No. _________

================================================================

In The

Supreme Court of the United States

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YOOSUN HAN,

Petitioner,

v.

EMORY UNIVERSITY,

Respondent.

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On Petition For A Writ Of Certiorari To The United States Court Of Appeals

For The Eleventh Circuit

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PETITION FOR A WRIT OF CERTIORARI

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JAMES RADFORD 315 W. Ponce de Leon Ave. Suite 1080 Decatur, Georgia 30030 james@decaturlegal.com (678) 271-0302

Counsel for Petitioner

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

Whether the FMLA may require an employer to make reasonable accommodations to an ill employee in order to carry out the purposes of FMLA.

Whether a reasonable jury could determine that the employer’s leave reporting requirement was overly onerous and therefore interfered with the employee’s rights under FMLA.

ii

LIST OF PARTIES

The Petitioner herein, and Plaintiff in the proceed-ings below is Yoosun Han, who was a Manager of Re-search Projects in the Renal Division of the Emory University School of Medicine. The Respondent, and Defendant below is Emory University, Petitioner’s for-mer employer.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................................. i

LIST OF PARTIES ................................................. ii

TABLE OF CONTENTS ........................................ iii

TABLE OF AUTHORITIES ................................... v

PETITION FOR WRIT OF CERTIORARI ............ 1

OPINIONS BELOW ............................................... 1

JURISDICTIONAL STATEMENT ........................ 1

STATUTORY PROVISIONS INVOLVED ............. 1

STATEMENT OF THE CASE ................................ 2

I. Introduction ................................................. 2

II. Facts ............................................................. 3

III. Proceedings Below ....................................... 8

REASONS FOR GRANTING THE WRIT ............. 9

I. THIS COURT HAS NOT RULED ON THE ISSUE OF WHETHER FMLA MAY RE-QUIRE REASONABLE ACCOMMODA-TIONS TO AN ILL EMPLOYEE UNDER APPROPRIATE CIRCUMSTANCES, LEAV-ING THE LOWER COURTS WITHOUT CLEAR PRECEDENT ................................. 9

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TABLE OF CONTENTS – Continued

Page

II. THE ELEVENTH CIRCUIT’S ORDER WA-TERS DOWN THE LEGISLATIVE PUR-POSE OF THE FMLA WITH A PER SE RULE BARRING A JURY FROM DETER-MINING THAT OVERLY ONEROUS LEAVE REPORTING REQUIREMENTS INTERFERE WITH AN EMPLOYEE’S FMLA RIGHTS ............................................ 16

CONCLUSION ....................................................... 19

APPENDIX

United States Court of Appeals for the Eleventh Circuit, Opinion, September 29, 2016 ............. App. 1

United States District Court for the North- ern District of Georgia, Order, September 28, 2015 ................................................................ App. 11

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TABLE OF AUTHORITIES

Page

CASES

UNITED STATES SUPREME COURT

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006) ....................................................................... 12

Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979) ....................... 13

Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 131 S. Ct. 863, 178 L. Ed. 2d 694 (2011) ................ 12

Wyandotte Transp. Co. v. United States, 389 U.S. 191, 88 S. Ct. 379, 19 L. Ed. 2d 407 (1967) ............ 13

UNITED STATES COURTS OF APPEALS

Battle v. United Parcel Serv., Inc., 438 F.3d 856 (8th Cir. 2006) .......................................................... 10

Bell v. Dallas Cty., 432 F. App’x 330 (5th Cir. 2011) ........................................................................ 16

Callison v. City of Phila., 430 F.3d 117 (3d Cir. 2005) ........................................................................ 17

Davidson v. Chestnut, 193 F.3d 144 (2d Cir. 1999) ................................................................. 18

Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1 (1st Cir. 1998) .......................................................... 13

Gilliard v. Ga. Dep’t of Corr., 500 F. App’x 860 (11th Cir. 2012) ........................................................ 10

Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266 (3d Cir. 2012) ................................................................. 10

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TABLE OF AUTHORITIES – Continued

Page

O’Donnell v. Passport Health Commc’ns, Inc., 561 F. App’x 212 (3d Cir. 2014) ............................... 17

Sabourin v. Univ. of Utah, 676 F.3d 950 (10th Cir. 2012) ................................................................. 17

Stallings v. Hussmann Corp., 447 F.3d 1041 (8th Cir. 2006) ................................................................. 16

Tardie v. Rehab. Hosp. of Rhode Island, 168 F.3d 538 (1st Cir. 1999) ................................................... 10

UNITED STATES DISTRICT COURTS

Bell v. Johnson, 308 F.3d 594 (6th Cir. 2002) ............. 18

Franks v. Indian Rivers Mental Health Ctr., No. 7:08-cv-1035-slb, 2012 WL 4736444 (N.D. Ala. Sept. 30, 2012) ......................................................... 18

Kastor v. Cash Exp. of Tennessee, LLC, 77 F. Supp. 3d 605 (W.D. Ky. 2015) .............................. 12

McConnell v. Swifty Transp., Inc., No. 2:04-cv-0153, 2005 WL 1865386 (S.D. Ohio July 29, 2005) ........................................................................ 18

Reilly v. Revlon, Inc., 620 F. Supp. 2d 524 (S.D.N.Y. 2009) ........................................................ 17

Smith-Schrenk v. Genon Energy Servs., L.L.C., No. CIV.A. H-13-2902, 2015 WL 150727 (S.D. Tex. Jan. 12, 2015) ................................................... 17

Stotts v. Pierson, 976 F. Supp. 2d 948 (S.D. Ohio 2013) ........................................................................ 18

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TABLE OF AUTHORITIES – Continued

Page

STATUTES

28 U.S.C. § 1254(1) ........................................................ 1

29 U.S.C. § 2601 ...................................................... 2, 12

29 U.S.C. § 2915(a)(1) ................................................... 1

REGULATIONS

29 C.F.R. § 825.220(b) ................................................. 16

29 C.F.R. § 825.702(a) ............................................. 9, 15

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PETITION FOR WRIT OF CERTIORARI

Yoosun Han respectfully petitions for a writ of certiorari to review the judgment of the U.S. Court of Appeals for the Eleventh Circuit.

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OPINIONS BELOW

The Eleventh Circuit’s opinion is reprinted at App. 1. It is available at 2016 WL 5436895. The opinion of the U.S. District Court for the Northern District of Georgia is reprinted at App. 11.

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JURISDICTIONAL STATEMENT

The Eleventh Circuit filed its opinion on Septem-ber 29, 2016. This Court has jurisdiction under 28 U.S.C. § 1254(1).

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STATUTORY PROVISIONS INVOLVED

This petition turns on the anti interference provi-sions of the Family and Medical Leave Act (FMLA), which provides that “[i]t shall be unlawful for any em-ployer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2915(a)(1).

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STATEMENT OF THE CASE

I. INTRODUCTION

This case arises under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Petitioner Yoosun Han suffers from a chronic condition that re-quired her to seek intermittent leave from employment under the protections of FMLA. Petitioner requested a flexible working schedule from her employer – primar-ily in the form of permission to arrive at work later in the day and then work late into the evening – so that she could continue to get all her work done while at the same time avoid “burning through” her protected leave. The employer denied the request, in large part. The employer also imposed upon Petitioner require-ments for reporting her FMLA leave that went above and beyond the leave reporting requirements for other employees who utilized non-FMLA sick leave. Peti-tioner contends that these requirements were overly erroneous.

As a result of the denial of scheduling accommo-dations, Petitioner was in fact forced to expend all of her protected FMLA leave. Her termination resulted when she ran out of leave time. Had she been allowed the flexible schedule she requested, she could have continued to work full time and use significantly less FMLA time, thus saving her job.

The district court and the Eleventh Circuit U.S. Court of Appeals held that, as a matter of law, an em-ployer is not required by FMLA to make reasonable ac-commodations to assist an employee to prevent the

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expending of her FMLA leave. Both Courts also held that the reporting requirements faced by Petitioner were de minimus and therefore could not state a claim for interference.

The Eleventh Circuit’s decision is based on an er-roneous interpretation of this Court’s jurisprudence regarding statutory construction. There will be cases, like this one, where a degree of reasonable accommo-dation is necessary to allow the FMLA to carry out its purpose of ensuring that employees do not lose their job because of an illness. If left to stand, the statutory purpose of the FMLA will be frustrated and its protec-tions degraded for all Americans. Therefore, Petitioner seeks review by this Court.

II. FACTS

Petitioner was a Manager of Research Projects in the Renal Division of the Emory University School of Medicine. (Deposition of Yoosun Han (“Han Dep.”) p. 32). She reported to Dr. Arlene Chapman, Professor of Medicine. (Han Dep. p. 32; Chapman Dep. p. 8). In the course of her duties, she regularly worked very late in the evening. (Chapman Dep. p. 40; Han Dep. pp. 122, 150-51, 221). In 2010, Dr. Chapman rated Petitioner’s overall performance as “exceptional” in her employee evaluation. (Chapman Dep. pp. 91-92; Chapman Dep. Ex. 4). In 2011, Dr. Chapman again gave Petitioner an overall rating of “exceptional.” (Chapman Dep. pp. 91-92; Chapman Dep. Ex. 5). In 2012, the first year Petitioner was in the position of Manager of Research

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Projects, Dr. Chapman gave her an overall rating of “commendable.” (Chapman Dep. p. 125; Chapman Dep. Ex. 13).

