                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-14445                ELEVENTH CIRCUIT
                                                         FEBRUARY 24, 2010
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

                  D. C. Docket No. 08-60729-CV-KAM

JUDITH GUNZBURGER,

                                                    Plaintiff-Appellant,

                                 versus

SHERIFF OF BROWARD COUNTY, FLORIDA,
Al Lamberti,
                                                    Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                           (February 24, 2010)


Before BLACK, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
      Judith Gunzburger appeals the district court’s grant of summary judgment in

favor of the Sheriff of Broward County (SBC), whom Gunzburger sued for

allegedly interfering with her rights under the Family and Medical Leave Act

(FMLA). After de novo review, we affirm the district court. See Rioux v. City of

Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008) (reviewing the district court’s

grant of summary judgment de novo).

      SBC hired Gunzburger in July 2005 as a Detention Program Specialist. In

March 2007, she was promoted to Child Investigation Specialist, a position that

had a one-year probationary period during which Gunzburger could be dismissed

without appeal. Gunzburger’s supervisors reported that she regularly failed to

properly submit reports and timely follow-up on her cases, sometimes resulting in

danger to the children involved. On November 8, 2007, Gunzburger met with her

supervisors who addressed her job deficiencies.

      Four days later, on November 12, 2007, Gunzburger claims she went to the

hospital complaining of pain and numbness on her left side. She testified she was

hospitalized for two days before being discharged with a diagnosis of

cytomegalovirus (CMV) and a low-grade fever. Gunzburger described her

symptoms as a sore throat, headaches, lethargy, fatigue, and fever; her doctor

recommended rest and Tylenol.

                                         2
      Gunzburger did not report to work from November 12, 2007 through

January 31, 2008, the date on which she was terminated. For two weeks during

that period, Gunzburger’s friend Angela Wagoner visited Gunzburger from

Louisiana. Over the course of Wagoner’s visit, the women went to restaurants,

visited art events, went sightseeing, and shopped in Hollywood, Fort Lauderdale,

and Miami Beach.

      Gunzburger claims SBC had sufficient notice that the two week absence

should have been classified as FMLA leave. On November 29, 2007, Gunzburger

submitted a Return to Work Authorization Form, on which her doctor, Dr. Morton

Weinstein, stated Gunzburger had been under his care on “11/08/2007 - cont.,” but

indicating her condition did not create any temporary or permanent work

restrictions. On January 7, 2008, Gunzburger applied for short term disability

(STD) benefits though Standard Insurance Company (Standard), which provides a

policy SBC employees can purchase at their option and sole expense; SBC has no

oversight over Standard’s application procedures or eligibility determinations.

Dr. Weinstein filled out the “attending physician” paperwork required for the STD

claim, on which he stated Gunzburger had CMV and a low grade fever, her

condition had improved, and her prognosis was good. He left blank the field

asking for a description of the employee’s working capabilities and restrictions

                                         3
and stated he could not determine when she would be able to return to work but

had a follow up appointment with her in four weeks. Standard approved the claim

on January 14, 2008, and SBC received a copy of that approval letter, which did

not provide any details about the nature of Gunzburger’s condition.

       In mid-January 2008, SBC notified Gunzburger it had not received the

medical certification that must be submitted by employees who wished to qualify

for FMLA benefits.1 On January 24, 2008, Gunzburger submitted the Medical

Certification Form for her FMLA request on which Dr. Weinstein stated

Gunzburger did not have a serious health condition that made her eligible for

FMLA leave. Based on that form alone, SBC denied Gunzburger’s application for

FMLA benefits. Gunzburger did not submit any additional records nor contact

anyone at SBC to dispute the denial of FMLA benefits after the denial decision

was communicated.

       On January 31, 2008, Gunzburger was terminated for failure to meet the

probationary standards of the Child Investigation Specialist position Gunzburger

filed suit against SBC for the violation of her FMLA rights in May 2008. In May

2009, SBC filed a motion for summary judgment which Gunzburger opposed;



       1
       The certification requirement is outlined in SBC’s policy manual, with which SBC
employees are required to be familiar.

                                              4
Gunzburger filed a cross motion for partial summary judgment. In July, the

district court granted summary judgment in favor of SBC and denied

Gunzburger’s subsequent motion for rehearing. The district court ruled as a

matter of law that Gunzburger was not denied any benefits to which she was

entitled under the FMLA.

       We have thoroughly reviewed the record and the briefs in this case and

agree with the district court’s conclusion: Gunzburger’s FMLA claim lacks merit.

SBC was entitled to require medical documentation of a serious health condition

before classifying her absence as FMLA leave. Cash v. Smith, 231 F.3d 1301, ,

1307 (11th Cir. 2000); see 29 U.S.C. § 2613(a); 29 C.F.R. § 825.306(d). SBC was

obliged not to classify the absence as FMLA leave if the requested medical

certification indicated the reason for the absence was not a qualifying condition.

See 29 C.F.R. § 825.313(b); see also Stoops v. One Call Commc’ns., 141 F.3d

309, 312 (7th Cir. 1998). Gunzburger provided a medical certification stating she

did not have a serious health condition. She provided no documentation

indicating the certification was errant.2 SBC was entitled to deny her FMLA


       2
        Gunzburger and Wagoner swear Gunzburger submitted paperwork documenting
Gunzburger’s physical condition to Human Resources in HR in December 2007. It is unclear
whether that form is the Return to Work Authorization Form or another that is not in the record.
There is no citation to a form that indicates Gunzburger had a work-restricting or serious health
condition.

                                                5
benefits accordingly. Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1385

(11th Cir. 2005) (holding an employer did not violate FMLA, because the doctor’s

note the employee provided did not state a qualifying condition, and “[t]he

employee cannot merely demand leave; he must give the employer a reason to

believe that he is entitled to it”); Cash, 231 F.3d at 1307 (affirming summary

judgment for employer after the employee’s physician indicated on the FMLA

certification form that the employee did not qualify for FMLA benefits); see also

Stoops, 141 F.3d at 313–14 (holding an employer does not violate the FMLA by

denying benefits in reliance on a physician’s certification that an employee does

not have a qualifying health condition).

      We conclude the district court did not err in granting SBC’s motion for

summary judgment. For the reasons stated above, we affirm.

      AFFIRMED.




                                           6
