                                                                                   [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                            No. 10-14723                 JAN 10, 2012
                                      ________________________            JOHN LEY
                                                                           CLERK
                                D.C. Docket No. 0:10-cv-60773-FAM

KATHRYN PEREDA,
an individual,

llllllllllllllllllllllllllllllllllllllll                                 Plaintiff - Appellant,

                                                versus

BROOKDALE SENIOR LIVING COMMUNITIES, INC.,
a Delaware corporation,

llllllllllllllllllllllllllllllllllllllll                               Defendant - Appellee.

                                     ________________________

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

                                           (January 10, 2012)

Before WILSON and FAY, Circuit Judges, and RESTANI, *Judge.



*
 Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
FAY, Circuit Judge:

      Appellant Kathryn Pereda (“Pereda”) appeals the district court’s dismissal

of her two-count complaint alleging interference and retaliation under the Family

and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq., against

Appellee Brookdale Senior Living Communities (“Brookdale”). The district court

held that because Pereda was not an eligible employee at the time she was

terminated, she could not bring either claim under the FMLA. This appeal presents

an issue of first impression for this Circuit: whether the FMLA protects a pre-

eligibility request for post-eligibility leave. We answer that question in the

affirmative, and therefore reverse.


                                              I.


      Brookdale operates senior living facilities. Pereda began her employment at

the facility located at The Preserve at Palm-Aire in Pompano Beach, Florida on

October 5, 2008. She was terminated 11 months later, in September of 2009. In

June of 2009, Brookdale was advised that Pereda was pregnant and would be

requesting FMLA leave after the birth of her child on or about November 30,

2009. Pereda alleges that, prior to Brookdale learning about her pregnancy, she

was a top employee. After learning about her pregnancy, Pereda alleges that


                                          2
Brookdale began harassing her, causing stress and other complications in her

pregnancy. In addition, Pereda alleges that Brookdale’s management began

denigrating her job performance and placed her on a performance improvement

plan with unattainable goals.


      At the time of these complications, Pereda was eligible for accrued sick and

personal leave. Pereda alleges that she was told by management that she could

make doctors visits. Yet, after placing Pereda on the performance improvement

plan, management began writing her up for taking leave to visit the doctor. Pereda

alleges that other employees were not written up for taking the same. In August of

2009, Pereda took a few days off, notifying Brookdale via e-mail. When she

returned to work, she was again written up by management for not getting verbal

authorization for her absence.


      Later that same month, Pereda continued to suffer more pregnancy-related

medical issues. Pereda alleges that management told her she was eligible for non-

FMLA leave, including the use of sick, personal, and vacation days. In early

September, she again took time off after her physician instructed that she needed

bed rest. She left a message with the Executive Director, but never heard back.

Several days after she was finally able to reach someone at Brookdale, she was


                                         3
fired.


         On May 11, 2010, Pereda filed her Complaint against Brookdale alleging

claims for interference (Count I) and retaliation (Count II) under the FMLA. Her

Complaint asserted that “Brookdale [interfered with her] FMLA rights, insofar as

Brookdale denied Pereda benefits under the FMLA to which she was entitled, and

terminated her for attempting to exercise those rights.” Brookdale moved to

dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of

Civil Procedure. On September 22, 2010,1 the district court dismissed Pereda’s

Complaint. In its order of dismissal, the district court held that Brookdale could

not have interfered with Pereda’s FMLA rights, because she was not entitled to

FMLA leave at the time that she requested it. Moreover, the district court also

held that since Pereda was not eligible for FMLA leave, she could not have

engaged in protected activity and so Brookdale could not have retaliated against

her. Pereda now appeals.


                                               II.

         We review a dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) de
1
 Pereda filed the instant case on May 11, 2010. On June 2, 2010, Brookdale filed a Motion to
Dismiss. Pereda failed to file its Response in Opposition and the district court dismissed the case
on June 24, 2010. On that same day, Pereda filed a Motion for Relief from the district court’s
Order of Dismissal based on excusable neglect, which the district court granted on September 13,
2010. A few days later, on September 22, 2010, the district court issued its Order on the merits,
and granted Brookdale’s Motion to Dismiss on the merits.

