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                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-14922
                           Non-Argument Calendar
                         ________________________

                      D.C. Docket No. 3:12-cv-02544-IPJ



DAVID MAC SPARKS,

                                                              Plaintiff-Appellant,

                                     versus

SUNSHINE MILLS, INC.,

                                                             Defendant-Appellee.

                         ________________________

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

                              (September 12, 2014)

Before WILLIAM PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

      David Mac Sparks appeals summary judgment granted to Sunshine Mills,

Inc. (“Sunshine”) on his retaliatory-discharge claim, brought under Alabama Code
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§ 25-5-11.1, and his interference and retaliation claims under the Family Medical

Leave Act (“FMLA”), 29 U.S.C. §§ 2609-19. We affirm.

                                I. BACKGROUND

      Sunshine, a pet-food manufacturing company, owns and operates a plant in

Red Bay, Alabama. Sparks began working at the Red Bay plant in June 2006. He

worked as an Expander Operator there until Sunshine terminated him on August 5,

2010. As an Expander Operator, Sparks was responsible for operating a machine

that made pet food. His duties included adding ingredients to a mixer and sending

the ingredients to the expander machine. While operating the machine, Sparks

monitored the feed continuously, adjusting moisture levels and other variables as

necessary. During Sparks’s employment, Michael Myrick was his immediate

supervisor, Charles “June” Holland was the Plant Superintendent, and Mark Suiter

was the Plant Manager.

      Sunshine does not have a written disciplinary policy. Instead, it generally

follows a “three write-up rule.” R. at 208. Under that rule, an employee typically

receives three critical write-ups before being terminated. Holland and Suiter

testified, however, that employees are not fired automatically after receiving three

write-ups, nor are employees guaranteed future employment by virtue of not

having violated the three write-up policy. The Plant Manager, Suiter, had

discretion to terminate employees based on the nature and severity of their


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infractions. During depositions, Sparks testified he understood that any actions

jeopardizing product quality could lead to disciplinary action, including

termination.

      On September 17, 2009, Holland issued Sparks a write-up for running feed

at the wrong density, a production error that could have resulted in termination had

Sparks not improved his performance. On April 19, 2010, Sparks allegedly

received another write-up after he improperly ran feed and failed to make

necessary adjustments, which caused the feed to blow apart. Sparks contested the

validity of the write-up, however, because it was unsigned by any supervisor.

      While sweeping at work, on June 7, 2010, Sparks stepped backward into a

hole and twisted his ankle. He saw a doctor the same day, received an ankle brace

and pain medication, and returned to work a few days later with no restrictions.

Sparks subsequently filed a claim for workers’ compensation benefits.

      On July 7, 2010, Sparks returned to the doctor, who directed him to continue

using the ankle brace and taking medication. The doctor also directed Sparks to

attend physical therapy. During his deposition, Sparks testified he did not discuss

the possibility of ankle surgery with his doctor during the July 7 visit. In a later

declaration, however, Sparks changed his testimony and stated he had discussed

the possibility of surgery with his doctor on July 7.




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      On July 27, 2010, Sparks received another write-up for failing to adjust the

feed flow on the trolley, which caused the bed to run over onto a catwalk and

locked up the trolley. Sparks disputed in the district court that the July 27 incident

constituted a production error on his part, because the trolley already had been

locked up, when he started the machine.

      On July 28, 2010, Sparks again saw his doctor, who ordered an MRI and a

nerve conduction test to determine whether Sparks would need surgery. Sparks

testified that he told Myrick later that day that “it was looking like it was very

possible [he was] going to have to have surgery.” R. at 253. Sparks asserted he

informed Holland of his possible need for surgery the next day, on July 29, 2010.

Sparks could not recall whether he informed Suiter of his ankle injury or his

possible need for surgery. Sparks testified he did not specifically request FMLA

leave for possible surgery.

