Scobey v. Nucor Steel-Arkansas

in procedure responding further. The July briefly frequently meets with both Court Mail and U.S. Via facsimile sentencing hearing to a prior counsel Gans, Esq. E. Michael procedural questions simply alert- address Clerk of Court to what issues remain to Court on the and how addressed record the law- Appeals States Court United proceed. meetings As yers wish these Eagleton F. U.S. Courthouse Thomas record, no substantive are not on dis- Street, Room 24.329 111 South 10th involved, offered, argument no cussion is Louis, Missouri 63102 St. and no substantive decisions are made. Only rarely present are defendants this States v. Gerald RE: 08-3819 United discussion; and procedural therefore Gammage expect Gammage would not Mr. Court Dear Mr. Gans: present meeting if such a occurred in this of the United Pursuant to the Order case. Eighth for the Appeals Court of States adequately responds I trust this to the Lee States v. Gerald Circuit United I inquiry. pleased Court’s would be 08-3819, pro- Gammage, No. this Court respond questions. additional following regarding certification vides the Sincerely, underlying in connection with the matters sentencing proceedings this Court. James E. Gritzner no indication the record There is James E. Gritzner of this it ever was Judge the files Court District Court U.S. with or considered a commitment

provided Mr. B. cc: William Ortman Court of Jones order from Circuit Purdy Mr. William C. to Defen- County, Mississippi, attesting Mr. Mark E. Weinhardt offense in burglary conviction of a dant’s January term of 1984. The D. that court’s Mr. Clifford Wendel independent has no recollection of Court the Exhibit and

such a document. While 121) (Clerk’s No. identifies

Witness List Mississippi Commit-

Exhibit 3 as Order, In- that exhibit is in fact an

ment January 1984 term of dictment from Talmadge SCOBEY, Appellant, court, County, Mississippi and is

the Jones v. as such in the tran- correctly identified STEEL-ARKANSAS, Appellee. NUCOR script. No. 08-1192. specific has ho record and no This Court meeting prior of a to this sen- recollection Appeals, States Court of United sentencing tencing hearing. Eighth Circuit. begin p.m. was set to at 1:30 hearing Dec. 2008. Submitted: hearing reflect the Clerk’s Minutes Aug. Filed: suggesting there was began p.m., at 1:45 prior counsel to the brief discussion with any specific

hearing. In the absence of

recollection, relies on routine the Court Gilbert,

Justin L. argued, Scott Michael Russell, brief, Jackson, TN, on the appellant. Mayes, M. disclosed that his ex-wife’s

