Ali Bazzi v. Tyco Healthcare Group

1The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-3466
___________
Buddy Rynders, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Larry Williams, In His Official and *
Individual Capacity as Judge of *
Garland County, Arkansas, *
*
Defendant-Appellee. *
___________
Submitted: June 15, 2011
Filed: August 18, 2011
___________
Before BYE and MELLOY, Circuit Judges, and ERICKSEN, 1 District Judge.
___________
MELLOY, Circuit Judge.
Buddy Rynders sued Larry Williams for wrongful termination, in violation of
Rynders's rights under the First Amendment and the Family and Medical Leave Act
("FMLA"), 29 U.S.C. § 2601 et seq. The district court granted summary judgment in
favor of Williams, and Rynders appeals. We reverse.

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2A county judge in Arkansas is one of the chief executive officers for a county
and performs no judicial functions.
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I.
On June 8, 2003, Rynders commenced working for the Garland County,
Arkansas Road Department. Nearly three years later, on April 6, 2006, Rynders was
involved in a workplace incident with three other Road Department employees.
During the incident, Rynders purportedly came to the defense of one employee against
the other two, who were carrying a rock and a knife. Rynders called the police and
filed charges against the two attacking employees, but the charges were later dropped.
Rynders maintains that Williams, who was responsible for the Road Department as
part of his duties as judge for Garland County,2 had the prosecutor dismiss the
charges. Rynders also alleges that Williams expressed his disappointment in how the
situation was handled.
Since that incident, Rynders claims that his coworkers at the Road Department
have harassed him. Specifically, Rynders alleges that he has received death threats
and that his coworkers have hidden his time card in an effort to make him appear late
or absent. This harassment only intensified, according to Rynders, after Rynders
found illicit narcotics in a County vehicle and reported it to Jerry Lampo, the Assistant
Road Commissioner. Rynders stresses that he has reported the harassment on
numerous occasions to no avail.
On December 17, 2007, a local paper published a letter Rynders wrote to the
editor. In that letter, Rynders asserted that the Garland County Quorum Court, the
legislative body for Garland County, was unjustifiably refusing to raise the wages of
County employees. The letter mentioned Williams only once, stating that: "Garland
County Judge Larry Williams has asked for raises and been turned down on more than
one occasion."

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-3-
On September 12, 2008, Bobby Maughan, the Road Commissioner appointed
by Williams to run the Road Department, issued Rynders a written warning, stating
in total: "You have been late to work on several occasions. In August you were late
13 times and so far in September you have been late 7 times. This is not acceptable.
If this behavior continues, further disciplinary action will be taken." According to
Rynders, he informed the Road Department at this time that some of his tardiness and
absences were due to his coworkers hiding his timecard and that some tardiness and
absences were due to severe complications from taking an ace inhibitor, a medication
primarily used for the treatment of high-blood pressure. Rynders also claims that he
requested and was denied information on how to take FMLA leave even after stating
that he may have to miss more work due to his illness. In his own words:
Bobby Maughan, Jerry Lampo, Debbie Holt or Hope (secretary) and
Cindy Archer (office administrator) were present at this meeting. During
the meeting, I explained that many of my tardies were due to a chronic
illness that I was trying to get diagnosed, that I was seeing my doctor,
and that I might have to go out of state to a specialist. I told them that I
was having trouble breathing, and that I was dizzy a lot, that I was
blacking out, that I was coughing severely, and vomiting. I would miss
work because I had to see a doctor; was too ill to do my job due to these
symptoms; or they would cause me delays in getting to work. . . . I
asked them for FMLA paperwork at that time. They did not give it to
me. I repeatedly asked for months afterward and was not given the
paperwork. . . . Jerry Lampo has claimed that I lost interest in the leave
after finding out it was not paid. This is a lie on his part.
While acknowledging that this conversation occurred and that Rynders inquired about
the FMLA, Lampo testified that Rynders never asked for any FMLA paperwork, lost
interest in any leave after finding out that it was unpaid, and never discussed the issue
again.
On January 13, 2009, Lampo gave Rynders a written suspension. In that letter,
Lampo stated that Rynders was being suspended because Rynders had been late to