                                                4
novo. Speaker v. U.S. Dep’t. of Health &Human Servs. Centers for Disease

Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). We “accept[ ] the

factual allegations in the complaint as true and construe[ ] them in the light most

favorable to the plaintiff.” Id.

                                             III.

       Before the Court is the question left open by Walker v. Elmore County,

Board of Education, 379 F.3d 1249, 1253 (11th Cir. 2004): “whether the FMLA

protects a pre-eligibility request for post-eligibility maternity leave.”2 We resolve

that question in the affirmative.

       Under section 2615(a) of the FMLA, an employee may bring two types of

claims: interference claims, in which an employee asserts that his employer denied

or otherwise interfered with his substantive rights under the Act; and retaliation

claims, in which an employee asserts that his employer discriminated against him

because he engaged in an activity protected by the Act. Strickland v. Water Works

& Sewer Bd. of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001) (citations

omitted).
2
 In Walker, the Court held that the FMLA did not protect an attempt to exercise the right to
begin FMLA-leave before one is eligible. Id. There, Walker, a third-grade teacher, announced she
was pregnant and would be needing leave beginning on her due date of August 2. Id. at. 1250.
Because Walker needed leave to commence several days before she was eligible under the
FMLA, the Court held that she was not protected by the Act. The Walker Court reserved for
another day the factual scenario before us today: whether the FMLA protects a pre-eligibility
request for post-eligibility maternity leave.

                                               5
       In order to receive FMLA protections, one must be both eligible, meaning

having worked the requisite hours,3 and entitled to leave, meaning an employee

has experienced a triggering event, such as the birth of a child. See 29 U.S.C.

2612(a)(1) (stating that only an eligible employee shall be entitled to FMLA

leave). “The determination of whether an employee has worked for the employer

for at least 1,250 hours in the past 12 months and has been employed by the

employer for a total of at least 12 months must be made as of the date the FMLA

leave is to start.” 29 C.F.R. § 825.110(d).4

       Here, it is undisputed that Pereda, at the time she requested leave, was not

eligible for FMLA protection because she had not worked the requisite hours and

had not yet experienced a triggering event, the birth of her child. It is also

undisputed that she would have been entitled to FMLA protection by the time she

gave birth and began her requested leave.5
3
  Under the FMLA, an eligible employee is one who has worked for at least 12 months, and for
at least 1,250 hours during the previous 12-month period. 29 U.S.C. § 2611(2).
4
  Brookdale argues 29 C.F.R. § 825.110(d) is inapplicable to this case because the regulation
was enacted to address whether a employee out on non-FMLA leave could be transferred to
FMLA leave once the employee became eligible. Brookdale relies on Brungart v. BellSouth
Telecomm. Inc., 231 F.3d 791, 795–97 (11th Cir. 2000) to argue that Pereda’s interpretation of
the regulation would improperly expand the reach of the FMLA to cover ineligible employees.
We find Brungart, which held an employer’s failure to provide sufficient notice of ineligibility
did not transform an ineligible employee to an eligible employee, inapplicable to the issues of
this case. Moreover, our holding does not expand FMLA eligibility to an otherwise ineligible
employee.
5
  Pereda was first employed by Brookdale on October 5, 2008 and terminated on September 5,
2009. Had she not been terminated, Pereda would have been eligible and entitled to begin
FMLA-leave as of her due date on November 30, 2009. By November 30, 2009 she would have

                                                6
       The district court denied Pereda’s interference claim because she had not yet

experienced a triggering event when she requested her leave and, thus, “she was

not entitled to FMLA leave such that Defendant could have interfered with her

right.” Dist. Ct. Order at 4. The district court also denied Pereda’s retaliation

claim, finding that Pereda’s request for leave was not a statutorily protected

activity. The district court reasoned that the FMLA did not grant employees the

right to request leave before becoming eligible and, because Pereda was not

eligible for FMLA leave when she made her request, her request was not an

attempt to exercise a protected right.6

       Pereda argues that if the district court decision is allowed to stand,

employees will fear mentioning leave in anticipation of the birth of a child.

