ANTHONY R. STUHLDRYER, Plaintiff-Appell ant/Cross-Appellee, vs. PERCIVAL SCIENTIFIC, INC., Defendant-Appellee/Cross-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-186 / 05-2120
Filed May 9, 2007
ANTHONY R. STUHLDRYER,
Plaintiff-Appellant/Cross-Appellee,
vs.
PERCIVAL SCIENTIFIC, INC.,
Defendant-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Darrell J. Goodhue,
Judge.
The plaintiff appeals following dismissal of his claims against the
defendant on summary judgment. AFFIRMED.
Gordon R. Fischer of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des
Moines, for appellant.
F.D. Chip Baltimore of Doran, Anderson & Baltimore, P.L.C., Boone, for
appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
2
VOGEL, P.J.
Anthony Stuhldryer was terminated by Percival Scientific in August 2004
after being placed on probation for excessive absences. He brought suit against
Percival, claiming among other things, that his termination violated the federal
Family and Medical Leave Act (FMLA). The district court, finding no genuine
issue of material fact, granted Percival’s motion for summary judgment. Our
review is for correction of errors at law. Walderbach v. Archdiocese of Dubuque,
Inc., __N.W.2d__, __ (Iowa 2007). We adopt the district court’s finding of facts,
application of the law and ruling, and therefore affirm pursuant to Iowa Court
Rule 21.29(1)(a), (d) and (e).
The FMLA grants eligible employees as many as twelve weeks of leave
during a one-year period if, among other things, they have a “serious health
condition that makes the employee unable to perform the functions of the
position of such employee.” 29 U.S.C. § 2612(a)(1)(D). The Act prohibits an
employer from interfering with an employee's right to take medical leave, 29
U.S.C. § 2615(a)(1); and it prohibits an employer from retaliating against an
employee for exercising his or her rights under the Act. 29 U.S.C. § 2615(a)(2).
An employee is to provide his employer with 30 days notice or
as much notice as is practicable of the intention to use FMLA leave,
when the necessity for leave “is foreseeable.” 29 U.S.C. §
2612(e)(2). Less than 30 days notice is permissible for reasons
“such as because of a lack of knowledge of approximately when
leave will be required to begin, a change in circumstances, or a
medical emergency.” 29 C.F.R. § 825.302(a). Notice is required
“as soon as practicable,” meaning “as soon as both possible and
practical, taking into account all of the facts and circumstances in
the individual case.” 29 C.F.R. § 825.302(b). “This ordinarily . . .
mean[s] at least verbal notification to the employer within one or
two business days of when the need for leave becomes known to
the employee.” Id. If the need for FMLA leave is not foreseeable,
3
the employee “should give notice to the employer of the need for
FMLA leave as soon as practicable under the facts and
circumstances of the particular case.” 29 C.F.R. § 825.303(a).
Although “[a]n employer may also require an employee to
comply with the employer's usual and customary notice and
procedural requirements for requesting leave,” “failure to follow
such internal employer procedures will not permit an employer to
disallow or delay an employee's taking FMLA leave if the employee
gives timely verbal or other notice.” 29 C.F.R. § 825.302(d). The
acceptable ways for an employee to provide notice include, “in
person, by telephone, telegraph, facsimile . . . or other electronic
means.” 29 C.F.R. § 825.303(b).
Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th. Cir.
2002).
The district court found no genuine issue of material fact that Stuhldryer
failed to give Percival notice to reasonably apprise them that any of his absences
were due to a “serious health condition.” Although he asserted in this action that
his asthma was the qualifying serious health condition that caused him to miss
work, Stuhldryer admitted during his deposition that his asthma did not “have
anything to do with Percival and the lawsuit that’s filed here.” Nor do his absence
reports reflect that Stuhldryer ever suggested he suffered from any illness other
than “not feeling well.” 1
We therefore agree with the district court’s conclusion that no genuine
issue of material fact exists as to Stuhldryer’s failed notification to Percival of any
serious health conditions or that FMLA might be applicable.
1
We affirm the
The final absence that led to his termination was a week-long vacation to the Sturgis
motorcycle rally in South Dakota. Stuhldryer’s absence report indicated he wanted to
use his accrued vacation and personal time plus twenty hours of leave without pay. He
was told before he left that he was not approved to take the leave without pay, and his
job was in jeopardy if he did not return when his accrued time was up. Ignoring the
warning, he was absent the entire week and was terminated.
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granting of summary judgment to Percival.
Percival cross-appeals the denial of their motion for sanctions pursuant to
Iowa Rule of Civil Procedure 1.413(1). However, we conclude the district court
did not abuse its discretion in declining to impose sanctions against Stuhldryer’s
attorney on the basis of filing a frivolous lawsuit. See Harris v. Iowa Dist. Court,
570 N.W.2d 772, 776-77 (Iowa Ct. App. 1997).
AFFIRMED.
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