Ryan Wesley Buckman v. McI World Com Inc.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RYAN WESLEY BUCKMAN,
Plaintiff - Appellant,
v.
MCI WORLD COM INC.,
Defendant - Appellee.
No. 08-16537
D.C. No. 2:06-CV-02005-DGC-
JJM
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted March 8, 2010
San Francisco, California
Before: HUG, REINHARDT and BYBEE, Circuit Judges.
Ryan Buckman appeals the district court’s grant of summary judgment in
favor of MCI on his claims that MCI wrongfully terminated him in violation of the
Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act
(“ADA”). He also argues that the district court erred by failing to appoint counsel
FILED
MAR 23 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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for him and failing to give him adequate notice under Federal Rule of Civil
Procedure 56. We affirm.
Under the FMLA, employees may take up to twelve weeks of time off for
medical reasons, 29 U.S.C. § 2612(a), and it is unlawful for an employer to
“interfere with, restrain, or deny the exercise of or the attempt to exercise” this
right to take approved leave, id. § 2615(a)(1). Buckman argues that MCI
terminated him in part because he took FMLA leave. The regulations interpreting
the FMLA state that an “employer may require an employee to comply with the
employer’s usual and customary notice and procedural requirements for requesting
leave, absent unusual circumstances.” 29 C.F.R. § 825.302(d). Here, it is
undisputed that MCI’s attendance policy required employees to call in before their
shift if they were going to be absent or tardy. Buckman concedes that on April 19,
2004, he called in forty-eight minutes after his shift began. He fails to offer any
evidence that he was unable to call in before his shift. MCI also presented
undisputed evidence that Buckman had received eleven previous warnings for
violating this and other MCI policies and had been on final warning when he failed
to call in before his shift. Buckman’s claim that he was subject to a more lenient
policy is defeated by the fact that he does not contend that the “more lenient
policy” excused him from calling in timely on days that he would be absent. His

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claim that MCI was on constructive notice that he was on FMLA leave lacks merit
because it is undisputed that his authorized leave expired on Friday, April 16, and
the FMLA allows an employer to require “an employee to comply with the
employer’s usual and customary notice and procedural requirements for requesting
leave, absent unusual circumstances.” 29 C.F.R. § 825.302(d).
Because the undisputed evidence establishes that Buckman was discharged
because he failed to call in timely on April 19 after being placed on final warning,
his claim that he was discharged as a result of his Hepatitis C also fails.
The district court did not err in failing to appoint counsel for Buckman. We
have held that “[m]otions for appointment of counsel under section 1915 are
addressed to the sound discretion of the trial court and are granted only in
exceptional circumstances.” United States v. McQuade, 647 F.2d 938, 940 (9th
Cir. 1981). Buckman presents no argument that his case met the exceptional
circumstances test.
Finally, the district court informed Buckman of his obligation under Rule 56
to produce authenticated documents to survive summary judgment as required by
Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). The court was not required to
provide further information about which documents Buckman should have
authenticated and submitted.

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AFFIRMED.

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