Beginning in December 2012, Petitioner was forced to miss work and take sick leave due to a severe medical condition. (Han Dep. pp. 79-81). She continued to miss work for the same reason in January of 2013. (Id.). Around the same time, despite the fact that Peti-tioner had been working, on her own accord, a flexible schedule allowing her to arrive later in the morning and work late into the night, Dr. Chapman began re-fusing to allow Petitioner to work after 6:00 pm. (Han Dep. pp. 150-51, 221; Han Dep. Ex. 14). Dr. Chapman informed Petitioner that she could no longer work after 6:00 p.m. because in January 2013 Petitioner had been found by a coworker at her work station in the evening and the coworker thought that Petitioner looked ill and told her to go home. (Id.). Petitioner told Dr. Chapman there was no reason she should not be allowed to work in the evening and repeatedly requested to be allowed to work on a flexible basis as previously allowed. (Han Dep. pp. 86-87; Han Decl. ¶ 5).

In late February 2013, Petitioner met with Renal Division administrator Marcus Urquiaga and Human Resources representative Renee Hawes to discuss her medical needs. (Han Dep. pp. 87-88; Declaration of Yoosun Han (“Han Decl.”) ¶ 5). Petitioner requested to be allowed to revert to the flexible schedule she had previously been allowed to work so that she could make time for appointments with her doctor. (Han Decl. ¶ 5; Han Dep. p. 86). Mr. Urquiaga refused to

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allow this and told Plaintiff she could work from 8:00 am to 4:00 pm and that she could schedule visits with her doctor for the late afternoon. (Han Decl. ¶ 5; Han Dep. pp. 87-88).

While Petitioner had to take sick days with rela-tive frequency, Petitioner was at all times able to per-form her job duties and complete all assignments given to her. (Han Dep. pp. 91-93, 222-24).

Petitioner had great trepidation about disclosing her medical condition to Dr. Chapman or others in the department. (Han Dep. pp. 94-99). Petitioner had infor-mation that Dr. Chapman had spoken openly about the private health information of prominent individuals in the Atlanta area, Dr. Chapman had peppered Pe- titioner with questions about her medical condition despite Petitioner making clear that she would not dis-cuss it, and a coworker had informed Petitioner that the coworker had seen Petitioner’s confidential medi-cal records in the work area. (Han Dep. pp. 94-99; Han Decl. ¶ 4).

At the end of April 2013, Petitioner requested FMLA leave, which was granted. (Han Dep. pp. 125-29). The certification explained that Petitioner could have frequent flare-ups of her condition each of which would last approximately 2-3 days. (Han Dep. p. 129; Han Dep. Ex. 15). The certification also stated that telecommuting or a flexible work schedule, especially in the morning hours, was recommended. (Han Dep. p. 129; Han Dep. Ex. 15). Around this time, Dr. Chap-man changed Petitioner’s job assignments so that

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she was primarily performing data entry and other administrative tasks; this was in spite of the fact that Petitioner was able to perform all of her job duties. (Han Dep. p. 224).

On May 12, 2013, Petitioner was involved in a se-rious car accident in which another driver rear-ended her vehicle. (Han Decl. ¶ 6). Petitioner suffered severe injuries to her neck, back, and shoulders, requiring her to visit doctors on a weekly basis for treatment. (Han Decl. ¶ 6). Pain from her injuries and the need to see her physicians caused Petitioner to take additional FMLA leave in the following months. (Han Decl. ¶ 6).

Despite her injuries, in May and June 2013, Peti-tioner did her utmost to work her scheduled hours from 8:00 to 4:00 due to pressure from Emory to main-tain those hours and Emory’s refusal to allow Plaintiff a more flexible schedule. (Han Decl. ¶ 7). Because of this, Petitioner was unable to take all the FMLA she needed and desired, and which caused her medical con-ditions to worsen. (Han Decl. ¶ 7; Han Dep. pp. 122, 255). Throughout the remainder of her employment, Petitioner continued to request to be allowed to return to the flexible work schedule that she had been allowed for the preceding six years; these requests were re-fused. (Han Decl. ¶¶ 5, 8-9; Han Dep. pp. 86, 221).

In June and July 2013, Petitioner’s medical condi-tions continued to necessitate that she miss work, and in those months she exhausted her paid medical leave. As such, Petitioner’s FMLA leave became unpaid for those months. (Han Dep. pp. 165-66).

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Throughout the time Petitioner was taking in- termittent FMLA leave, Dr. Chapman was aware of the work she was completing because Dr. Chapman would give her discrete assignments which she would promptly complete. (Han Decl. ¶ 12). Petitioner always reported to Dr. Chapman when an assignment was complete, and Dr. Chapman knew Petitioner to be reli-able in completing her work. (Han Decl. ¶ 12).

For the remainder of her employment following the month of July, all of Petitioner’s FMLA leave was paid because Petitioner had enough available sick days and vacation time. (Han Dep. pp. 232-33). As of August 29, 2013, Petitioner had 123.35 hours of her twelve month FMLA allotment remaining. (Chapman Dep. pp. 99-100; Chapman Dep. Ex. 7).

Petitioner’s medical conditions continued to make her unable to work all her hours between the Emory mandated hours of 8:00 am to 4:00 pm. Petitioner con-tinued to request that she be allowed to return to her previous flexible schedule because if she could work in the evening she could complete more work. (Han Decl. ¶¶ 5, 8-9; Han Dep. pp. 86, 221). Petitioner’s requests were refused. (Han Dep. Exs. 17, 27).

On October 24, 2013, Petitioner’s employment was terminated. Dr. Chapman stated, “The reason she was terminated was that she did not comply with the re-quest to be at work during the time frame she was given.” (Chapman Dep. p. 59).

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III. PROCEEDINGS BELOW

Han filed suit under FMLA in the United States District Court for the Northern District of Georgia, against Emory University. The complaint alleged that Emory had interfered with her rights to take protected FMLA leave by, inter alia, denying her reasonable scheduling accommodations and imposing overly erro-neous leave reporting requirements. The complaint also alleged that Emory retaliated against Petitioner by terminating her employment.

Emory moved for summary judgment, and the dis-trict court granted the motion. The district court held that “there is no accommodation requirement under the FMLA” and therefore Petitioner had no claim for interference based on Emory’s refusal to allow her to work flexible hours to avoid expending her FMLA leave. (App. 26-App. 27). The district court further held that the leave reporting requirements imposed upon Petitioner did not violate FMLA because Petitioner “[could] not show the updates and reports discouraged her from taking leave.” (App. 30).

The Eleventh Circuit affirmed. It held, with re-spect to the “reasonable accommodation” argument, that “FMLA requires no such accommodation from em-ployers.” (App. 6). With respect to the reporting re-quirements, the Court of Appeals held that Emory’s reporting requirements were “de minimus” and that no reasonable jury could determine that they interfered with Petitioner’s FMLA rights. (App. 7).

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REASONS FOR GRANTING THE WRIT

I. THIS COURT HAS NOT RULED ON THE IS-SUE OF WHETHER FMLA MAY REQUIRE REASONABLE ACCOMMODATIONS TO AN ILL EMPLOYEE UNDER APPROPRIATE CIRCUMSTANCES, LEAVING THE LOWER COURTS WITHOUT CLEAR PRECEDENT.

In the underlying litigation, Petitioner contended that Emory interfered with her right to protected FMLA leave by, inter alia, refusing her reasonable scheduling modifications that would prevent her from having to “burn through” her FMLA leave. She testi-fied that she was available to work a full-time schedule for Emory, without expending leave, if she was permit-ted to work flexible hours that would allow her to ar-rive later in the day and work later into the evening. It was Emory’s refusal to allow this flexible work sched-ule that forced her to use FMLA-protected leave when she was absent for hours she was unable to work due to her illness.

However, both the district court and the Eleventh Circuit rejected this theory of interference, “because the FMLA requires no such accommodation from employers.” (App. 6). The Court of Appeals relied on language in the FMLA’s implementing regulations stating that the ADA’s “reasonable accommodation” requirement is “wholly distinct” from the FMLA’s leave requirements. (Id., citing 29 C.F.R. § 825.702(a)).

This Court has never addressed the question whether, in appropriate circumstances, FMLA may

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require an employer to make reasonable accommoda-tions to ensure that the FMLA’s purposes are not thwarted. In the absence of such guidance from this Court, numerous Circuit Courts of Appeals have re-jected any reasonable accommodation element to FMLA. See Gilliard v. Ga. Dep’t of Corr., 500 F. App’x 860, 865 (11th Cir. 2012) (rejecting a “reasonable accom- modation” requirement under FMLA, holding “[t]o the extent that [the employee] argues that the failure to provide her with extended leave at the conclusion of her FMLA leave denied her of a reasonable accommo-dation, the reasonable-accommodation requirement under the ADA is distinct from [an] FMLA interference claim”); Battle v. United Parcel Serv., Inc., 438 F.3d 856, 865 (8th Cir. 2006) (“the FMLA omits any requirement that employers seek to reasonably accommodate em-ployees who cannot perform the essential function of their respective positions”); Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 2012) (“[t]he FMLA does not require ‘an employer to provide a reasonable accommodation to an employee to facilitate his return to the same or equivalent position at the conclusion of his [FMLA] medical leave”); Tardie v. Rehab. Hosp. of Rhode Island, 168 F.3d 538, 544 (1st Cir. 1999) (“it is not at all clear that the concept of ‘reasonable accom-modation’ is applicable in the FMLA context,” because “[u]nlike the ADA, . . . [the FMLA] omits the qualifying ‘with or without reasonable accommodation’ lan-guage.”).