Jeffrey argued, S. David father had brief, Linker, passed away K. on the how to arrange Minces and John and asked Houston, TX, appellee. time from off work order to attend the funeral. Blakemore told him that he BYE, SHEPHERD, BEAM, and Before arrange should call into work and a swap Judges. Circuit employee. Scobey with another then Seratt, Nucor, Paul called a “lead man” at SHEPHERD, Judge. Circuit if Wednesday, to ask he could take April Scobey appeals the district Talmadge 13, off from work attend the funeral. summary judgment on court’s1 dismissal Scobey Serratt told that he could attend alleging violations of the his lawsuit if, the funeral day, while at work the next (“FMLA”), Family and Medical Leave Act arranged he for a co-worker to work his seq. 2601 et §§ affirm. 29 U.S.C. We shift. 10, Sunday, April Scobey I. On did not come to work and called Seratt in- while 1998, Scobey began working In at Nucor toxicated. Seratt stated that: Hickman, Arkansas. From Steel [Scobey] through said he was and done 2005, he as a “ladle man” at the worked us, very with he was emotional and I mill, dangerous a demanding po- steel and very was concerned over his mental handling that involved the of thou- sition state at the time. I asked him not to do pounds sands of of molten steel. This anything stupid, Monday call $80,000 $90,000 position paid between [Teeter], Kirby come and talk to ... or Scobey rotating to work a and allowed myself over what he wanted to do or shift. options what his were. This suit arises from Nucor’s demotion Seratt then express called Blakemore to Scobey position company’s to a in the Scobey’s his concerns about welfare. La- department having incurred shipping night, Scobey ter that called and told 10-13, April four unexcused absences from “done, through” Blakemore he was Scobey due to drunkenness. also hung up phone. and then Worried prior had two unexcused absences in Feb- mind, Scobey’s about state of Blakemore ruary 2005. attendance Under Nucor’s Scobey called back and then met with him policy, on the “fourth occasion” an em- in person. During their conversation Sco- ployee’s unexcused absence bey complained to Blakemore about the company. be terminated from the pressure put employees. on its 9, 2005, Saturday, April Scobey at- On Monday, April spoke On Teeter with tempted to contact his direct supervisor, Scobey concerning April his call on 9. Sco- Teeter, Kirby message and left him a ask- bey told Teeter he had suffered a call, Scobey’s apparently him to return hung up nervous breakdown and then explaining without reason for the call. phone explanation. without further Although attempted Teeter to return the Scobey’s Teeter stated in an affidavit that call not April speak did speech was slurred and that he had the Scobey until 11. Later on Blakemore, Scobey Randy impression that was intoxicated. called another Scobey’s, a supervisor dishonesty, friend of and Due to incidents of Wright, Honorable Susan Webber Unit- tricl of Arkansas. Judge ed States District for the Eastern Dis- this, Scobey’s completion. Despite EAP claim of Nucor’s Teeter did believe completed told thought breakdown and Crain nervous program. initial to avoid work because he treatment did making excuses Then, Scobey designate Scobey’s called absences for treatment was intoxicated. Nucor, leave, designated paid at as FMLA but it as Segars, manager shift Steve that, company. him due to the death of his leave from the and told personal and some former father-in-law 20, Scobey May On met with Nucor’s he would not be back work problems, Commella, plant manager, Sam to deter- Next, Scobey drove Ser- for a while. appropriate discipline. During mine the he had and returned ladder att’s house meeting, Commella reminded borrowed, with him. speak but refused policy permitted Nucor’s absenteeism 12, Scobey up did not show at April On consecutive, termination after four unex- anyone and not contact at Nucor. work did Although cused absences. he admitted to 13, earlier, a a April Scobey having days On missed work for the “taste” of beer few day. Scobey fourth He called and left asked for a consecutive second chance. Com- Crain, message agreed Scobey with Nucor’s Hu- mella had made efforts Kellie behavior, Manager person improve man Resources and the in to his and that he could leave, charge designating saying employment of FMLA continue his with Nucor. However, day. that he would call her the next suspended Scobey On Commella for 14, April Scobey days entry- called Blakemore and told three and demoted him to an him that position he could not recall the level in Nucor’s shipping depart- days help. position four and that he wanted some ment. This new resulted a 40- Blakemore Scobey percent Scobey’s pre-demo- told to contact HR 50 reduction in Manager Scobey Crain. pay required and tion and that he work the night Scobey Crain were unable to reach each other shift. now states that he 15, until April April Scobey interpreted 19. On visited an attempt by his demotion as physician. physician diagnosed Nonetheless, Nucor to force him quit. Sco- bey hypertension, Scobey object but did not mention did the time to his and, depression during or alcoholism and did not state demotion the first two weeks that he position, needed time off from work. When of his pay new he received a Scobey and spoke April notify- Crain Sco- raise. thereafter Soon and without bey leave, told Crain that he an Scobey alcohol Nucor of his intent to problem depressed. and that he stopped coming to work. up appointment Crain set an with the Em- Nucor, Scobey then sued asserting (“EAP”)

ployee Program Assistance discriminatory claims of interference and day. the next retaliation under the FMLA. The district April Scobey On summary was assessed at court dismissed both claims on EAP, Nucor’s which him to judgment. referred Lake- The court dismissed his inter- System side Behavioral Health for inpa- ground ference claim on the depres- tient treatment of alcoholism and had failed to notice that four provide his sion. On discharged Lakeside absences from 10 to might outpatient and transferred him to FMLA-qualifying leave. The court dis- care following diagnoses depen- for alcohol missed his retaliation claim on ground the dence, withdrawal, depression, alcohol genuine dispute there was no as to disorder, post-traumatic stress hyperten- whether Nucor demoted for ab- sion, job/family impairment. Scobey protected by sences that were not terminated outpatient care before its FMLA. (Colloton, J., concurring) (arguing that