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work fifty-two times in 2008 and because he had abused sick time by taking twenty
days in 2008, even though he did not have paid time for seven of those days. The
letter further informed Rynders that the suspension was to last three days until a final
decision on Rynders's employment was made and that, if Rynders wanted to respond,
Rynders must do so in writing by January 15, 2009. The letter finally stated that
Garland County would be making the final decision on Rynders's employment on
January 16, 2009.
According to Rynders, he subsequently prepared a response and attempted to
deliver it to Lampo on January 15, 2009. Rynders maintains that Lampo was acting
as the head of the Road Department by this point because of Maughan's declining
health and that Lampo refused to accept his written response, stating that Rynders
should "go to the Judge's office because it was out of his hands."
Before going to Williams's office, Rynders called a friend, Diane Silverman,
and asked her to accompany him so that he would have a witness. Silverman agreed,
and they traveled to Williams's office, where Williams agreed to meet only with
Rynders. According to Silverman, she was forced to wait outside of his office, but she
was nonetheless able to hear most of the conversation by sitting next to the door and
later a wall. Both Silverman and Rynders assert that Williams told Rynders in the
ensuing conversation: "I am firing you because of . . . that letter you wrote about my
finance committee." Williams denies making this statement or even being involved
in the decision to terminate Rynders, but he does admit that he had the authority to fire
Rynders and that he had been apprised of Rynders's employment situation prior to his
termination. Moreover, Williams admits he used Rynders's letter to the editor as an
example of Rynders's disloyalty during his conversation with Rynders.
On January 20, 2009, after temporarily extending Rynders's January 13
suspension, Lampo sent Rynders a letter stating that Rynders's employment had been
terminated. Rynders subsequently filed suit against Williams in both his individual

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capacity and official capacity as judge of Garland County pursuant to the First
Amendment, via § 1983, and to the FMLA. In his lawsuit, Rynders alleges that
Williams violated his First Amendment rights by firing him for writing the letter to
the editor and for reporting the 2006 altercation to the police. Rynders also asserts
that Williams interfered with his rights under the FMLA by refusing to provide him
notice of his rights under the Act and by retaliating against him for taking medical
leave to which he was entitled.
Williams moved for summary judgment, and the district court grant the motion.
With respect to Rynders's First Amendment claims, the district court concluded that
Rynders could not prevail as a matter of law against Williams in either his personal
or official capacity because:
[v]iewing the facts in a light most favorable to [Rynders], the Court
cannot find [Williams] terminated [Rynders] for his involvement in the
criminal proceedings or in the writing of the letter to the editor. There
is no indication that [Williams] was in any way responsible for the
disciplinary actions, including warnings and suspension, taken against
[Rynders] that led to his termination. The evidence before the Court is
that [Rynders] was terminated for his poor attendance at work.
The district court further concluded that summary judgment was appropriate on
Rynders's First Amendment claim against Williams in his official capacity because
Rynders failed to present sufficient evidence demonstrating that Garland County had
a policy of retaliating against employees who exercised their First Amendment rights.
In reaching its decision, the court acknowledged Rynders's "claims that [Williams]
told him he was being fired for the letter," but dismissed this evidence as insufficient
to create a factual question on the reason for Rynders's termination. The district court
also found it unnecessary to consider the extent to which Williams was responsible
for setting Garland County policy given its conclusion that Williams was not involved
in the decision to terminate Rynders.

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Similarly, the district court rejected Rynders's FMLA claims, concluding that
Rynders failed to "provide [Williams] with adequate notice that he suffered from a
serious health condition or that he was requesting FMLA leave." The court found "no
evidence supporting [Rynders's] claim that either [Williams] was aware of his alleged
serious health condition, or that adequate notice was provided that would indicate
[Williams] should have been aware of the condition." While the district court did
mention Rynders's conversation with the Road Department on September 12, 2008,
the district court found this insufficient to create a genuine issue of material fact as to
whether Williams knew or should have known that Rynders was suffering from a
serious health condition and might be entitled to leave under the FMLA. Rynders
appeals the district court's grant of summary judgment on both claims.
II.
This court reviews a grant of summary judgment de novo. Wierman v. Casey's
Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011). "Summary judgment is proper if, after
viewing the evidence and drawing all reasonable inferences in the light most favorable
to the nonmovant, no genuine issues of material fact exist and the movant is entitled
to judgment as a matter of law." Rau v. Roberts, 640 F.3d 324, 327 (8th Cir. 2011)
(internal quotation marks omitted). "Credibility determinations and the weighing of
the evidence are jury functions, not those of a judge," Wierman, 638 F.3d at 993, and
"[t]he court should deny summary judgment if there is sufficient evidence for a jury
to return a verdict for the non-moving party." Young-Losee v. Graphic Packaging
Int'l, Inc., 631 F.3d 909, 911 (8th Cir. 2011)
A.
Rynders argues that the district court improperly granted summary judgment
on his First Amendment claims by failing to properly consider the substantial amount
of evidence indicating Williams had the authority to fire Rynders and did so because