This jurisprudence by the Courts of Appeals has resulted in a legal landscape that thwarts the purpose

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of FMLA. It creates a situation where an employer can require its employee to “burn through” her FMLA leave by refusing to make reasonable adjustments to the em-ployee’s schedule in circumstances where the very ill-ness for which the employee is seeking protected leave is also the illness that requires scheduling adjust-ments.

In enacting FMLA, Congress announced a broad set of purposes that, reasonably construed, imply that an employer bears certain responsibilities to offer rea-sonable accommodations to employees, where such ac-commodations are necessary to allow the employee to benefit from FMLA’s leave requirements, to wit:

(a) Findings

Congress finds that – [ . . . ]

(3) the lack of employment policies to accommodate working parents can force indi-viduals to choose between job security and parenting;

(4) there is inadequate job security for employees who have serious health conditions that prevent them from working for tempo-rary periods;

[ . . . ]

(b) Purposes

It is the purpose of this Act –

(2) to entitle employees to take reason-able leave for medical reasons, for the birth or adoption of a child, and for the care of a child,

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spouse, or parent who has a serious health condition; [. . . .]

29 U.S.C. § 2601.

In other contexts, this Court has held that a broadly stated purpose such as the one in the FMLA requires a flexible statutory construction. For example, the broad language of Title VII’s anti-retaliation provi-sions require a statutory construction that “prohibits any employer action that ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 174, 131 S. Ct. 863, 868, 178 L. Ed. 2d 694 (2011), citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345 (2006). The question in Thompson was whether Title VII’s anti-retaliation provisions would provide a cause of action to a third party who suffers retaliation for an employee’s protected conduct. Thompson, 562 U.S. at 174. This Court held that, even though a strict con-struction of the statute would limit its application to claims for adverse employment actions brought against the employee who had engaged in protected conduct, the broad language of the statute implied a cause of action for any retaliatory action, even if the complaining employee was not the direct victim. Id.

Numerous courts have found that the broad pur-poses of FMLA require a broad construction similar to the Court’s construction of Title VII’s anti-retaliation provisions. In Kastor v. Cash Exp. of Tennessee, LLC, 77 F. Supp. 3d 605, 610 (W.D. Ky. 2015), a district court

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recently held that, in order to carry out FMLA’s broad purpose that employees not be dissuaded from seeking protected leave, a right of action by a third party who suffers retaliation as a result of said protected conduct must be implied.

In Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1, 10 (1st Cir. 1998), the First Circuit held that the De-partment of Labor’s regulations, which defined pro-tected “employees” to include “prospective employees” was reasonable in light of Congress’ broad purposes in enacting FMLA, even though that definition conflicted with the “plain meaning” of that term in the statute.

Similarly, this Court has held, in numerous con-texts, that an implied right of action exists where it is necessary to carry out a statute’s purpose. For exam-ple, in the context of Title IX, this Court held that a private right of action existed under Title IX for stu-dents who are the victims of sex discrimination in uni-versity admissions because it is “necessary or at least helpful to the accomplishment of the statutory pur-pose, [so] the Court is decidedly receptive to its impli-cation under the statute.” Cannon v. Univ. of Chicago, 441 U.S. 677, 703, 99 S. Ct. 1946, 1961, 60 L. Ed. 2d 560 (1979). And in Wyandotte Transp. Co. v. United States, 389 U.S. 191, 201, 88 S. Ct. 379, 385, 19 L. Ed. 2d 407 (1967), this Court held that the Rivers and Harbors Act of 1899, which makes it unlawful for a party to negli-gently sink a vessel, but which did not explicitly create a private right of action against said party, must be im-plied to create such an action in order to carry out the Act’s statutory purpose.

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As the instant case illustrates, a right of action based on the denial of reasonable scheduling accommo-dations is necessary to carry out FMLA’s statutory purpose. Here, the employer’s denial of Petitioner’s flexible scheduling request forced her to expend her protected FMLA leave time, leaving her with none and resulting in her termination. When the employer can, without disrupting its business, take reasonable steps to prevent an employee from “burning through” their FMLA leave, the statute should require them to do so. Otherwise, an employer can force an employee to ex-pend their leave, thereby allowing termination, even though the employee could have preserved their pro-tected leave with reasonable scheduling accommoda-tions. That frustrates the broad protective purposes of FMLA.

True, the regulations state that the FMLA’s leave requirements are distinct from the ADA’s reasonable accommodations requirement. However, the plain text of the regulations show that they are meant not to re-strict an FMLA plaintiff, but rather to prevent the use of FMLA to restrict rights under the ADA. The perti-nent regulations read:

Thus, the leave provisions of the [FMLA] are wholly distinct from the reasonable accommo-dation obligations of employers covered under the [ADA . . . ]. The purpose of the FMLA is to make leave available to eligible employees and employers within its coverage, and not to limit already existing rights and protection. S. Rep. No. 103-3, at 38 (1993). An employer

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must therefore provide leave under whichever statutory provision provides the greater rights to employees.

29 C.F.R. § 825.702(a) (quoting legislative history) (em-phasis added).

The Respondent, and the courts below, used this language to restrict Petitioner’s rights under FMLA; yet, the regulation clearly contemplates the opposite, that FMLA not be used to restrict an employee’s rights.

What Petitioner is here requesting is not a general rule that reasonable accommodations, co-extensive with the ADA, are required by FMLA. Rather, Peti-tioner simply seeks a statutory construction that does not categorically exclude a claim for FMLA interfer-ence based on an employer’s refusal to offer reasonable scheduling accommodations that are necessary for an employee to enjoy the benefits of protected leave under FMLA.

Therefore, this Court should grant the petition in order to allow Petitioner to fully pursue this position.

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II. THE ELEVENTH CIRCUIT’S ORDER WATERS DOWN THE LEGISLATIVE PURPOSE OF THE FMLA WITH A PER SE RULE BAR-RING A JURY FROM DETERMINING THAT OVERLY ONEROUS LEAVE REPORTING REQUIREMENTS INTERFERE WITH AN EMPLOYEE’S FMLA RIGHTS.

The FMLA prohibits an employer from interfering with or restraining an employee from exercising, or attempting to exercise, their FMLA rights. “Inter- ference” includes both “refusing to authorize FMLA leave, [as well as] discouraging an employee from us-ing such leave.” 29 C.F.R. § 825.220(b) (2010); see Stallings v. Hussmann Corp., 447 F.3d 1041, 1050-51 (8th Cir. 2006). However, in contrast to a FMLA dis-crimination claim, the employer’s intent is immaterial to establishing an interference claim. Id. Therefore, to state an FMLA interference claim, an employee must show that due to an intentional act of her employer, she was denied her entitlements under the FMLA, or, that an employer did not respect her FMLA entitle-ments. Bell v. Dallas Cty., 432 F. App’x 330, 334 (5th Cir. 2011).

Here, there is ample evidence that Emory simply did not respect Petitioner’s FMLA entitlements, and burdened her with onerous reporting requirements that interfered with her approved FMLA leave. In dis-cussing Petitioner’s interference claim, the Eleventh Circuit makes the sweeping generalization that “no reasonable jury could conclude that Emory’s de mini-mis reporting requirements arose to interference.”

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(App. 7). However, the Court’s conclusory characteriza-tion of Emory’s reporting requirements as “de mini-mis” is not supported by any discussion of the relevant case law, and serves to remove that very fact-specific determination from the province of the jury.

In the FMLA interference context, when con- sidering employers’ motions for summary judgment, courts have regularly drawn a distinction between em-ployees receiving non-disruptive communications and requests such as short phone calls or requests for in-formation about an employee’s health status, and re-quirements that an employee complete work-related tasks or produce work product. Compare O’Donnell v. Passport Health Commc’ns, Inc., 561 F. App’x 212, 216-18 (3d Cir. 2014) (affirming summary judgment on in-terference claim because e-mails requesting paper-work were “de minimis” and “did not require O’Donnell to perform work to benefit the company and did not materially interfere with her leave”), Sabourin v. Univ. of Utah, 676 F.3d 950, 961 (10th Cir. 2012) (requests that employee return equipment and data deemed “de minimis”), Callison v. City of Phila., 430 F.3d 117, 121 (3d Cir. 2005) (same where employer enforced abuse-of-sick-leave policy by visiting employee’s home), and Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 535-37 (S.D.N.Y. 2009) (granting summary judgment where employee merely fielded brief telephone calls as a “professional courtesy” and did not “produce any work product” or “complete any assignments during her leave”), with Smith-Schrenk v. Genon Energy Servs., L.L.C., No. CIV.A. H-13-2902, 2015 WL 150727, at *10

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(S.D. Tex. Jan. 12, 2015) (denying summary judgment where employer “continued assigning [employee] work” during FMLA leave), Franks v. Indian Rivers Mental Health Ctr., No. 7:08-cv-1035-slb, 2012 WL 4736444, at *16-17 (N.D. Ala. Sept. 30, 2012) (same where fact issue remained whether employer “ask[ed] or require[d Franks] to perform work-related tasks during her FMLA leave period”), and McConnell v. Swifty Transp., Inc., No. 2:04-cv-0153, 2005 WL 1865386, at *7-8 (S.D. Ohio July 29, 2005) (same where employer called to ask employee to perform work-re-lated tasks and twice visited employee).

Here, a jury certainly could conclude that Emory’s requests for progress reports and requirements that Petitioner manually track her FMLA hours was official action that deterred her from taking needed FMLA leave.