II. against an em- alleging claims retaliation summary judg grant We review exercising his or her FMLA Parcel Battle v. United de novo. ment understood as interfer- rights properly are (8th Inc., Cir. Serv., 438 F.3d 2615(a)(1), not ence claims under section 2006). appropriate Summary judgment is claims under section discrimination discovery and disclo pleadings, “if the 2615(a)(2)). summary Scobey appeals the affidavits, file, materials on sure of his interference and retaliation dismissal as to no issue that there is show claims. that the movant any material fact and “In state a claim for inter order to matter of law.” judgment as a entitled to FMLA, [Scobey] ference under the must 56(c). reviewing grant In Fed.R.Civ.P. need for given [his] view the evi summary judgment, we Al Phillips, 547 F.3d at 909. leave.” non-moving party. in favor of dence though the FMLA statute does define Battle, at 864. 438 F.3d type timing required of the notice [FMLA], eligible employ “Under unforeseeable, when the need for leave is weeks of up to twelve ee is entitled (“DOL’s”) Department of Labor’s period during leave a twelve-month unpaid regulations provide some considerable health condition that of a serious ‘[b]ecause they generous em guidance, and are the perform unable to employee makes the ployees. given Notice must be “as soon employ of such position functions of the employee “the need practicable,” as but ” N. v. Fresenius Med. Care ee.’ Rask explicitly rights assert under the Cir.2007) (8th Am., 466, 471 509 F.3d FMLA mention the FMLA” to or even 2612(a)(1)(D)). § “A (quoting U.S.C. to determine require employer the ‘illness, any ‘serious health condition’ by the whether leave would be covered injury, physical or or mental impairment, FMLA. (A) care in inpatient condition that involves Rask, (quoting at 471 29 C.F.R. 509 F.3d residential medical hospital, hospice, or (b) (2007)). 825.303(a), Although § recent (B) facility; continuing or treatment care regulations amendments to the DOL’s ” Phillips v. provider.’ a health care generosity, have somewhat curtailed this (8th Cir.2008) Mathews, 905, 909 547 F.3d regulation place during the in the events 2611(11)). § (quoting 29 U.S.C. Under that, after giving rise to this lawsuit stated law, our case given notice had been of claims under the types are two employer expected [t]here will be to obtain [t]he “(a)(1)” (1) any required “interference” or additional information FMLA: employee through informal means. employee alleges in the claims which spokesperson expected pro- will be or interfered employer that an denied or it can readi- vide more information when rights under the with his substantive matter, ly accomplished practical as a be (2) “(a)(2)” FMLA and “retaliation” taking exigencies into consideration the alleges employee claims in the which of the situation. against employer that the discriminated 825.303(b)(2005).2 § 29 C.F.R. rights. FMLA exercising him for omitted) recent (citing 29 U.S.C. even before the (quotation Id. amendments, 2615(a)(1)-(2)). that an em- we have held But see id. at 913-14 825.303(b), stringent puts place a notice stan- more 2. The version of section current 16, 2009, January dard— which became effective merely balancing employee’s must do more than call means of the rea- trigger employer’s sick to an duties under employer’s legiti- needs and the sonable “Although employee the FMLA. need interests, employer may, upon mate an statute, provide name the he must timely and of an receiving adequate notice that his con suggest information to health employee’s possible incapacity, request serious.” v. Daim dition could be Woods stating medical certification form (8th lerChrysler 409 F.3d Corp., (1) the date on which the serious health (citation omitted). Cir.2005) Thor son Cf (2) commenced; probable (8th Gemini, Inc., v. 205 F.3d (3) condition; appro- duration of the Cir.2000) (“An employee need not invoke priate medical facts the knowl- within by name in order to an put the FMLA edge provider of the health care re- on notice that the Act condition; garding ... [and][4] relevance to the absence from case], purposes of leave the instant [in work.”); Browning Liberty v. Mut. Ins. a statement that the is unable (8th Co., Cir.1999) 178 F.3d perform position the functions of the (“Under FMLA, employer’s duties employee[.] of the triggered employee provides are when the (b)(4)(B). 2613(b)(l)-(b)(3), 29 U.S.C. If enough put information to it employee may validity notice that the doubts the of the first medical need leave.”). “Employees reason, thus have certification for an employer duty affirmative to indicate both the need may, expense, at its own seek a second leave, and the reason for the and must let and, opinion when there is a conflict be- employers they when anticipate know re certifications, tween the first and second it Woods, turning position.” to their (d)(1). may 2613(c)(1), § seek a third. Id. omitted). (quotation F.3d at 990-91 “The that provided contends employer must be made that the aware timely with sufficient and notice that he absence is due to a serious illness so the had a requiring serious health condition employer distinguish ordinary can it from during FMLA leave the four unexcused ‘sick-days,’ or malingering, type even as a Having absences from 10-13. re- Rask, privileged unusual and absence.” notice, proper argues, ceived at F.3d 472. “To hold otherwise would procedures failed to follow the FMLA’s an employ create unreasonable burden for designed protect employers by not re- ers, requiring investigate virtually them to questing a medical certification form from every absence to ensure that it does not provider a health care corroborating that qualify for FMLA leave.” Id. Scobey was unable to work. The designed protect, FMLA was alleged requires claims that this failure part, relevant the reasonable medical that Nucor be estopped denying from that needs of employees with serious health he had a serious protect- medical condition by conditions within the limits set the em- ed the FMLA. ployer’s legitimate in managing interest its 2601(a)(4), Scobey’s principal in support business. See 29 case of this U.S.C. (b)(2), (b)(3); Woods, Gemini, at argument F.3d 991. As v. In Thorson Inc. employee specifically employer [T]he must expected reference Act. The will be ob- qualifying either required the reason for leave or the tain additional information Calling through employee need for FMLA leave. in "sick” informal means. An has providing obligation respond employer's

