
court's opinion. See Sawyer v. Ball Corp., C.A. No. 4:96cv168 (E.D.
Va. July 2, 1997).

AFFIRMED

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