In fact, courts have decided time and time again, in the First Amendment context, that the question of whether a particular action is truly “de minimis” should be a determination left to the jury. See Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002) (“[w]hether a retaliatory action is sufficiently severe to deter a per-son of ordinary firmness from exercising his or her rights is a question of fact.”); see also Davidson v. Chestnut, 193 F.3d 144, 150 (2d Cir. 1999) (noting that question of whether one-day denial of inmate’s exer-cise opportunities was de minimis “factual in nature”); Stotts v. Pierson, 976 F. Supp. 2d 948, 968-69 (S.D. Ohio 2013) (whether delays and refusals to grant Use Per-mit Applications would deter a person of ordinary

19

firmness from establishing an adult entertainment es-tablishment was a disputed question of material fact for the jury’s consideration).

Accordingly, both the District Court and the Elev-enth Circuit erred in dismissing Petitioner’s interfer-ence claim, and this Court should grant the petition to prevent a miscarriage of justice.

--------------------------------- ---------------------------------

CONCLUSION

For the foregoing reasons, this Court should grant the petition for a writ of certiorari.

Respectfully submitted,

JAMES RADFORD 315 W. Ponce de Leon Ave. Suite 1080 Decatur, Georgia 30030 james@decaturlegal.com (678) 271-0302

Counsel for Petitioner

December 28, 2016

App. 1

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-14858 Non-Argument Calendar

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D.C. Docket No. 1:14-cv-02069-MHC

YOOSUN HAN,

Plaintiff-Appellant,

versus

EMORY UNIVERSITY,

Defendant-Appellee.

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Appeal from the United States District Court for the Northern District of Georgia

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(September 29, 2016)

Before WILSON, JORDAN, and JULIE CARNES, Cir-cuit Judges.

PER CURIAM:

Yoosun Han, a former employee of Emory Univer-sity (Emory), appeals the district court’s grant of sum-mary judgment to Emory, in her suit brought under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2617. On appeal, Han argues that the district court

App. 2

erred in granting summary judgment on her FMLA in-terference and retaliation claims. We affirm.

I.

Han formerly worked as a Manager of Research Projects in Emory’s Department of Medicine. She al-leges that, during her time in the Department of Med-icine, Emory interfered with the exercise of her FMLA rights and retaliated against her for exercising those rights. Han’s claims stem from her period of employ-ment from late 2012 to October 2013. Following the worsening of her medical condition during January 2013, which prevented her from working during the morning hours, Han began requesting a flexible work schedule. Although encouraged by her employers, she declined to apply for FMLA leave until April 2013, in-stead using sick leave and accrued time off. Han re-peatedly requested accommodated work hours, but her employer continued to refuse her request for later hours and repeatedly instructed her to not work past 6 p.m. Additionally, Emory required Han to report her FMLA leave hours and to provide weekly progress re-ports on her work completed when she was not on leave. In October 2013, Emory terminated Han’s em-ployment.

Thereafter, Han filed her FMLA claims in district court, alleging both that Emory’s actions leading up to her termination constituted interference, and her Oc-tober 2013 termination constituted retaliation. Emory filed a motion for summary judgment. The district

App. 3

court found that Han’s allegations of interference were unfounded, citing the lack of evidence that she was pressured to forego leave or that her FMLA leave was otherwise interfered with in any way.

As to Han’s retaliation claims, the district court determined that Emory provided legitimate, non- retaliatory reasons for firing Han, including: (1) Han failed to follow policies and instructions when she re-fused to work within the daytime schedule assigned to her; (2) Han refused to report her FMLA leave as in-structed; and (3) Han refused to notify Emory of her absences and late arrivals, as requested. Han conceded that she disregarded explicit instructions to not work after hours, and continued to report her FMLA leave in the regular leave system. She also conceded that be-ginning in mid-August 2013 she stopped reporting her FMLA leave as instructed. Furthermore, Han acknowl-edged that she stopped reporting her late arrivals, de-termining on her own that it was unnecessary to keep reporting when they became frequent. Han was re-peatedly instructed on Emory’s policies and given sev-eral warnings in regards to her failure to follow explicit instructions, but she refused to alter her behavior. As Han conceded her behavior, the district court con-cluded that she could not show that Emory’s reasons were pretextual. Therefore, the district court granted summary judgment to Emory.

App. 4

II.

We review a district court’s entry of summary judgment de novo. Jones v. UPS Ground Freight, 683 F.3d 1283, 1291 (11th Cir. 2012). Summary judgment should be granted if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party “bears the initial responsibility of identifying th[e] portions of the plead-ings, depositions, answers to interrogatories, and ad-missions 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, 2553(1986) (internal quota-tion marks omitted). The burden then “shifts to the non-moving party to rebut that showing by producing affidavits or other relevant and admissible evidence beyond the pleadings.” Josendis v. Wall to Wall Resi-dence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011). A “mere scintilla of evidence” is not enough for the non-moving party to overcome a motion for sum-mary judgment. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).

Both of Han’s claims arise under the FMLA, which provides that eligible employees are entitled to up to 12 work weeks of unpaid leave during any 12-month period for “a serious health condition that makes the employee unable to perform the functions of the posi-tion of such employee.” 29 U.S.C. § 2612(a)(1)(D). “[T]he FMLA creates two types of claims: interference

App. 5

claims, in which an employee asserts that [her] em-ployer denied or otherwise interfered with [her] sub-stantive rights under the Act, and retaliation claims, in which an employee asserts that [her] employer dis-criminated against [her] because [s]he engaged in ac-tivity protected by the Act.” Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001) (citations omitted). We will address each claim in turn.

III.

A. Interference

The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of[,] or the attempt to exercise, any” FMLA right. 29 U.S.C. § 2615(a)(1). An FMLA interference claim requires the plaintiff to show that she was entitled to a benefit de-nied by the defendant. Strickland, 239 F.3d at 1206-07.

Han claims that Emory interfered with her rights under the FMLA because: (1) Emory reduced her pay more than necessary according to the FMLA leave she took; (2) Emory denied her request for accommodated hours; (3) Emory required her to submit status reports on her work; and (4) Emory fired her while she had FMLA leave remaining. However, none of these argu-ments are availing. The district court did not err in granting Emory summary judgment on Han’s interfer-ence claims.

App. 6

First, Han has not provided any evidence beyond her own assertions that her pay was improperly re-duced. While the court “must draw all reasonable in-ferences from the evidence in favor of [the plaintiff ], it is unreasonable to infer from [the plaintiff ’s] specula-tive testimony alone.” Brown v. Snow, 440 F.3d 1259, 1266 (11th Cir. 2006). Moreover, even assuming that Emory improperly reduced some of Han’s pay, she was not prejudiced and thus, would not be entitled to relief. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S. Ct. 1155, 1161 (2002) (establishing prejudice requirement for interference claim). Emory required Han to track and report her FMLA hours. By Han’s own admission, she did not report her leave for two and a half months in order to avoid salary reductions. Thus, she was actually overpaid and has not established prejudice for a successful interference claim.

Furthermore, Han spends considerable time reit-erating that Emory failed to accommodate her re-quests to arrive and stay at work late, so that she did not have to use her FMLA hours. The district court was correct to deny this interference claim because the FMLA requires no such accommodation from employ-ers. The FMLA leave provisions are “wholly distinct” from the reasonable accommodation employers are ob-ligated to provide under the Americans with Disabili-ties Act (ADA). See 29 C.F.R. § 825.702(a). As Han’s claims were brought under the FMLA and not the ADA, she has no claim for reasonable accommodations from Emory.

App. 7

As for Han’s claim that the requirement of pro-gress reports and manual tracking of FMLA hours was harassment that deterred her from taking needed FMLA leave, the district court was correct to grant summary judgment. A review of the record shows that the progress reports were simply an effort to increase communication on work when Han was not on leave. Furthermore, the FMLA regulations themselves imply the reasonableness of reporting requirements. They expressly state that “[a]n employer may require an em-ployee on FMLA leave to report periodically on the em-ployee’s status and intent to return to work.” See 29 C.F.R. § 825.311(a). Based on the record before us, even taking the evidence in the light most favorable to Han, no reasonable jury could conclude that Emory’s de minimis reporting requirements arose to interference.

Finally, Han’s claim that her termination consti-tutes interference also fails. There is nothing in the FMLA that prevents an employer from terminating an employee who still has leave. The FMLA states that an employee has the right following FMLA leave to be re-stored to their position prior to leave. 29 U.S.C. § 2614(a)(1)(A). And it allows an employer to “deny re-instatement following FMLA leave if [the employer] can demonstrate that it would have discharged the em-ployee even if [s]he had not been on FMLA leave. Jar-vela v. Crete Carrier Corp., 776 F.3d 822, 831 (11th Cir. 2015). As Emory’s reasons for terminating Han were unrelated to her leave, her claim that the termination constituted interference is unfounded and not sup-ported by law.

App. 8

For these reasons, the district court’s grant of sum-mary judgment on all Han’s interference claims was appropriate.

B. Retaliation

The district court also did not err in granting Emory summary judgment on Han’s retaliation claim. To establish an FMLA retaliation claim, an employee must show that her employer intentionally discrimi-nated against her for exercising a right guaranteed by the FMLA. Strickland, 239 F.3d at 1206. The standard is more difficult than an interference claim, and the employee must show through direct or circumstantial evidence that her employer’s actions were “motivated by an impermissible retaliatory or discriminatory ani-mus.” Id. at 1207. Direct evidence is evidence that “re-flects a . . . retaliatory attitude correlating to the . . . retaliation complained of by the employee” without need of inference. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (internal quotation marks omitted).