without more information will an to an trig- designed not be questions considered sufficient notice to to determine whether an ger employer’s obligations potentially FMLA-qualifying. an under the absence is Thorson, totality surrounding employee missed more than the circumstances and, ab- days during three of work her to determine whether sufficient notice was sence, from physi- two notes her provided 825.303(b). given. See 29 C.F.R. For that she was unable to work. stating cian instance, v. Spangler Federal Home requesting at 381. Without F.3d Moines, Bank the employer Loan Des form, the employer medical certification many years had known for that the em- employment her summarily terminated ployee’s depression periodically neces- policy. its attendance Id. violating time sitated off from work. 278 F.3d request medical evalua- employer did (8th Cir.2002). context, 852-53 Within filed suit employee tion until the several employee’s the statement she would In Id. at 382. that situa- months later. be absent from work of her because “de- tion, the employee’s this court held again” pression put employer on notice advising of two doctor’s notes submission might that she be entitled to FMLA leave. put that she should not work Id. at 852. might eligible she be notice that Id. at leave. 381. This FMLA-protected In other we have circumstances found employer’s responsi- triggered Woods, notice to be In insufficient. we bility to count the absence as explana held notice must contain an inquire further into the leave rendering tion of the employ a medical certifica- by requesting matter ee unable to in order adequately work Having tion form. Id. at 381-82. failed to apprise employer that the condition inquiries, make could further protected by the FMLA. 409 F.3d medical evaluations to create use later (holding that two 992-93 doctor’s issue of material fact as to the stating ployer diagnosed that had been she with that bey put might Nucor on notice be depression given adequate had not notice Only the if entitled to leave under FLMA. because ... “[depression is notice do provided adequate we need to many any and the employer examine whether defaulted on variations” obligation further. inquire Having to ex- would need additional details before being record, we conclude amined the that there on notice rendered that her condition her no of material that is issue fact unable to work. 509 F.3d at 472-73. adequately put Scobey did not Nucor on Spangler distinguished Rask the notice. ground employer previous the had no knowledge employee’s depression of the regulations Because the DOL’s lacked that it and indication was so and adequacy state that the timeliness serious as to her render unable work. dependent notice are standards on the case, must at 473. facts of each we look at the Id. the approach