      On August 3, 2010, Sparks was written up for another incident involving

feed quality. According to Sunshine, Sparks failed to make proper adjustments to

the feed and failed to ensure the bad feed was sent to regrind, which resulted in

35,000 pounds of contaminated pet food. Sparks did not dispute the August 3

incident occurred, but he argued the incident was not his fault.

      On August 4, 2010, Sparks took the day off to receive an MRI on his ankle.

When he returned to work on August 5, 2010, Sunshine terminated his


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employment. Sunshine asserted it had terminated him for running bad feed and for

failing to take steps he had taken as a matter of routine for years.

      On April 27, 2011, Sparks executed a Petition to Approve Worker’s

Compensation Settlement Agreement with Sunshine, which stated the following:

             6. Plaintiff and defendant have agreed upon, subject to court
      approval, a lump sum settlement of $2,200.00. This settlement is
      based upon the permanent partial disability rating to the leg. This
      amount shall be accepted by the employee as a full and final
      settlement of all claims of the employee for compensation benefits,
      whether in the nature of temporary partial or total; permanent partial
      or total; and or past, present or future vocational rehabilitation
      benefits.
             ....
             8. Plaintiff understands that this settlement, if approved, is a
      compromise of all claims which Plaintiff may now have or may have
      in the future as a result of this injury, and that no further Worker’s
      Compensation benefits, vocational rehabilitation or vocational
      rehabilitation expenses will be paid as a result of the aforesaid
      accident and injury.

R. at 556. An Alabama circuit judge approved the settlement agreement and noted

the agreement was a “settlement of all compensation and vocational and

rehabilitation benefits due [Sparks] under the Alabama Worker’s Compensation

Act.” R. at 558.

      On July 25, 2012, Sparks filed the instant federal complaint against

Sunshine, alleging Sunshine had violated Alabama Code § 25-5-11.1, when it

discharged him in retaliation for filing a workers’ compensation claim with respect

to his on-the-job ankle injury. He further alleged Sunshine had violated the FMLA


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by (1) interfering with his right to take FMLA leave to have reconstructive ankle

surgery, and (2) retaliating against him after he had stated his potential need for

FMLA leave.

      Sunshine moved for summary judgment on all claims and argued Sparks had

released his claims in the settlement of his workers’ compensation claim.

Alternatively, Sunshine argued Sparks’s claims failed on the merits, because he

had not established a prima facie case of retaliatory discharge under Alabama law

or interference or retaliation under the FMLA.

      The district judge found Sparks had released Sunshine of liability for his

Alabama Code § 25-5-11.1 retaliatory-discharge claim, because the Alabama

Supreme Court, in Gates Rubber Co. v. Cantrell, 678 So. 2d 754, 755-56 (Ala.

1996), and Sanders v. Southern Risk Services, 603 So. 2d 994, 995-96 (Ala. 1992),

had held that a general release in a workers’ compensation settlement agreement

precluded the employee from subsequently asserting a retaliatory-discharge claim

against his employer. The judge nevertheless addressed Sparks’s

retaliatory-discharge claim on the merits and concluded Sparks had failed to

establish a prima facie case.

      The judge determined Sparks had not released his FMLA claims in his

workers’ compensation settlement agreement. Relying on Pereda v. Brookdale

Senior Living Communities, Inc., 666 F.3d 1269 (11th Cir. 2012), the judge found


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the FMLA entitled Sparks to protection from interference, even if his triggering

event never occurred or would not eventually qualify for FMLA leave.

Nevertheless, the judge determined the claim failed, because Sparks’s statement

that “it was very possible that [he] was going to have to have surgery” was

insufficient to put Sunshine on notice of Sparks’s intent to invoke his right to take

FMLA leave. R. at 803. For the same reason, the judge found Sparks could not

establish a prima facie case of FMLA retaliation, because he could not prove he

had engaged in statutorily protected activity or his termination of employment was

causally related to statutorily protected activity. Accordingly, the judge granted

Sunshine’s motion for summary judgment on all of Sparks’s claims and dismissed

the case with prejudice.