Without direct evidence of the employer’s retalia-tory intent, we apply the burden-shifting framework established by the Supreme Court in McDonnell Doug-las Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Strickland, 239 F.3d at 1207. To prove a retaliation claim under this framework, the employee must show that: (1) she engaged in statutorily protected activity; (2) she experienced an adverse employment action; and (3) there is a causal connection between the protected

App. 9

activity and the adverse action. Id. If the employee makes such a prima facie case, the burden then shifts to the employer to articulate a legitimate reason for the adverse action. McDonnell Douglas Corp., 411 U.S. at 802. If the employer does so, the employee must then show that the employer’s reason for the adverse action is pretextual. Id. at 804. Pretext is proven if it is shown that the reason was false and that the action was ac-tually motivated by retaliation. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993).

Han has not shown direct evidence that she was fired because she took FMLA leave. Despite Han’s as-sertions, when read in context, her supervisor’s depo-sition statements do not show any direct evidence of retaliation, as they lack any reflection of a retaliatory attitude or discriminatory animus. The statements Han alleges show direct evidence regarding the termi-nation make it clear that Han was not fired for taking FMLA leave, but for repeated acts of insubordination.

Therefore, we apply the McDonnell Douglas framework. Han has not met her burden under McDonnell Douglas. While she did demonstrate that she suffered an adverse employment action (her termi-nation), and it did occur in temporal proximity to her protected activity of taking FMLA leave, Emory pro-vided legitimate reasons (insubordination) for the ter-mination.

Han has failed to demonstrate a triable issue ex-ists as to whether those reasons are pretext. Han ad-mits her refusal to report her FMLA hours starting in

App. 10

mid-August and refusal to report her tardiness to work, in contravention of explicit repeated instruc-tions. She received repeated warnings and ignored all requests to improve her performance, deciding for her-self that Emory’s reporting policies were unnecessary. While Han made known to her supervisor that she dis-agreed with Emory’s policies in regards to late hours, reporting hours and late arrivals, a party cannot show pretext “by simply quarreling with the wisdom of [the employer’s given] reason.” Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000). In fact, “[t]he heart of the pretext inquiry is not whether the em-ployee agrees with the reasons that the employer gives for the discharge, but whether the employer really was motivated by those reasons.” Standard v. A.B.E.L. Serv., Inc., 161 F.3d 1318, 1333 (11th Cir. 1998). Based on the record, a triable issue of pretext does not exist. An employee “cannot show that the reasons . . . are pretextual when [s]he admits their truth,” Id., and Han has admitted to the insubordination that Emory cites as the reason for her termination.

Accordingly, the district court did not err in grant-ing summary judgment on Han’s retaliation claim.

AFFIRMED.

App. 11

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION YOOSUN HAN,

Plaintiff,

v.

EMORY UNIVERSITY,

Defendant.

CIVIL ACTION FILE

NO. 1:14-CV-2069-MHC

ORDER

(Filed Sep. 28, 2015)

This case comes before the Court on Defendant Emory University’s (“Defendant” or “Emory”) Motion for Summary Judgment [Doc. 22].

I. BACKGROUND

Plaintiff Yoosun Han (“Plaintiff ”) was a Manager of Research Projects in the Nephrology Division of the Emory University School of Medicine; beginning in September 2006, she reported to Dr. Arlene Chapman (“Chapman”), Professor of Medicine.1 Def.’s SUMF ¶ 1.

1 At the outset, the Court notes that it views the evidence presented by the parties in the light most favorable to the non-movant. Matshushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Sunbeam TV Corp. v. Nielsen Media Re-search, Inc., 711 F.3d 1264, 1270 (11th Cir. 2013). In addition, the Court has excluded assertions of facts by either party that are immaterial or presented as arguments or legal conclusions or any fact not supported by citation to evidence (including page or par-agraph number). LR 56.1B(1), NDGa. Further, the Court accepts

App. 12

Plaintiff was a salaried employee, exempt from over-time requirements, and was not permitted to take pa-tient information outside of Emory’s facility. Id. ¶¶ 5, 8. Many studies in which Plaintiff participated re-quired that data be collected at specific hours during the day; relevant patient visits almost always occurred between 8:00 AM and 6:00 PM. Id. ¶ 11.

In January 2013, Plaintiff ’s (unspecified) medical condition grew more severe, causing her to miss sev-eral consecutive days of work. Id. ¶ 17. Plaintiff alleges she had difficulty coming to work in the mornings be-cause of her chronic medical condition and needing time to take her medicine; she also states she had dif-ficulty sleeping, leaving her tired. Id. ¶ 18. Plaintiff met with Jeanne Thigpen (“Thigpen”), Director of Hu-man Resources, and informed her that she would need to be absent on occasion due to a medical condition, the nature of which she did not disclose. Id. ¶ 19. Thigpen explained to and discussed with Plaintiff various op-tions, including Family and Medical Leave Act (“FMLA”) leave, Emory’s sick-leave policy with modifications, or floating holidays and vacations. Id. ¶¶ 20-21. Because Plaintiff ’s doctor released her to return to work, and Plaintiff believed her illness was not serious enough to warrant FMLA leave, she believed the best solution would be floating holidays and vacation. Id. ¶ 22. On

as admitted those facts in the moving party’s statement that have not been specifically controverted with citation to the relevant portions of the record by the opposing party. LR 56.1B(2), NDGa. See Def.’s Statement of Undisputed Material Facts [Doc. 22-2] (“Def.’s SUMF”); Pl.’s Resp. to Def.’s SUMF [Doc. 27].

App. 13

January 28, 2013, while absent, Plaintiff emailed Chapman that she would like to return to work in a week and would be using floating holidays and vaca-tions for her absences related to Plaintiff ’s unspecified medical condition. Id. ¶ 23.

Under Emory’s Sick Leave Policy for Monthly Em-ployees, an employee must use accrued sick leave when unable to perform job duties due to illness, or when a medical appointment cannot reasonably be scheduled during non-work hours; when an employee is unable to report for work, she must notify her supervisor as soon as possible, or no later than the beginning of the work schedule on the first day of absences, and on succeed-ing days. Id. ¶ 24. Sick leave is not calculated hourly, but is entered in either four- or eight-hour blocks. Id. ¶ 25. Thus, if an employee works more than four hours, she gets credit for an entire day of work. Id. If the em-ployee works two hours, her sick leave balance will only be charged four hours. Id. ¶ 26. If the employee takes an entire day off, her balance will be charged eight hours. Id.

Emory’s FMLA Policy allows eligible employees up to twelve weeks of unpaid, job-protected leave in a roll-ing twelve-month period for medical reasons. Id. ¶ 8. Employees may take FMLA leave intermittently (in brief blocks of time), provided they “try to schedule their leave so that it will not disrupt the department’s operations.” Id. (quoting Decl. of Marcus Urquiaga, Ex. D [Doc. 22-3]). Employees on FMLA leave must use, during unpaid leave, any applicable paid leave in ac-cordance with Emory’s sick and vacation leave policies;

App. 14

in other words, FMLA leave and sick leave run concur-rently. Id. ¶ 29. Plaintiff reviewed and was familiar with both leave policies during her leave. Id. ¶ 31.

In January 2013, Chapman believed Plaintiff to be ill at work, and advised her either to go to the employee health office or go home for the day; Plaintiff went home. Id. ¶ 32. Also in January, Marcus Urquiaga (“Ur-quiaga”), Administrator for Renal Division of the De-partment of Medicine, found Plaintiff at work after hours, and believed she was ill and weak; he advised her to go home for the evening. Id. ¶ 33.2 After these incidents, Chapman contended that it was unsafe for employees, including Plaintiff, to work after hours when the doors were locked. Id. ¶ 34. Regular office hours were clarified for all employees; they were not supposed to work significantly beyond 6:00 PM with-out permission. Id. ¶ 35.

On February 26, 2013, Plaintiff met with Urquiaga and HR representative Renee Hawes (“Hawes”), to dis-cuss some scheduling needs that had arisen due to Plaintiff ’s medical condition. Id. ¶ 36. At this time, Plaintiff still had not requested FMLA leave, and had not indicated a need to do so. Id. Plaintiff requested flexibility in her working hours, and Emory offered her the options of 9:00 AM-4:00 PM (with salary reduction) or 8:00 AM-4:00 PM (with no salary reduction); Plain-tiff chose the latter option. Id. ¶¶ 38-39.3

2 Plaintiff denies actually being ill in either of these inci-dents. Pl.’s Resp. to Def.’s SUMF ¶¶ 32-33. 3 Plaintiff argues her true desire was to come in later in the day. Pl.’s Resp. to Def.’s SUMF ¶ 37.

App. 15

On March 22, 2013, Urquiaga and Hawes met again with Plaintiff to discuss her absenteeism and performance and to reiterate that her job required her to be present and reliable. Id. ¶ 41. They explained that Plaintiff ’s attendance was unreliable, that a fun-damental requirement of her job was to be present and dependable, and that she must immediately improve in this area. Id. They reviewed Emory’s leave policies and tried to convince Plaintiff to apply for FMLA leave, explaining that FMLA absences would be protected and she would not be subject to discipline. Id. Urquiaga and Hawes also explained that they wanted to give Plaintiff options and an opportunity to improve her performance but, if her current performance contin-ued, it would lead to further discipline, up to and in-cluding termination. Id. ¶ 43.