Moreover, employees would cease to provide their employers with adequate notice

of an impeding absence in fear of retaliation. Brookdale counters that Pereda was

been employed 14 months, well within the 12-month/1,250-hour Department of Labor (“DOL”)
requirement.
6
  In support of its conclusion that an employee who is not eligible at the time of her request does
not engage in protected activity, the district court cited several district court opinions. See Dist.
Ct. Order at 6. We conclude these cases are inapplicable because none of the cases cited
involved an employee who would have been eligible at the time his or her leave was to
commence. See Hills v. Wal-Mart Stores, Inc., No. 08-23197-CIV, 2010 WL 1839268, at *7–8
(S.D. Fla. May 6, 2010) (dismissing retaliation claim when plaintiff was not an eligible employee
at the time of the request or when leave commenced); Pennant v. Convergys Corp., 368 F. Supp.
2d 1307, 1310 (S.D. Fla. 2005) (calculating eligibility as of the day leave commenced per 29
C.F.R. § 825.110(d)); Morehardt v. Sprint Airlines, Inc., 174 F. Supp. 2d 1272, (M.D. Fla. 2001)
(dismissing retaliation claim when employee had not worked the required number of hours by the
day of her request, which was also the day FMLA leave was to commence). Because none of the
cases involved a pre-eligibility request for post-eligibility leave, they are not applicable here.

                                                 7
not an FMLA eligible employee at any point during her employment because she

was terminated well before the 12-month/1,250 hour requirement. Because she

was not an eligible employee, she was not entitled to any protection pursuant to

the FMLA and both her claims were properly dismissed. Moreover, Brookdale

argues that Pereda’s anticipated eligibility was not sufficient to make her an

eligible employee under the FMLA in June 2009, when Brookdale learned of her

pregnancy.

      After examining the various elements of the FMLA regulatory scheme, such

as the 30-day notice requirement and the DOL implementing regulations, we

conclude that allowing the district court’s ruling to stand would violate the

purposes for which the FMLA was enacted. Without protecting against pre-

eligibility interference, a loophole is created whereby an employer has total

freedom to terminate an employee before she can ever become eligible. Such a

situation is contrary to the basic concept of the FMLA. Thus, this Court disagrees

with the district court and finds that Pereda stated sufficient facts to establish

prima facie claims for both FMLA interference and retaliation. We address each

claim in turn.




                                           8
               A.     FMLA Interference7

       The FMLA makes it illegal “for an employer to interfere with, restrain, or

deny the exercise of or the attempt to exercise, any right provided under this

subchapter.” 29 U.S.C. § 2615(a)(1). “A Plaintiff claiming interference must

demonstrate by a preponderance of the evidence that she was denied a benefit to

which she was entitled.” Harley v. Health Ctr. of Coconut Creek, 487 F. Supp. 2d

1344, 1357 (S.D. Fla. 2006) (citation omitted). In Harley, Judge Gold explained

that “unless unique circumstances exist, a pregnant employee is only entitled to

protection against interference with her FMLA rights once she delivers her baby

and the circumstances of her needing leave arises.” 487 F. Supp. 2d at 1358. The

district court in this case, following Harley, held that because Pereda had not yet

delivered her child, she was not entitled to leave at the time of her request, and,

thus, Pereda could not prove she was denied a benefit to which she was entitled.

We disagree with such a narrow interpretation of the statute.

       We hold that because the FMLA requires notice in advance of future leave,

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

event, such as the birth of a child. The FMLA mandates that, “In any case in which


7
 There exists a dearth of opinions from circuit courts on the precise issue we are dealing with
here. Consequently, we are setting forth excerpts from some district court opinions that, although
not precedential, are illuminating and persuasive.

                                                9
the necessity for leave . . . is foreseeable based on an expected birth or placement,

the employee shall provide the employer with not less than 30 days’ notice, before

the date the leave is to begin, of the employee’s intention to take leave . . . .” 29

U.S.C. § 2612(e)(1). The notice period was meant as protection for employers to

provide them with sufficient notice of extended absences. “It would be illogical to

interpret the notice requirement in a way that requires employees to disclose

requests for leave which would, in turn, expose them to retaliation, or interference,

for which they have no remedy.” Reynolds v. Inter-Indus. Conf. On Auto Collision

Repair, 594 F. Supp. 2d 925,928 (N.D. Ill. 2009).