                                 II. DISCUSSION

A. Waiver of Alabama Code § 25-5-11.1 Retaliatory-Discharge Claim

      On appeal, Sparks argues the district judge erred by finding that the release

in his workers’ compensation settlement agreement extended to his

retaliatory-discharge claim. He asserts Sanders and Cantrell are distinguishable

from his case, because the releases at issue in those cases contained “or otherwise”

language and were therefore much broader than the release in his settlement

agreement. He further contends the Alabama Supreme Court would not follow




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Sanders and Cantrell today, based on its more recent decision in Dudley v. Mesa

Industries, 770 So. 2d 1082, 1084 (Ala. 2000).

      We review a district judge’s granting summary judgment de novo and view

all evidence and draw all reasonable inferences in favor of the nonmoving party.

Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1254 (11th Cir. 2012).

Summary judgment is proper only “when there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Id.

(internal quotation marks omitted). “A genuine [dispute] of material fact exists

when a reasonable jury could return a verdict for the nonmoving party.” Id.

      In Sanders, the Supreme Court of Alabama examined whether an

employee’s Alabama Code § 25-5-11.1 retaliatory-discharge claim was precluded

by a prior settlement agreement between the parties involving workers’

compensation. Sanders, 603 So. 2d at 994-96. The settlement agreement included

a provision for a “lump sum [payment] in full settlement of any and all claims for

compensation benefits due and rehabilitation or retraining benefits due under the

Workmen’s Compensation Act of the State of Alabama.” Id. at 995 (emphasis

added). The agreement further provided that, upon payment of that sum, “the

employer shall be, and hereby is released from all claims on account of said injury,

under said Act or otherwise.” Id. (emphasis added). Regarding the § 25-5-11.1

retaliatory-discharge claim, the court stated: “Unless there is evidence of fraud, a


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settlement of an employee’s claims under the Workmen’s Compensation Act is

conclusive of any other claims the worker may have.” Id.

      Likewise, in Aratex, an employer moved for summary judgment on its

former employee’s claim for retaliatory discharge and argued the employee had

released that claim in her settlement agreement for workers’ compensation. Ex

parte Aratex Servs., Inc., 622 So. 2d 367, 368 (Ala. 1993). The Alabama Supreme

Court noted the release language in that case was virtually identical to the language

of the release at issue in Sanders. Id. It concluded that, because there was no

allegation or evidence of fraud, the settlement of the employee’s claim under the

Alabama Workmen’s Compensation Act “was conclusive of any other claims she

might have had except those claims expressly reserved in the release.” Id. at 369

(internal quotation marks omitted). Because the employee did not expressly

reserve her claim for retaliatory discharge, the trial court properly found that claim

was barred by the release agreement. Id.

      In Cantrell, the Alabama Supreme Court summarized its holdings in Sanders

and Aratex and held a “settlement of any and all claims for compensation benefits

due and rehabilitation or retraining benefits due is conclusive of any other claims,

unless there is evidence of fraud, or the claim in issue is expressly excepted from

the settlement agreement.” Cantrell, 678 So. 2d at 756 (citation and internal

quotation marks omitted).


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       The Alabama Supreme Court implicitly declined, however, to extend its

holding in Cantrell to claims brought under Alabama Code § 25-5-11.1 Dudley,

770 So. 2d at 1084-85. In Dudley, the plaintiff filed a complaint against his

employer, raising a claim for workers’ compensation benefits and a claim for

damages, pursuant to § 25-5-11, based on the employer’s alleged failure to

maintain a safety device. Id. at 1083. The parties eventually settled the workers’

compensation claim, and the order approving the settlement released the employer

from “any and all claims for compensation and vocational rehabilitation benefits

due or which may become due to the employee under the Workmen’s

Compensation Act of Alabama.” Id. The trial court simultaneously granted the

employee leave to amend his complaint to add new claims and defendants. Id.

After the employee amended his complaint, the defendants moved to dismiss,

arguing the settlement agreement had disposed of the employee’s claims. 2 Id. The

trial court granted the motion and found the settlement agreement had disposed of

the entire original complaint and that it lacked jurisdiction to consider the amended

claims. Id.