Plaintiff refused to request FMLA leave, stating that she did not want to disclose her medical condition. Id. ¶ 44. Urquiaga and Hawes tried to explain that in-formation submitted for FMLA purposes would be con-fidential and protected by privacy laws, but Plaintiff believed Chapman would learn of her condition. Id. ¶ 45. Urquiaga and Hawes provided Plaintiff with written documentation of the meeting. Id. ¶ 48.

Eventually, Plaintiff understood she could apply for FMLA leave without disclosing the details of her medical condition. Id. ¶ 49. On or around April 30, 2013, Plaintiff requested intermittent leave under Emory’s FMLA Policy and provided a physician’s certification of the need for leave. Id. In the certification, Plaintiff ’s doctor indicated that Plaintiff could not lift more than

App. 16

three pounds, engage in continued physical activity, or be exposed to high temperatures for more than fifteen minutes. Id. ¶ 50. The doctor estimated that Plaintiff would need to attend late-afternoon doctors’ appoint-ments almost every week and that her condition would cause episodic (two-to-three-day) flare-ups approxi-mately two to three times per month. Id. ¶ 51. The doctor recommended that Plaintiff take brief fifteen-minute breaks in the morning and afternoon, and stated that “[t]elecommuting or flexible work hours are recommended, if possible, for her to be able to take the medications, especially in the morning, and eat some food[ ] every [two] hours.” Id. ¶ 52 (quoting Tr. Of Dep. of Yoosun Han taken Mar. 4, 2015 (“Han Dep.”) [Doc. 23-1] at 130 and Ex. 15).

Emory approved Plaintiff ’s request for FMLA leave. Id. ¶ 53. Consistent with its policies, Emory in-formed Plaintiff that she would be required to use paid leave concurrently with her FMLA leave until all her paid leave was exhausted. Id. In May 2013, Plaintiff only worked six full days at her schedule of 8:00 AM to 4:00 PM; all other days she was absent either a full or half day. Id. ¶ 55. In June 2013, Plaintiff only worked one full day at her set schedule; every other day she was absent for a half day or the entire day, or she had a doctor’s appointment and arrived hours late to work. Id. ¶ 56.

On June 24, 2013, Plaintiff met with Urquiaga, Chapman, and a representative from HR to discuss several concerns. Id. ¶ 58. Chapman and Urquiaga agreed to follow up with HR on Plaintiff ’s request for

App. 17

an 8:00 AM to 6:00 PM schedule and to get back to her. Id. ¶ 60.4

Plaintiff did not like reporting her FMLA hours worked and argued that it was sufficient to input her sick leave in Emory’s sick leave reporting system. Id. ¶ 61. During the June 24 meeting and on several other occasions, it was explained to Plaintiff that the online sick leave reporting system was not capable of tracking her FMLA leave properly because it only tracked sick leave in blocks of either four or eight hours and gave credit for a full day’s work as long as an employee worked more than four hours in a day. Id. ¶ 62. Pursu-ant to Emory’s FMLA leave policy, the exact number of hours taken must be tracked for FMLA leave. Id. ¶ 63.

On June 28, 2013, Plaintiff had a follow up meet-ing with Urquiaga, Thigpen, and Hawes; during the meeting, Plaintiff was notified that her request was ap-proved to work a flexible schedule between 8:00 AM and 6:00 PM to allow her the flexibility to arrive late or leave early and still work forty hours per week. Id. ¶ 66. Any further schedule modifications would re-quire Plaintiff to engage in the accommodations pro-cess through Emory’s Office of Disability Services; they encouraged Plaintiff to contact that office to discuss any further necessary accommodations. Id. ¶ 67. Plaintiff refused because she did not want to disclose her medical condition. Id. ¶ 68.

4 Plaintiff admits this was her request, but states her true preference was to be able to work late into the evening. Pl.’s Resp. to Def.’s SUMF ¶ 59.

App. 18

Plaintiff also complained that she should not have to call in each day that she was going to be absent, late, or leave early. Id. ¶ 70. She believed Emory already knew that she was going to be late most days, so she should not have to call each time. Id. However, Emory required that Plaintiff must notify Chapman and Urquiaga if she was unable to come to work or was going to leave early. Id. ¶ 71.

The day after the meeting, Plaintiff emailed Urquiaga and Thigpen: “I still feel that clock in & out is the re-taliation. It seems Jeanne [Thigpen] and I have differ-ent interpretations of FMLA guideline[s].” Id. ¶ 72 (quoting Han Dep. at 187-88 and Ex. 22). Plaintiff sent another email the next day, repeating her claims that she should not have to track her FMLA hours. Id. Thig-pen replied: “You are being asked to track FMLA hours used each day not to clock in or out” and “there should be no need for additional email messages.” Id. ¶ 73 (quoting Han Dep. at 187 and Ex. 22). On July 2, Plain-tiff was provided with a written memorandum reflect-ing the items discussed during the June 28 meeting; she initially signed the memorandum, but later re-turned to Urquiaga’s desk and ripped it up because she “did not agree” with it. Id. ¶ 74 (quoting Han Dep. at 182 and Ex. 20).

In July 2013, Plaintiff was absent for all but four days and exhausted her remaining paid leave. Id. ¶ 75. Thus, her FMLA leave was to be unpaid until she accrued additional paid sick leave or vacation (in August). Id. To give Plaintiff some work, Chapman

App. 19

temporarily assigned her duties related to data entry and other administrative tasks. Id. ¶ 77.

On or around July 24, 2013, Plaintiff met with Gloria Weaver (“Weaver”), the Director of Emory’s Of-fice of Access, Disability Services and Resources to dis-cuss the possibility of requesting an accommodation under the Americans with Disabilities Act (“ADA”). Id. ¶ 78. Weaver explained that Plaintiff potentially could receive a schedule accommodation but would need to provide specifics of her diagnosis for Emory to evaluate such a request. Id. ¶ 79. Plaintiff told Weaver that she did not want to engage in the ADA accommodation pro-cess because she refused to disclose her medical condi-tion. Id. ¶ 80.

On July 24, 2013, Plaintiff made a complaint with Emory’s Office of Equal Opportunity Programs (“EOP”) that she felt Chapman was violating Emory’s policy against discriminatory harassment. Id. ¶ 81. The EOP conducted an investigation into the evidence but found no information suggesting that Chapman was vio- lating Emory’s discriminatory harassment policy. Id. ¶ 82.

In mid-August 2013, having exhausted her paid leave, Plaintiff stopped providing Emory with the hours she worked for FMLA tracking purposes because she did not want a salary deduction. Id. ¶ 83. Despite Emory’s clear and repeated instructions, Plaintiff be-lieved it was unfair and that she should not have her salary reduced. Id. ¶ 84; Pl.’s Resp. to Def.’s SUMF ¶ 84.

App. 20

On August 29, 2013, Chapman provided Plaintiff with a letter addressing several issues with her FMLA leave, including her refusal to report her FMLA hours. Def.’s SUMF ¶ 85. Chapman noted that Plaintiff had been advised of her obligation to call in each day that she would arrive late, yet continued to disregard this requirement. Id. Chapman explained that “[a]lthough you are required to notify us only once of the need for intermittent FMLA leave and you have done so, you are still required to comply with Emory’s general call-in procedures with respect to each individual absence.” Id. ¶ 86 (quoting Han Dep. at 213-14 and Ex. 27). Chapman informed Plaintiff that she must report the hours that she works so that Emory could accurately determine the amount of time she was using for FMLA leave and that, for safety and security reasons, all em-ployees in the office were expected to leave by 6:00 PM. Id. ¶ 87. Chapman again encouraged Plaintiff to work with the Office of Access and Disability Resources to participate in the accommodations process if she needed a more significant schedule modification and advised Plaintiff that Emory provides reasonable ac-commodations to individuals with a disability with ap-propriate documentation. Id. ¶ 88. Chapman also noted that the frequency of Plaintiff ’s FMLA-related absences far exceeded the expected frequency of flare-ups predicted by Plaintiff ’s doctor. Id. ¶ 89. Thus, Chapman requested that Plaintiff submit a recertifica-tion for FMLA leave from her health care provider. Id. Plaintiff ’s written response stated that she had missed more days than originally indicated due to a car acci-dent and because her schedule was causing her health

App. 21

to worsen. Id. ¶ 90. She agreed to submit an additional FMLA medical certification. Id.

Plaintiff also refused to comply with Chapman’s instructions to report her time worked for FMLA tracking purposes. Id. ¶ 92. She claimed again that it was sufficient to submit her time through Emory’s paid leave tracking system, although it had been ex-plained to her repeatedly that the paid leave system does not track each hour worked as required by the FMLA. Id. Despite the fact that Plaintiff wanted to change her work schedule to avoid set work hours and to work whenever she felt able (mostly in the after-noons and at night), Plaintiff refused to participate in the ADA accommodation process. Id. ¶ 93. Plaintiff stated “please stop inappropriate instructions and comments. I could have spent more time in working in-stead of meeting and writing this letter. . . . No matter what you do, I will do the right thing and I will choose the best that I believe. . . .” Id. ¶ 94 (quoting Han Dep. Ex. 27). Despite Chapman’s letter, Plaintiff did not begin reporting her late arrivals, nor did she report her hours worked for FMLA leave tracking. Id. ¶ 95.