      Without remedy, the advanced notice requirement becomes a trap for newer

employees and extends to employers a significant exemption from liability. Beffert

v. Pa. Dep’t. Of Pub. Welfare, No. Civ. A. 05-43, 2005 WL 906362, at *3 (E.D.

Pa., April 18, 2005). Such an interpretation is inconsistent with FMLA and the

purpose of the Act. If we were to hold that Pereda had no cause of action for

interference because she had not yet been employed the full 1,250 hours during a

12-month period, or given birth to her child, than she should not be required to

give her employer any advance notice of impending leave. As the statute requires

advance notice, logic mandates that FMLA be read to allow a cause of action for

employees who, like Pereda, in goodwill exceed the notice requirement.


                                           10
      In support of its position, Brookdale argues that, pursuant to DOL’s

implementing regulation 29 C.F.R. § 825.112, employees are eligible for FMLA

leave only upon the delivery of a child. Eligibility is but one aspect of the

regulation. Notice of a future trigger event is another. It is axiomatic that the

delivery of a child is necessary in order for FMLA leave to actually commence,

but that requirement does not open the door for pre-eligible interference with

FMLA rights with impunity. Furthermore, that regulation cannot be read in

isolation. Taken together with other regulations addressing leave, it is clear that

the FMLA scheme intends that a determination as to FMLA eligibility be made “as

of the date the FMLA leave is to start.” 29 C.F.R. § 825.110(d). “Moreover, the

“reference to ‘employee’ rather than ‘eligible employee’ . . . is a recognition that

some employees will and should give notice of future leave before they have been

on the job for twelve months.” Beffert, 2005 WL 906362, at *3. Notice of an

intent to use FMLA leave in the future is distinct but deserving of similar

protection.

      Thus, because the statute contemplates notice of leave in advance of

becoming eligible, i.e., giving birth to a child, the FMLA regulatory scheme must

necessarily protect pre-eligible employees such as Pereda, who put their employers

on notice of a post-eligibility leave request. An expectant mother who is along in


                                          11
her pregnancy cannot hide that, in due time, she will give birth to a child. By the

very nature of the fact that a full-term pregnancy takes nine months to complete,

not affording pre-eligible expecting parents any protection would leave them

exposed to adverse action by their employer.

      Although there are no Eleventh Circuit decisions on point, there is helpful

precedent on the meaning of “employee” for FMLA purposes. While on

concededly distinct facts, here we must construe Pereda as “eligible” for

protection if we are to honor the purpose for which FMLA was enacted. In Smith

v. BellSouth Telecommunications, Inc., 273 F.3d 1303, 1307 (11th Cir. 2001), we

held that a former employee who alleged that his employer retaliated against him

in its decision not to rehire him is considered an “employee” within the meaning

of the FMLA. We further explained that a narrow interpretation would permit an

employer to evade the FMLA by blacklisting an employee that the employer

suspects is likely to take advantage of the Act. Id. at 1307 (citing Duckworth v.

Pratt &Whitney, Inc., 152 F.3d 1,11 (1st Cir. 1998)). Here, the interpretation that

Brookdale urges would similarly frustrate the purpose of the FMLA by permitting

employers to eliminate staff that the employer perceives will need FMLA.

      In that same vein, Brookdale argues that the term “eligible employee” in the

FMLA evinces clear congressional intent to limit the right to bring private actions.


                                         12
This Court does not disagree entirely. An employee has to be both eligible and

entitled to FMLA leave on the day her FMLA leave is to commence. As stated

above, these requirements do not open the door for pre-eligibility interference with

FMLA rights. Contrary to Brookdale’s contentions, the Court’s holding today does

not expand FMLA coverage to a new class of employees. We are simply holding

that a pre-eligible employee has a cause of action if an employer terminates her in

order to avoid having to accommodate that employee with rightful FMLA leave

rights once that employee becomes eligible.

      B.     FMLA Retaliation

      Turning to Pereda’s claim for FMLA retaliation, in order to state a prima

facie case, Pereda must show that: “(1) she engaged in a statutorily protected

activity; (2) she suffered an adverse employment decision; and (3) the decision

was casually related to a protected activity.” Walker, 379 F.3d at 1252 (citing

Strickland, 239 F.3d at 1207). After concluding that Pereda was not eligible for

FMLA benefits, the district court ruled that she therefore could not have engaged

in statutorily protected activity, even if she would have become eligible at some

point in the future.