       1
          Alabama Code § 25-5-11 creates negligence causes of action against third parties who
are liable for an employee’s injury or death and against employers and co-employees for willful
conduct that caused the injury or death. Ala. Code. § 25-5-11.
       2
        The employee in Dudley did not raise a retaliatory-discharge claim against his employer
under Alabama Code § 25-5-11.1. See generally id.
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      On appeal, the Alabama Supreme Court reversed and concluded the trial

court had not disposed of the employee’s § 25-5-11 claim. Id. at 1084. The court

held the settlement agreement applied only to the claim for workers’ compensation

and vocational benefits, not the § 25-5-11 claim, in part because § 25-5-11 claims

were considered tort claims and not workers’ compensation claims. Id. at 1084-85.

Notably, the dissent in Dudley mentioned briefly that retaliatory-discharge claims

under § 25-5-11.1 are also tort claims. Id. at 1086 (Hooper, J., dissenting). The

Alabama Supreme Court, however, did not distinguish between the two types of

claims when making its ruling in Dudley. See id. at 1084-85. Moreover, the

Alabama Supreme Court has declined to review more recent cases in which the

lower court found a workers’ compensation settlement agreement released a

subsequent retaliatory-discharge claim. See, e.g., Walton v. Beverly

Enterprises-Alabama, Inc., 4 So. 3d 537, 545 (Ala. Civ. App. 2008).

      Based on our review of the Alabama precedent, the district judge did not err

by finding Sparks had released his retaliatory-discharge claim against Sunshine.

Sparks understood his settlement agreement to be “a compromise of all claims

which [he] may now have or may have in the future as a result of [his] injury, and

that no further Worker’s Compensation benefits, vocational rehabilitation or

vocational rehabilitation expenses will be paid as a result of the aforesaid accident

and injury.” R. at 556. Although the release did not contain the “or otherwise”


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language present in the releases in Sanders and Cantrell, the Alabama Supreme

Court in those cases did not focus on the presence of that phrase when deciding the

releases included retaliatory-discharge claims. Instead, the court emphasized

language stating the settlement resolved “any and all claims for compensation

benefits due and rehabilitation or retraining benefits due” and the defendant was

“released from all claims.” See Cantrell, 678 So. 2d at 754-55; Sanders, 603 So.

2d at 995-96. The order approving Sparks’s settlement contains sufficiently

similar language.

      In addition, Sparks has not alleged fraud, and, as in Aratex and Cantrell,

there was no express reservation of the retaliatory-discharge claim. Cantrell, 678

So. 2d at 756; Aratex, 622 So. 2d at 369. Although Sparks correctly asserts the

Alabama Supreme Court did not follow Cantrell in Dudley, the court in Dudley

was analyzing whether release language in a workers’ compensation settlement

agreement released a claim brought under § 25-5-11, not a retaliatory-discharge

claim brought under § 25-5-11.1. Dudley, 770 So. 2d at 1083. Moreover, the court

chose not to distinguish between the two types of claims, despite the dissent’s

mention that both claims are considered to be tort claims under Alabama law. See

generally id. Thus, the Alabama Supreme Court arguably intended for Sanders

and Cantrell to remain good law. Sparks has failed to distinguish the situation in

his case from the situation dealt with in Sanders and Cantrell. Therefore, the


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district judge did not err by finding Sparks had released his § 25-5-11.1

retaliatory-discharge claim. 3

B. FMLA Interference and Retaliation Claims

       Sparks also argues on appeal he gave Sunshine sufficient notice of his need

for FMLA leave when he informed his supervisors that surgery seemed imminent.

He contends Sunshine violated his rights under the FMLA, because Sunshine

terminated him to avoid accommodating his need for FMLA leave and in

retaliation for requesting such leave.

       The FMLA grants an eligible employee the right to take up to 12 work

weeks of unpaid leave for any 12-month period for “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). To protect this right, the FMLA allows

employees to bring a private cause of action for interference or retaliation.

Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir.

2006). To assert a claim for interference under the FMLA, an employee must be


       3
          Sparks has failed to establish a prima facie case of retaliatory discharge. See Ala.
Power Co. v. Aldridge, 854 So. 2d 554, 563 (Ala. 2002) (holding a plaintiff establishes a prima
facie case of retaliatory discharge by showing (1) an employment relationship, (2) an on-the-job
injury, (3) knowledge on the part of the employer of the on-the-job injury, and (4) subsequent
termination of employment based solely upon the employee’s on-the-job injury and the filing of
a workers’ compensation claim). Sparks has not provided substantive evidence showing
Sunshine terminated him based solely upon his ankle injury and his workers’ compensation
claim. Moreover, no evidence demonstrates Sunshine’s stated basis for his termination, his
many production errors, was pretext for retaliation.

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“entitled to the benefit denied.” Id. To assert an FMLA retaliation claim, the

employee must show that “he engaged in statutorily protected activity.” Id.

at 1297.

      In order to receive FMLA protections, an employee must be both eligible,

meaning having worked the requisite hours, and entitled to leave, meaning an

employee has experienced a triggering event. Pereda, 666 F.3d at 1272.

Nevertheless, because the FMLA requires notice in advance of future leave,

employees are protected from interference prior to the occurrence of a triggering

event. Id. at 1274. Thus, a pre-eligible employee has a cause of action if his

employer terminates him in order to avoid having to accommodate that employee

with rightful FMLA leave once the employee becomes eligible. Id. at 1275.

      The FMLA requires employees to provide 30 days of advance notice of the

leave, when the need to take leave is foreseeable. 29 U.S.C. § 2612(e)(2)(B); 29

C.F.R. § 825.302(a). Although leave is foreseeable, if “30 days notice is not

practicable, such as because of a lack of knowledge of approximately when the

leave will be required to begin, a change in circumstances, or a medical

emergency, notice must be given as soon as practicable.” 29 C.F.R. § 825.302(a).

“An employee is not required to assert expressly [his] right to take leave under the

FMLA.” Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1383 (11th Cir. 2005)

(citing 29 C.F.R. §§ 825.302(c), 825.303(b)). The notice, however, “must be


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sufficient to make the employer aware that the employee needs FMLA-qualifying

leave, and the anticipated timing and duration of the leave.” Id. (internal quotation

marks omitted).

      Sparks did not provide Sunshine with notice sufficient to make the company

aware that he needed FMLA-qualifying leave. Sparks merely informed his

supervisors that “it was looking like it was very possible [he was] going to have to

have surgery.” R. at 253. Sparks did not request leave or provide any information

related to the timing or duration of any leave. At that point, it was possible Sparks

would not need surgery and could continue working with no restrictions. Sparks

did not know what type of surgery he possibly needed or if he even needed time

off for surgery. Although Sparks relies on Pereda to support his argument, that

case is distinguishable. Pereda concerned whether the FMLA protected an

employee, who gave notice of her need for leave before she was eligible for FMLA

leave, because she had not yet worked the requisite hours and had not experienced

the triggering event, the birth of her child. Pereda, 666 F.3d at 1272. The key

difference in Pereda is that the employee gave sufficient notice of her need for

leave. She informed her employer she would be requesting FMLA leave after the

birth of her child on or about November 30, 2009. Id. at 1271.

      Because Sunshine was unaware Sparks needed or desired FMLA leave,

Sparks has failed to establish Sunshine interfered with his rights under the statute


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by terminating him before he could take FMLA leave. For the same reason,

Sparks has failed to establish Sunshine retaliated against him for engaging in a

protected activity under the statute. Because the evidence demonstrates Sunshine

terminated Sparks’s employment based on his poor performance, not in retaliation,

the district judge did not err by granting summary judgment to Sunshine on

Sparks’s FMLA interference and retaliation claims.

      AFFIRMED.




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