On September 16, 2013, Plaintiff received a writ-ten warning for failing to follow Emory’s policies and procedures and failing to follow standards for report-ing absences. Id. ¶ 96. The letter noted that, since the August 29 letter, Plaintiff still had not provided her hours worked for FMLA tracking purposes, despite receiving a reminder email. Id. ¶ 97. Plaintiff was warned that “[f ]ailure to comply with these numerous requests is considered insubordinate behavior,” that

App. 22

[t]here must be decided improvement in your perfor-mance,” and that “further incidents of this nature are subject to disciplinary action, up to and including ter-mination of employment.” Id. ¶ 98 (quoting Han Dep. at 229 and Ex. 29). Plaintiff submitted another written response, again stating she was not violating policies, that it was sufficient for her to submit her leave via Emory’s exempt leave system, and that she did not have to report her absences or late arrivals because she had already notified Emory of the need for intermit-tent FMLA leave. Id. ¶ 99. After receiving the written warning, Plaintiff did not submit her time worked, and did not report her absences and late arrivals. Id. ¶ 100.

On October 15, 2013, Plaintiff received a final written warning, stating that “you continue to disre-gard directives concerning departmental work hours, reporting of FMLA absences, and communicating with your manager regarding your arrival and departure times.” Id. ¶¶ 101-02 (quoting Han Dep. at 231-32 and Ex. 30). The letter further noted, “Despite giving you the flexibility of arriving to work by 10:00 am and leav-ing by 6:00 pm, you continue to work outside of these parameters,” and “there must be immediate and sus-tained improvement in your performance, to avoid further disciplinary action, up to and including termi-nation of employment.” Id. ¶ 103 (quoting Han Dep. at 232 and Ex. 30). Plaintiff again submitted a response challenging the accuracy of the final warning and re-peating the same claims made in her past letters. Id. ¶ 104.

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On October 24, 2013, Plaintiff was provided with a letter informing her that her employment was being terminated due to insubordinate behavior, refusal to follow instructions, and failure to comply with Emory’s policies and procedures. Id. ¶ 106.

II. LEGAL STANDARD

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the mo-vant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A party seeking summary judgment has the burden of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Credibility deter- minations, the weighing of the evidence, and the draw-ing of legitimate inferences from the facts are jury functions,” and cannot be made by the district court in considering whether to grant summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999).

If a movant meets its burden, the party opposing summary judgment must present evidence that shows there is a genuine issue of material fact or that the movant is not entitled to judgment as a matter of law. Celotex, 477 U.S. at 324. In determining whether a gen-uine issue of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light

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most favorable to the party opposing summary judg-ment, “and all justifiable inferences are to be drawn” in favor of that opposing party. Anderson, 477 U.S. at 255; see also Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). A fact is “material” only if it can affect the outcome of the lawsuit under the gov-erning legal principles. Anderson, 477 U.S. at 248. A factual dispute is “genuine” if the evidence would per-mit a reasonable jury to return a verdict for the non-moving party. Id.

“If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. But, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” summary judgment for the moving party is proper. Matsushita, 475 U.S. at 587.

III. DISCUSSION

Plaintiff contends that Emory violated the FMLA by failing to accommodate her request to change her work schedule from a regular, daytime schedule to a completely flexible schedule in which Plaintiff chose which hours she worked, usually at night. Compl. ¶ 10. Plaintiff also argues that Emory violated the FMLA by: (1) deducting more hours of FMLA leave than she actually took; (2) sending her home when she was able to work; (3) refusing to allow Plaintiff to work past 6:00 pm; (4) deducting from her pay; (5) requiring her to “clock in and out” of work; (6) requiring her to submit

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summaries of the work tasks she completed; and (7) terminating her employment. Id. ¶¶ 13, 20, 28.

The FMLA provides that “an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such em-ployee.” 29 U.S.C. § 2612(a)(1)(D). “To protect the avail-ability of these rights, the FMLA prohibits employers from interfering with, restraining, or denying ‘the ex-ercise of or the attempt to exercise’ any rights guaran-teed under the Act.” McCarroll v. Somerby of Mobile, LLC, 595 F. App’x 897, 900 (11th Cir. 2014) (quoting 29 U.S.C. § 2615(a)(1)).

The Eleventh Circuit has recognized two types of claims under the FMLA. First, the FMLA “protects employees against interference with the exercise or at-tempted exercise of their substantive rights under the statute.” Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1247 (11th Cir. 2015). In order to state a claim for interference, the employee must allege that she was “entitled to a benefit under the FMLA and was denied that benefit.” Id. Second, an employee may assert a claim for retaliation under the FMLA, which is an al-legation that the “employer discriminated against [the employee] because [s]he engaged in an activity pro-tected by the [FMLA].” Pereda v. Brookdale Senior Liv-ing Cmtys., Inc., 666 F.3d 1269, 1272 (11th Cir. 2012). To establish retaliation, an employee has the “in-creased burden” of demonstrating that her employer intentionally discriminated against her for exercising

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a right guaranteed under the FMLA. Martin v. Brevard Cty. Pub. Sch., 543 F.3d 1261, 1267-68 (11th Cir. 2008).

A. FMLA Interference

Plaintiff contends that Emory interfered with her FMLA rights by (1) reducing her pay in an amount greater than justified by the amount of FMLA leave she took, (2) requiring her to work certain hours in a way that discouraged her from taking all the FMLA leave she needed, (3) harassing her regarding the work she completed even though Defendant was already aware of the status of her work, and (4) terminating her employment while she was on intermittent FMLA leave. Pl.’s Resp. in Opp’n to Def.’s Mot. [Doc. 29] (“Pl.’s Resp.”) at 10.

1. Work Schedule

Plaintiff ’s complaints regarding her work sched-ule are based on the theory that the FMLA requires accommodation. However, “[s]uch a claim for relief fun-damentally misconstrues the purpose of the FMLA, which is merely to ‘entitle employees to take reason- able medical leave for medical reasons.’ ” Henry v. Fulton Cty. Bd. of Educ., No. 1:05-CV-2008 TWT, 2006 WL 2927533, at *4 (N.D. Ga. Oct. 10, 2006), aff ’d, 228 F. App’x 970 (11th Cir. 2007). “There is nothing in the language of the FMLA that compels employers to pro-vide broad based workplace accommodations to em-ployees with serious medical conditions. The only type of accommodation it provides is medical leave.” Id. at

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*4 (stating that employees do not have the right to rea-sonable accommodations under the FMLA, but may under the ADA).

Numerous courts, including the Eleventh Circuit, have held that, unlike the ADA, there is no accommo-dation requirement under the FMLA. Gilliard v. Ga. Dep’t of Corr., No. 12-11751, 2012 WL 6115913, at *2 (11th Cir. Dec. 7, 2012) (“The leave provisions of the FMLA are ‘wholly distinct from the reasonable accom-modation obligations of employers covered under the ADA’ ”) (quoting 29 C.F.R. § 825.702(a)); Battle v. United Parcel Serv., Inc., 438 F.3d 856, 864-65 (8th Cir. 2006); Brown v. Montgomery Surgical Ctr., No. 2:12-CV-553-WKW, 2013 WL 1163427, at *5 (M.D. Ala. Mar. 20, 2013); Monroe v. Sisters of Saint Francis Health Servs., Inc., No. 2:09-CV-411, 2012 WL 2849455, at *8 (N.D. Ind. July 11, 2012) (“the FMLA does not require accommodations for disabilities” and “is strictly lim-ited to providing leave in the event of a serious in-jury”).5

5 The cases on which Plaintiff relies all either support De-fendant’s position or are distinguishable. See, e.g., Mardis v. Cent. Nat. Bank & Trust of Enid, 173 F.3d 864 (10th Cir. 1999) (holding that threatening forfeiture of vacation and sick leave might con-stitute FMLA interference if it actually discouraged FMLA leave); Seguin v. Marion Cty. Health Dept., No. 5:13-CV-96-OC-10PRL, 2014 WL 3955162, at *10 (M.D. Fla. Aug. 13, 2014) (dismissing FMLA interference claim (based on frequent questioning about employee’s leave, occasional brief delays in approving leave re-quests, and occasional initial denials of leave requests that later were granted) on summary judgment where plaintiff failed to pre-sent evidence that she was denied or discouraged from exercising rights under the FMLA; instead, she was never denied an FMLA

App. 28

Plaintiff argues Defendant required her to work between 8 AM and 4 PM, and Defendant denied her request to extend her hours to 6 PM and “be returned to her previous flexible schedule.” Pl.’s Resp. at 12. Thus, according to Plaintiff, she “disregarded her phy-sician’s directive to begin work later in the day” and took less FLMA leave than she otherwise would have taken. Id. Defendant states Plaintiff ’s assertion is false, noting that Plaintiff has admitted she was sub-ject to the 6 PM closing time but allowed to leave at 4 PM for doctor’s appointments; then, she was allowed a flexible 8 AM to 6 PM schedule beginning in June 2013. Pl.’s Resp. to Def.’s SUMF ¶¶ 35, 59. In either case, Plaintiff fails to articulate how her hours interfered with her taking FLMA leave.

Defendant provided all the leave that Plaintiff re-quested. Defendant’s requirement that employees end the day when the clinic and administrative wing locked down for the evening was consistent with legit-imate safety concerns and requirements of the job of a

request); Lynch v. City of Largo, No. 8:10-CV-1064-T-33TGW, 2011 WL 4634020, at *8 (M.D. Fla. Oct. 5, 2011) (finding a genu-ine issue of material fact existed regarding whether supervisors’ “interrogations” about why an employee missed so much work and was using “so much time” were designed to discourage her from taking additional FMLA leave); Andrews v. CSX Transp., Inc., 737 F. Supp. 2d 1342, 1349-53 (M.D. Fla. 2010) (finding plaintiff was ineligible for FMLA leave); Butler v. IntraCare Hosp. N., No. H-05-2854, 2006 WL 2868942, at *4 (S.D. Tex. Oct. 4, 2006) (finding employer’s attempt to persuade employee to work from home rather than take FMLA leave, then terminating her when it learned she would need FMLA leave, could constitute dis-couraging FMLA leave).