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3We note that some ambiguity exists in our jurisprudence as to the appropriate
burden-shifting framework to apply in First Amendment retaliation cases that do not
involve "direct evidence." See Davison, 490 F.3d at 655 n.5. We need not comment
on this issue because, as discussed infra, the record includes direct evidence that
Williams fired Rynders in response to the 2007 letter to the editor.
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of Rynders's 2007 letter to the editor. Rynders further contends that the district court
erred in concluding that Williams could not be held liable in his official capacity in
light of his evidence that Williams, as Judge of Garland County, had the authority to
set Road Department policy. We agree in part.
"A public employer may not discharge an employee on a basis that infringes
that employee's constitutionally protected interest in freedom of speech." McGee v.
Pub. Water Supply, Dist. No. 2 of Jefferson Cnty., Mo., 471 F.3d 918, 919 (8th Cir.
2006) (internal quotation marks omitted). This is because "public employees do not
surrender all their First Amendment rights by reason of their employment." Garcetti
v. Ceballos, 547 U.S. 410, 417 (2006). Indeed, "[a] public employee retains a degree
of First Amendment protection when [he] speaks as a citizen addressing matters of
public concern." Bonn v. City of Omaha 623 F.3d 587, 592 (8th Cir. 2010). To
establish a prima facie case of retaliatory termination, a plaintiff must both allege and
prove: (1) his speech was protected by the First Amendment; (2) the governmental
employer discharged him from employment; and (3) the protected speech was a
"substantial or motivating factor in the defendant's decision to take the adverse
employment action." Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654–55
(8th Cir. 2007). "If the plaintiff meets this burden, the burden shifts to the defendant
to demonstrate that the same employment action would have been taken in the absence
of the protected activity." 3 Id.
Construing the record in a light most favorable to Rynders, we believe that a
genuine issue of material fact exists as to whether Williams terminated Rynders's
employment because of the letter Rynders wrote to the editor in 2007. As County
Judge, Williams had the responsibility to oversee the Road Department and the
authority to make all personnel decisions, including the decision whether to continue

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or terminate Rynders's employment. Moreover, Rynders, through his own testimony
and that of Silverman, presented substantial, direct evidence that Williams used his
authority to punish Rynders for writing the 2007 letter. Specifically, Lampo
purportedly stated that Williams was making the final employment decision and
Williams purportedly stated he was firing Rynders because of the letter. While certain
aspects of the record do indicate that Rynders was fired due to his frequent
absenteeism and tardiness, such evidence only goes to the credibility of Rynders's and
Silverman's statements. It does not demonstrate, as a matter of law, that Rynders's
employment would have been terminated regardless of the 2007 letter. Accordingly,
because a court's "function is not . . . to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial," Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), we reverse the grant of summary
judgment on this ground.
We also believe that summary judgment should not have been granted in favor
of Williams in his official capacity without a full consideration of whether he set the
employment policies for the Road Department. Rynders's suit against Williams in his
official capacity is, in effect, a suit against Garland County, and Garland County can
be liable "if one of its customs or policies caused the violation of [Rynders's] rights."
Copeland v. Locke, 613 F.3d 875, 882 (8th Cir. 2010). Although rare, a public
official's single incident of unconstitutional activity can establish the requisite policy
if the decision is "taken by the highest officials responsible for setting policy in that
area of the government's business." City of St. Louis v. Praprotnik, 485 U.S. 112, 123
(1988); Davison, 490 F.3d at 659 ("In this scenario, municipal liability attaches only
where the decisionmaker possesses final authority to establish municipal policy with
respect to the action ordered." (alteration omitted) (internal quotation marks omitted)).
Since Rynders has created a genuine issue of material fact as to whether Williams
terminated him for the 2007 letter to the editor, the district court should have
considered the extent to which Williams set Road Department policy before granting
summary judgment on this ground and should do so on remand.