3. court took a different in do not need to harmonize contradiction This Gemini, Inc., Thorson, hand, Thorson v. Rask where between on the one we held Woods, other, adequate employee provided because notice when merely provide adequate stating notice under she submitted two notes "no failed either 374, However, work.” 205 F.3d at we standard. 788 Scobey argues that Woods and Rask notice that something gone “itself

impose employees medically burdens on in wrong, perhaps excess no [excuse] obligations the minimal notice in 29 C.F.R ....” tice Id. at 381. the DOL case, § Citing 825.303. a Seventh Circuit subsequently has deleted the sentence re Scobey argues “probable cause” is the by lied on the court in Byrne replaced appropriate determining standard for ade- it with language currently reads: “[i]t quacy of notice. See Aubuchon v. generally should practicable be for the em Knauf GmbH, (7th Fiberglass, 359 F.3d provide notice of leave that is Cir.2004) (“[T]he employee’s duty is mere- within prescribed unforeseeable the time ly place on notice aof by employer’s customary usual and leave.”). probable for FMLA basis requirements applicable to such Whether Seventh Circuit uses a stan- 825.303(a).5 leave.” 29 C.F.R. Now any significant respect dard different in that the DOL has nullified regulatory circuit, from the standard used we doctrine, basis for the we decline to create need not address. We are bound our exception constructive-notice to an em law, case not that of one of our sister Woods, ployee’s duty,” “affirmative see circuits. 990-91, notify F.3d at his or her em adopt also asks us to the “con ployer of the might need for leave that doctrine, structive notice” which states FMLA-qualifying. that “either an employee’s inability to com Prior to his four absences from municate his illness to his employer or 13, 2005, 10 to Scobey had clear abnormalities be incurred two unexcused absences in Feb havior constitute constructive notice ruary of the year. Scobey same initially of a serious health condition.” Stevenson requested day funeral, off to attend a Elec., Co., (7th v. Hyre 505 F.3d which is not protected by the FMLA. See Cir.2007) Prods., (citing Byrne v. Avon Co., Andonissamy v. Hewlett-Packard (7th Cir.2003)). 328 F.3d 381-82 We (7th Cir.2008) F.3d (employee re have serious continuing doubts about the quest to nephew’s attend funeral is not a

validity of constructive notice in the leave). request for FMLA He then called FMLA context. The Seventh Circuit in while intoxicated and stated that he Byrne v. Avon Prods. relied on a wanted to employment terminate his 825.303(a), version of 29 C.F.R. which Nucor. This was not notice that he need that, unforeseeable, stated when leave is ed time off from work. This was notice expected that an employee give “[i]t will that he intended to employ terminate his notice to within no more than ment at Nucor. He was intoxicated working days one or two learning of the throughout the four days of his absence leave, except need for in extraordinary and cannot any remember details of this circumstances where such notice is not period. While absences for treatment of (adding 328 F.3d at 382 emphas feasible.” is).4 alcoholism protected by FMLA, are Based on “extraordinary this cir absences caused exception, cumstances” the court in the use of alcohol Byrne are concluded that an employee’s not. See aberrant or Darst v. Interstate Corp., Brands could, cases, (7th Cir.2008) unusual 903, (“[A]b- behavior some be 512 F.3d Although 4. the text of the FMLA statute does forth in section 825.303 under 29 U.S.C. provide requirement not a 2654. notice for unfore- leave, Secretary seeable of Labor has au- 5. The amended section became effective on thority promulgate requirements to set January provided more information employee’s use of of