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research coordinator. The FMLA does not require De-fendant to create a nighttime schedule for Plaintiff. See Gilliard, 2012 WL 6115913, at *2; Brown, 2013 WL 1163427, at *5.6

2. Alleged Improper Deductions

There is no evidence in the record to support Plaintiff ’s allegation that Defendant “deducted more hours of FMLA leave than she actually took.” See Decl. of Pl. Yoosun Han [Doc. 29-1] ¶ 3. Defendant’s evi-dence, as opposed to Plaintiff ’s conclusory statement, shows Plaintiff ’s leave time was tracked by Plaintiff ’s reports, and never deducted for any amount greater than that which she reported. Decl. of Marcus Ur-quiaga [Doc. 22-3] In 6-7, Ex. B. Plaintiff received her full salary for two-and-a-half months even though she had exhausted her paid leave; moreover, her FMLA leave was supposed to be unpaid, because she inten-tionally refused to report the FMLA leave she took be-ginning in mid-August 2013 through her termination in late October 2013. Defendant paid Plaintiff her full salary for that period even though she continued to take FMLA leave, and contends, “This is above and be-yond the twelve weeks of unpaid leave required under the FMLA.” Henry, 2006 WL 2927533, at *3.

6 In addition, Chapman clarified the 6:00 PM deadline in late January, months before Plaintiff’s application for FMLA leave in late April. This timing, according to Defendant, “shows that the . . . decision was ‘wholly unrelated’ to [her] request for medical leave.” McCarroll, 595 F. App’x at 900.

App. 30

The Court agrees with Defendant. Although the Court draws all reasonable inferences from the evi-dence in favor of Plaintiff, her unsubstantiated decla-ration does not suffice to refute Defendant’s evidence. See Brown v. Snow, 440 F.3d 1259, 1266 (11th Cir. 2006).

3. Reporting Requirements

Plaintiff argues Chapman’s requirement that she provide reports was superfluous, and that Chapman failed to articulate a reasonable basis for the distinc-tion between her and an employee working a full-time schedule (though Chapman stated it was because she could observe the full-time employees’ work more reg-ularly). Pl.’s Resp. at 12-13. Plaintiff contends this con-stituted “harassment” and led her to take less FMLA leave than she otherwise would have done. Id. at 13.

The law, however, is clear that a “check-in require-ment in and of itself does not violate the FMLA; in fact, the regulations expressly contemplate that employers may require employees to periodically report their sta-tus.” Chauncey v. Life Cycle Eng’g, Inc., No. 2:12-CV-968-DCN, 2013 WL 5468237, at *12 (D.S.C. Sept. 30, 2013); see also 29 C.F.R. § 825.311(a) (“An employer may require an employee on FMLA leave to report pe-riodically on the employee’s status and intent to return to work.”). Here, Plaintiff cannot show the updates and reports discouraged her from taking leave. Chauncey, 2013 WL 5468237, at *12 (“Requiring an employee on leave to provide reports is consistent with the FMLA

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regulations, and without more, does not give rise to a claim for interference.”).

4. Termination

Plaintiff argues that her termination constituted interference because she still had FMLA leave availa-ble. Pl.’s Resp. at 13 (citing Bachelder v. Am. W. Air-lines, Inc., 259 F.3d 1112 (9th Cir. 2001); Henry, 2006 WL 2927533, at *10). However, Plaintiff cites no law for the proposition that an employer may not termi-nate an employee while the employee still has FMLA leave remaining. Id. Ultimately, Plaintiff fails to pro-vide any event or statement that pressured her to forego leave, or interfered with any leave, in any way whatsoever. Her self-serving statements cannot defeat summary judgment. See Brown, 440 F.3d at 1266.

B. FMLA Retaliation

A plaintiff who asserts a retaliation claim must prove that the employer acted with the intent to retal-iate. Russell v. N. Broward Hosp., 346 F.3d 1335, 1340 (11th Cir. 2003). “A plaintiff may prove her case via di-rect evidence or circumstantial evidence.” Cross v. Sw. Recreational Industries, Inc., 17 F. Supp. 2d 1362, 1371 (N.D. Ga. 1998). “Direct evidence is evidence that, if be-lieved, proves the existence of a fact without inference or presumption.” Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1081 (11th Cir. 2005) (internal quotation marks and citation omitted). If the plaintiff lacks direct evi-dence of retaliatory intent, the Court analyzes the

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claim using the McDonnell Douglas framework ap-plied to Title VII retaliation claims. Martin, 543 F.3d at 1268. To establish a prima facie case of FMLA retal-iation, a plaintiff must show that: (1) she engaged in a statutorily protected activity, (2) she suffered an ad-verse employment decision, and (3) the decision was causally related to the protected activity. Id.

Here, Plaintiff certainly engaged in a statutorily protected activity (taking FMLA leave) and suffered an adverse employment action (being terminated).7 She alleges the existence of a causal connection due to tem-poral proximity and her allegation that the adverse acts are “indisputably related” to her leave. Pl.’s Resp. at 16. She argues Defendant’s denial of evidence in the record regarding improper deductions in her pay is only a question of fact. Id. She states there is no legit-imate, non-retaliatory reason for any of the acts.

The FMLA specifically provides that leave for eli-gible employees may be unpaid, even for partial days and even when the employee is a salaried employee exempt from overtime requirements. 29 U.S.C. § 2612(c);

7 Although her Response focuses primarily on termination (and the preceding “write-ups”) as Plaintiffs alleged retaliatory action, Plaintiffs Complaint also states Defendant retaliated by sending her home from work, requiring her to submit reports, forcing her to clock in and out, deducting from her pay, and refus-ing to allow her to work late. Compl. ¶ 28. As discussed, the Court finds that Plaintiff has not provided sufficient evidence to demon-strate improper pay deductions, and also finds that each of the other alleged actions was taken for a legitimate, non-retaliatory reason; the Court need not determine whether they constitute ad-verse employment actions.

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29 C.F.R. § 825.100 (“The [FMLA] allows eligible em-ployees of a covered employer to take job-protected, unpaid leave.”); 29 C.F.R. § 825.207(a) (“Generally, FMLA leave is unpaid leave.”); 29 C.F.R. 541.602(b)(7) (“[W]hen an exempt employee takes unpaid leave un-der the [FMLA], an employer may pay a proportionate part of the full salary for time actually worked.”).

Plaintiff argues there is direct evidence that her termination occurred because she took FMLA leave and was thereby unable to work as Defendant required. Pl.’s Resp. at 14-15 (citing Dep. of Arlene Chapman [Doc. 24-1] (“Chapman Dep.”) at 59, 65, 123). However, the evidence establishes that Plaintiff was terminated because she refused to report the FMLA hours she took; refused to report her absences, or late and early arrivals to Chapman; and refused to adhere to her de-partment’s daytime schedule. Letter to Yoosun Han from Dr. Arlene Chapman, Pl. Dep. Ex. 31 [Doc. 23-5]; Chapman Dep. at 109, 122-23. Chapman stated in her deposition that it was not counted against Plaintiff that she was absent because of a medical condition. Chapman Dep. at 123.

[The] FMLA does not prohibit employers from terminating employees who do not comply with an internal company policy that requires employees to call-in when they will be absent. The fact that the absence might be related to a FMLA qualifying event does not abrogate the right of employers to know whether their em-ployees will be coming to work on a particular day.

Knox v. Cessna Aircraft Co., No. 4:05-CV-131 HL, 2007 WL 2874228, at *5 (M.D. Ga. Sept. 26, 2007). Further,

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an employer may require an employee to comply with the employer’s “usual and customary notice and proce-dural requirements for requesting leave.” See Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 710 (7th Cir. 2002) (holding that employee could be fired for failing to follow employer’s customary call-in policy while tak-ing FMLA leave).

Here, Emory has articulated a legitimate, non-re-taliatory reason for Plaintiff ’s termination; Plaintiff has admitted refusing to: (1) disclose the amount of FMLA leave she took, (2) follow Emory’s procedures for reporting absences, and (3) maintain a daytime sched-ule, despite warnings from her supervisor. Plaintiff cannot establish that the reasons for her termination constitute pretext when she admits they occurred. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1333 (11th Cir. 1998). “Where the defendant’s justification evidence completely overcomes any inference to be drawn from the evidence submitted by the plaintiff, the district court may properly acknowledge that fact and award summary judgment to the employer.” Young v. Gen. Foods Corp., 840 F.2d 825, 831 (11th Cir. 1988); Standard, 161 F.3d at 1333. Emory was entitled to rely on its policies which comply with the FMLA. Thus, the Court finds that there are no genuine issues of mate-rial fact that preclude a finding that Emory did not re-taliate under the FMLA.

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IV. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendant Emory University’s Motion for Sum-mary Judgment [Doc. 22] is GRANTED. It is further ORDERED that the Motion to Withdraw Alexander Mc- Ginnes as counsel for Plaintiff [Doc. 33] is GRANTED.

IT IS SO ORDERED this 28th day of September, 2015.

/s/ Mark H. Cohen MARK H. COHEN

United States District Judge