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B.
Rynders also argues that the district court erred in granting summary judgment
on his interference and retaliation claims under the FMLA. According to Rynders, his
conversation with the Road Department on September 12, 2008, as well as his
subsequent conversations, put Williams on notice that he was suffering from a serious
medical condition and might have been in need of FMLA leave. We agree in part.
"The FMLA entitles an employee to twelve work-weeks of leave during any
twelve-month period if [he] has a serious health condition that makes [him] unable to
perform the functions of [his] position." Estrada v. Cypress Semiconductor (Minn.)
Inc., 616 F.3d 866, 871 (8th Cir. 2010). A serious health condition "means an illness,
injury, impairment, or physical or mental condition that involves (A) inpatient care in
a hospital, hospice, or residential medical care facility; or (B) continuing treatment by
a health care provider." 29 U.S.C. § 2611(11). "There are two types of claims under
the FMLA: (1) interference . . . claims in which the employee alleges that an employer
denied or interfered with his substantive rights under the FMLA and (2) retaliation .
. . claims in which the employee alleges that the employer discriminated against him
for exercising his FMLA rights." Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir.
2008) (internal quotation marks omitted).
"A claim under the FMLA cannot succeed unless the plaintiff can show that he
gave his employer adequate and timely notice of his need for leave . . . ." Woods v.
DaimlerChrysler Corp., 409 F.3d 984, 991 (8th Cir. 2005); see also Scobey v. Nucor
Steel-Ark., 580 F.3d 781, 789–90 (8th Cir. 2009). An employee provides adequate
notice to the employer "when the employee provides enough information to put the
employer on notice that the employee may be in need of FMLA leave." Thorson v.
Gemini, Inc., 205 F.3d 370, 381 (8th Cir. 2000) (internal quotation marks omitted).
The employee "need not invoke the FMLA by name in order to put an employer on
notice." Id. "Our cases instruct that the adequacy of an employee's notice requires
consideration of the totality of the circumstances and is typically a jury question."

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Murphy v. FedEx Nat'l LTL, Inc., 618 F.3d 893, 903 (8th Cir. 2010) (citation
omitted).
Viewing the evidence in a light most favorable to Rynders, we believe that a
genuine issue of material fact exists as to whether Williams received notice in his
official capacity but not as to whether he received notice personally. As stated earlier,
the suit against Williams in his official capacity is a suit against Garland County, and
crediting Rynders's testimony, Rynders informed the Road Department on September
12, 2008, of his exact medical condition, his debilitating symptoms resulting from the
condition, and likelihood that he would need to take intermittent leave in the future
to cope with the condition and receive treatment. See generally Sarnowski v. Air
Brooke Limousine, Inc., 510 F.3d 398, 401–02 (3d Cir. 2007). In addition, Rynders
specifically referenced the FMLA and repeatedly requested information regarding
how to properly take leave at that time and over the ensuing months, only to have the
Road Department deny his requests. Although Lampo testified that Rynders lost
interest in taking FMLA leave after learning it was unpaid, Rynders disputes this with
his own testimony. Since we must accept Rynders's statements as true, we hold that
Rynders has created a jury question on whether he provided sufficient notice to
Garland County starting on September 12, 2008.
By contrast, Rynders has failed to adduce sufficient evidence to create a factual
question on whether Williams personally received sufficient notice. Under Darby v.
Bratch, aggrieved plaintiffs may bring FMLA claims against public officials in their
individual capacities because the FMLA defines an employer as "'any person who
acts, directly or indirectly, in the interest of an employer to any of the employees of
such employer.'" 287 F.3d 673, 681 (8th Cir. 2002) (quoting 29 U.S.C. § 2611(4)(A)
(ii)(I)). Here, however, Rynders has failed to argue how Williams personally received
adequate notice and, given the undisputed record that he generally delegated the
operation of the Road Department to Maughan and Lampo, we decline to address this