sence because treatment, Scobey provided to employer does than Nucor. substance, than for rather leave.”). (genuine Phillips, Further- F.3d at 919-11 See qualify for FMLA not conversations, notice more, issue of material fact whether was Scobey had several that person, adequate employer and in knew telephone where em both over the during time off for a doctor’s representatives ployee needed visit with Nucor’s conversations, a relating these Sco- to recent accident and period. During anticipation of that anything prepared paperwork mention bey made no leave); have constituted no- possible of need for additional plausibly could even leave until Spangler, (genuine tice of need for FMLA 278 F.3d at 852 issue of supervisor employee’s to his he remarked material fact whether state when he believed he was hav- that miss work Kirby Teeter that ment she needed to due to adequate and was “depression again” a “nervous breakdown” was notice * * Although acknowl- up.” “f* ed where knew con absences); is not a serious edges required previous intoxication dition FMLA, Thorson, (two by the at protected health condition 205 F.3d 381-82 that such comments should work” argues stating doctor’s notes “no without ineb- explanation to Nucor that his further constituted demonstrated sufficient notice). Furthermore, a manifestation of his have also riated state was we held these to be underlying depression. inadequate employee when in the of especially provided context more information than comments— absences, Rask, Scobey’s unexcused provided to Nucor. See at F.3d behavior, shifting explana- drunken and (holding physician’s diagnosis that a of come tions he could not to work— why its depression, absent details about severi apprise Nucor of inadequate were ty incapacity, and resulting inadequate under the FMLA. possible obligations notice); Woods, 409 F.3d 992-93 assume, Moreover, for purposes even if we (holding notes excusing that two doctor’s Scobey’s re- summary judgment, provide from work failed to 14 to that he mark Blakemore they because did not sufficient notice de help” constituted suf- get condition).6 some “wanted the employee’s scribe Scobey might need some ficient notice that sufficient, has fallen short of both what for treatment time off in the future Thorson, Phillips, Spangler as that remark did depression, alcoholism or Woods, as in Rask and necessary, what is Scobey’s immediate- not the fact alter material to create issue of fact not, were did ly preceding absences on notice put to whether he Nucor of a as be, protected by appear FMLA leave. possible need for There is the FMLA. any prior no evidence that Nucor had problem, knowledge Scobey’s alcohol cases, Scobey failed prior our has

Under and, were, if the FMLA only even there provided adequate notice to show that he treatment, alcohol protects absences for to Nucor that he had “serious health Scobey’s alcohol statements and use. him rendering “unable to work.” condition” only put on notice that he behavior we have held that The cases in which Thus, upset Scobey intoxicated. as a of was inadequate, not matter was law, with no basis on which to provided in which the em- involved situations alcoholism, tension, depression not or and did provided Scobey 6. that he a note from claims say hypertension necessitated the April that his physician Howev- he visited 15. er, Scobey diagnosed hyper- absences. the doctor ordinary He four “distinguish from claim. claims that his [his absence] unexcused type ‘sick-days,’ malingering, or even as merely were for pretext absences demot Rask, privileged of unusual and absence.” using paid him retaliation for leave 509 F.3d at 472. to obtain treatment for his alcoholism and provide notice, Scobey’s there

Having depression.8 failed is no evi claim that with his interfered supporting dence this claim and the four his four rights by demoting FMLA him for absences, especially when combined with April April unexcused from absences absences, his two unexcused were reason, 13 must fail. For this it is unnec enough to warrant termination under Nu- essary Scobey’s arguments to reach other Thus, policies. attendance cor’s there is concerning successfully he has whether no issue of material fact as to he health demonstrated that had a serious whether Nucor was entitled demote by the We can protected FMLA.7 for the Scobey absences incurred from only reach a claim that an inter 10 to April April Having 13. failed to employee’s right fered with an under the show that he was demoted for absences FMLA to take leave for a health serious FMLA, protected by Scobey cannot employee condition if demon first against show Nucor “discriminated or employ strates that he she notified the him for FMLA exercising rights.” his possible Having er of the need for leave. Phillips, (quotation 547 F.3d at 909 omitt timely to provide adequate failed no ed).9 Furthermore, having failed to make tice, any argument about whether prima retaliation, out a for case facie actually had a serious health condition dur there was no district need for the court to ing the time period relevant is moot.