      Because we have concluded that the FMLA protects a pre-eligibility request

for post-eligibility maternity leave, we hold that Pereda could also state a cause of


                                         13
action for FMLA retaliation. Here, we need only address the first prong of

FMLA’s retaliation analysis. Under the allegations of the Complaint, Pereda was

engaged in statutorily protected activity when she discussed with her employer the

FMLA leave she was denied after the birth of her baby.

      We hold that a pre-eligible request for post-eligible leave is protected

activity because the FMLA aims to support both employees in the process of

exercising their FMLA rights and employers in planning for the absence of

employees on FMLA leave. Protecting both reflects that the FMLA should be

executed “in a manner that accommodates the legitimate interest of employers,” 29

U.S.C. 2601(b)(3), without abusing the interests of employees.

      Under the FMLA an employee need not be currently exercising her rights or

currently eligible for FMLA leave in order to be protected from retaliation. The

FMLA makes it “unlawful for any employer to interfere with, restrain or deny the

exercise of or the attempt to exercise, any right” provided under the FMLA. 29

U.S.C. § 2615(a)(1). The FMLA also protects employees and prospective

employees even if the individual is not currently eligible or entitled to leave. See

29 C.F.R. § 825.220 (prohibiting employers from discriminating against

employees or prospective employees who have previously used FMLA leave); see

also Potts v. Franklin Elec. Co., No. Civ. 05-443, 2006 WL 2474964, at *1 (E.D.


                                         14
Okla. 2006) (holding an employee who gave notice of expected FMLA leave

could bring a retaliation claim even though a triggering event never occurred). In

Potts, the district court reasoned that “[i]f courts were to read the FMLA to allow

employers to dismiss ineligible employees who give advance notice of their need

for FMLA leave, it would open a large loophole in the law and undermine the

plain language and purpose of the notice requirement in § 2612(e)(1).” 2006 WL

2474964, at *3. Similarly, the FMLA protects Pereda from retaliation, even

though at the time of her request and termination, she was not yet eligible or

entitled to FMLA leave because she had not yet given birth.8 The question

remains for the district court as to whether there is colorable evidence that

Brookdale did in fact retaliate against plaintiff.

       Brookdale warns of a slippery slope where, if Pereda’s argument is

accepted, an employee could be deemed FMLA eligible from the first week of

employment. However, as the court mentioned in Reynolds, “The scenario in

8
  Our holding that a pre-eligibility request for post-eligibility leave is a protected activity is in
accord with other courts to consider the issue. See Skrjanc v. Great Lakes Power Serv. Co., 272
F.3d 309, 314 (6th Cir. 2001) (“The right to actually take [FMLA] leave . . . includes the right to
declare an intention to take such leave in the future.”); Beffert, 2005 WL 906362, at *3 (holding
a pregnant employee who provided notice of post-eligible FMLA leave could bring a retaliation
claim even though she was not eligible at the time of her request); Reynolds, 594 F. Supp. 2d at
928 (finding an employer “has no legitimate interest in being able to terminate an eleventh
month-employee for simply requesting foreseeable leave for which he is eligible” especially
when the same decision would be prohibited a month later); Walker, 223 F. Supp. 2d at 1260
(finding it “absurd” to interpret the FMLA to allow a employer to retaliate against an employee
who gives pre-eligible notice of post-eligible leave).

                                                 15
which an employee works eight hours and then requests foreseeable FMLA leave

beginning in 364 days . . . is a non-starter.” 594 F. Supp. 2d at 930. That

employee, just as Pereda, still could be terminated for legitimate reasons, such as

poor performance or dishonesty. Moreover, liability to that employee could also

be denied for failure to meet other requirements of the FMLA. Our decision today

simply means that pre-eligible discussion of post-eligible FMLA leave is protected

activity under the FMLA. Accordingly, because Pereda engaged in protected

activity by discussing her maternity plans with her employer, she has alleged a

valid cause of action for retaliation under the FMLA.

                                        IV.

      For the foregoing reasons, the district court’s judgment is reversed and the

case is remanded for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.




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