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4Williams relied heavily on the findings and reasoning contained in the district
court's order when making his arguments. To the extent that Williams is advancing
any alternative grounds on which to affirm the district court, we decline to consider
them so that the district court may first address them.
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issue. Accordingly, the district court properly granted summary judgment in favor of
Williams in his individual capacity on Rynders's FMLA claims. 4
III.
For the foregoing reasons, we reverse in part and affirm in part. The district
court erred in granting summary judgment against Rynders on his First Amendment
claims against Williams. The district court also erred in granting summary judgment
against Rynders on his official-capacity claims against Williams under the FMLA.
The district court, however, properly granted summary judgment against Rynders on
his individual-capacity FMLA claims against Williams.
ERICKSEN, District Judge, dissenting in part.
Because I believe that the record would not support a finding that Rynders
provided timely notice, I respectfully dissent from that portion of the Court’s opinion
addressing the FMLA.
The statute and the regulations that create and define an employee’s rights
under the FMLA require the employee to give timely notice of the employee’s intent
to use the leave. If practicable, notice must be given in advance of an absence—30
days is the presumptively sufficient advance notice. 29 U.S.C. § 2612(e)(2)
(“[T]he employee . . . shall provide the employer with not less than 30 days’ notice [of
planned medical treatment].”). It is true that in emergencies it is not always possible
to give advance notice and the statute recognizes this reality. See id. (“[I]f the date
of the treatment requires leave to begin in less than 30 days, the employee shall

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5Rynders gave sworn testimony before the Garland County Quorum Court on
February 19, 2009, only a portion of which is part of the record before us. In support
of his argument that an issue of fact exists as to notice, he relies on an affidavit he
prepared in response to Williams’ motion for summary judgment.
-12-
provide such notice as is practicable.”); see also 29 C.F.R. § 825.302(a). Even then,
though, the employer is to be informed as early as possible, and almost always in a
day or two. 29 C.F.R. § 825.302(b) (“[I]t should be practicable for the employee to
provide notice of the need for leave either the same day or the next business day.”).
There is no dispute that on September 12, 2008, Rynders was issued a written
warning about being late to work. Whether Rynders thereafter provided sufficient
notice of his need for FMLA is a matter the parties dispute. But there is no dispute
that some of Rynders’ 20 sick days, and at least some (enough that the employer
issued a written warning) of the 52 times he was tardy in 2008, occurred before
September 12. Indeed, Rynders does not claim that he did anything at all before
September that would have put the Road Department or Williams on notice that he
needed FMLA leave, intermittent or otherwise. 5
Even if an employee is entitled to FMLA leave, and even if that leave is
intermittent, the entitlement does not extend to random, unannounced leave or
tardiness with no notice at all. Intermittent does not mean retroactive or random at the
employee’s discretion. See Spangler v. Fed. Home Loan Bank of Des Moines, 278
F.3d 847, 853 (8th Cir. 2002) (“[T]he FMLA does not provide an employee suffering
from depression with a right to ‘unscheduled and unpredictable, but cumulatively
substantial, absences’ or a right to ‘take unscheduled leave at a moment’s notice for
the rest of her career.’” (quoting Collins v. NTN-Bower Corp., 272 F.3d 1006, 1007
(7th Cir. 2001))). Nothing in the record indicates that Rynders ever—before or after
September 12—gave advance notice, or even “such notice as is practicable” after the
fact, that he had a serious health condition that would cause him to be unable to notify
the County on any given occasion of his expected time of arrival. And, but for an

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absence from January 8 to12, he does not claim to have given advance or remotely
contemporaneous notice that his many absences were due to such a condition. This
is not in keeping with the letter or spirit of the FMLA.
FMLA leave is a type of “unusual and privileged absence” and an employer
must be made aware that an employee may need that sort of absence. Murphy v.
Fedex Nat’l, 618 F.3d 893, 900 (8th Cir. 2010) (internal quotation marks omitted).
“To permit otherwise would enable an employee to blind-side her employer by taking
a generic leave request and retroactively transforming it into an FMLA claim.” Id.
Rynders “put the statute in play” only after being reprimanded for excessive tardiness.
Even assuming that Rynders’s self-described medical ailments would be
sufficient to persuade a jury that he had a serious medical condition sufficient to
trigger FMLA protection—as opposed to ordinary sick leave—his FMLA claims fail,
in my opinion, because he has not produced evidence sufficient to persuade a jury that
he gave statutorily adequate notice. I would affirm the district court’s dismissal of the
FMLA claims.
______________________________

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