consider whether Nucor’s stated reasons III. demoting Scobey for a pretext were under Scobey’s burden-shifting framework for large- retaliation claim for FMLA fails ly the same reasons as his interference retaliation claims. See at 912. id. Scobey argues 7. Nucor committed an claim ence that an suffered an ad- additional violation of the FMLA it nei- employment when verse action because he or she designated subsequent ther treatment for protected by took leave the FMLA is difficult depression alcoholism leave as FMLA nor distinguish from a retaliation claim that an request did it a medical certification form against discriminated such an em- Manager when he HR that he informed Crain exercising rights. his or her FMLA needed such treatment. does al- 2615(a)(1) 29 U.S.C. states that “[i]t shall claim, lege separate as a violation howev- with, any employer be unlawful for to interfere alleges requested er. He that had Nucor restrain, deny attempt exercise orof form, medical certification would exercise, any right provided under [the retroactively been able to show that he had a added). (emphasis FMLA].” The FMLA also qualifying serious health condition for FMLA provides against an additional cause of action protection from 10 to 13. employers "discharge any who or in other against any manner discriminate individual parties agree that the leave took opposing practice by made unlawful in-patient to obtain treatment alcohol- for his 2615(a)(2). [the FMLA].” U.S.C. This depression FMLA-qualifying. ism and sort, prohibits but retaliation of a not retalia- tion for an exercise of his or her statute, rights. similarity Scobey’s 9. The Under the obvious retaliation for between exercising rights appears “interference” and "retaliation” claims calls one's FMLA to be question articulating just aspect into case law one what meant our "interfer- See, ence,” separate Phillips, two claims available under the FMLA. not a claim. See J., (Colloton, e.g., Phillips, concurring). F.3d at 909. interfer- An F.3d at 913-15

rv. a serious health the result of protection. to FMLA entitled the district affirm Accordingly, we judgment of summary on dismissal court’s timely. Nucor Scobey’s notice was also claims. Scobey’s all of notice he Scobey give did not argues 14, which it April until needed treatment dissenting. Judge, BYE, Circuit days or beyond the one two claims was ' context of in the majority is correct by the statute. See contemplated leave to FMLA being entitled Scobey not DaimlerChrysler Corp., 409 v. Woods use, to opposed as of alcohol the basis Cir.2005) (8th (citing 29 F.3d See 29 C.F.R. treatment. alcohol abuse 825.303(a)). Rather, disagree. I C.F.R. 825.114(d). However, there is I believe possible need indicating the statements as to material fact issue began for mental health issues for leave as to Nucor on notice Scobey put whether his expressed first much earlier. leave on the of FMLA being in need his having a “nervous break- he was belief I therefore depression. severe basis of 11, only day one after his April down” on dissent. comments which His other first absence. employees express concern notice as led Nucor sufficient

Scobey gave Nucor began day on the on the over his mental state FMLA leave in need of being his Therefore, absence, April he his first depression because of severe basis giving notice on a “nervous commenced having he was twice stated sufficient, at notice became College Dic- and this See Webster’s breakdown.” ed.2000) latest, (2d when he stated he (defining “ner- tionary 888 having a “nervous breakdown.” “any disabling mental was as breakdown” vous simply be- probable it treat- While requiring disorder emotional to be excuses or lieved these statements ment”); Dictionary 515 English Oxford his obvious in- ed.1989) because of (2d exaggerations “nervous break- (defining toxication, be- the statute was satisfied or inca- severe as a “term down” disorder”). enough information to Scobey gave In cause addi- emotional pacitating (that incapacitated he possibility indicate a was tion, his other statements problems. of mental “had some from work because up,” and “through,” “f*cked it was possibility, raised this issues”), just as easi- Once they could while require upon Nucor and intoxi- then incumbent alcohol use ly related between to differentiate cation, express substantiation employees led Nucor Gemini, v. causes. See Thorson possible and even his mental state concern over (8th Cir.2000). Inc., F.3d 381-82 example, Serratt ex- For possible suicide. mental Scobey’s concern over pressed dissent. respectfully I therefore state, relayed to Blakemore. which Scobey’s concerned over Blakemore was so health, possible suicidal including

mental Scobey’s house that he went to

thoughts, And, Scobey final- when on him.

to check Crain, Scobey Manager HR

ly spoke mental alcohol and her he had both

told indicated These statements

problems. gave generic depression than

more Scobey’s absences notice that notes was “advised the employee’s the notes from validity of inadequate to remain off work” were be physician excusing her from work. Id. at they cause mention the did not nature of illness).3 Rask, Similarly, we held however, applies, Whether Thorson de- that an employee who informed her em pends first and foremost whether Sco-

Case Details

Case Name: Scobey v. Nucor Steel-Arkansas

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 25, 2009

Citation: 580 F.3d 781

Docket Number: 08-1192

Court Abbreviation: 8th Cir.