Nyesha Swope v. Episcopal Foundation of Jefferson County

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-12984

____________________

NYESHA SWOPE,

ANDREA TURNER,

ANGELA BLAKE,

CLARA BUTLER,

MELANIE HOUGH, et al.,

Plaintiffs-Appellants-Cross Appellees,

versus

EPISCOPAL FOUNDATION OF JEFFERSON COUNTY,

d.b.a. St. Martin’s in the Pines,

Defendant-Appellee-Cross Appellant.

____________________

Appeals from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:21-cv-01392-AMM

____________________

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2 Opinion of the Court 24-12984

Before BRANCH, LUCK, Circuit Judges, and MORENO,* District

Judge.

MORENO, District Judge:

This appeal concerns the calculation of overtime pay and

the denial of protected leave during the Covid-19 pandemic at a

retirement and assisted living facility. Plaintiffs brought collective

and individual claims under the Fair Labor Standards Act and the

Family and Medical Leave Act. Following cross-motions for sum-

mary judgment, the district court granted each motion in part. Af-

ter careful review and with the benefit of oral argument, we find

no reversible error and affirm the district court’s ruling.

I. BACKGROUND

A. Factual Background

St. Martin’s in the Pines (“St. Martin’s”) is a retirement and

assisted living facility. During the height of the Covid-19 pandemic,

Nyesha Swope worked at the facility as a Certified Nursing Assis-

tant.

1. Payment Practices at St. Martin’s

During this time, St. Martin’s established a Covid-19 ward to

isolate residents who tested positive and instituted a series of finan-

cial incentives to encourage employees to take shifts, including

* The Honorable Federico A. Moreno, United States District Judge for the

Southern District of Florida, sitting by designation.

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24-12984 Opinion of the Court 3

shifts in the Covid-19 ward. Four incentives are relevant for pur-

poses of this appeal.

First, St. Martin’s paid Registered Nurses, Licensed Practical

Nurses, and Certified Nursing Assistants an extra $3 an hour and

caregivers an extra $2 an hour for work performed during the pan-

demic. We refer to this bonus as “add-on pay.” Second, employees

working in the Covid-19 ward earned an additional $2 per hour. We

refer to this bonus as “hazard pay.” Third, St. Martin’s paid a $100

bonus to care staff that picked up and fully completed an unsched-

uled eight-hour or twelve-hour shift on the weekends. We refer to

this bonus as the “weekend bonus.” Finally, St. Martin’s paid em-

ployees two one-time bonuses in July and December of 2020.

These “retention bonuses,” as we will refer to them, were “paid to

reward employees who stayed through the pandemic, but it was

not announced to employees in advance that they would receive

[the bonuses] if they remained employed or met any type of goal

or objective.”

In addition to these financial incentives, the long-standing

pay policies at St. Martin’s provide that non-exempt employees are

paid overtime compensation at “[o]ne-and-one-half times the reg-

ular rate of pay for actual hours worked in excess of 40 hours in a

one-week period.” It was further standard practice to require Cer-

tified Nursing Assistants like Swope to clock out for a meal break

at each shift.

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4 Opinion of the Court 24-12984

2. Swope’s Employment at St. Martin’s

St. Martin’s hired Swope on a full-time basis in May 2020. In

July 2021, Swope’s mother had a kidney transplant. The following

month, Swope submitted a letter to St. Martin’s to “put[] in [her]

two weeks’ notice,” thanked St. Martin’s “for the opportunity to

work” for the company, and gave “notice” that she would be going

on “PRN” status.

“PRN” stands for “per requested need,” meaning that such

employees work on an as-needed basis. Full-time employees could

apply, with advance notice, to transfer to this as-needed status. St.

Martin’s would then review the request and make a decision based

on availability of such positions, the applicant’s performance in

their current department, and the applicant’s attendance record.

At a meeting with Swope to discuss her letter, St. Martin’s

informed Swope that it would treat Swope’s two weeks’ notice as

a resignation and denied her request to transfer to as-needed status.

Swope then explained to St. Martin’s that she was requesting to

change her status because she needed to care for her sick mother.

Thereafter, St. Martin’s Corporate Compliance Officer told Swope

that St. Martin’s would have offered her FMLA leave if not for her

resignation.

3. Swope’s Lawsuit

She subsequently filed this lawsuit, asserting claims under

the Fair Labor Standards Act (“FLSA”) and the Family and Medical

Leave Act (“FMLA”).

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Under the FLSA, Swope brought a collective action against

St. Martin’s on behalf of herself and similarly situated employees,

alleging that the facility failed to pay all overtime compensation

owed. Specifically, she claimed that St. Martin’s calculated overtime

rates without including hazard pay and certain bonuses in employ-

ees’ regular rate of pay. Because the overtime calculations multi-

plied the employees’ regular base rate, she argued that St. Martin’s

failure to include hazard pay and other hourly bonuses in the regu-

lar rate resulted in an underpayment. She also alleged that alt-

hough she was required to clock out for meal breaks, she fre-

quently continued working during those unpaid breaks without

compensation.

Under the FMLA, Swope alleged that St. Martin’s interfered

with her attempt to take protected leave and retaliated against her

by terminating her employment when she sought to exercise her

FMLA rights.

The district court struck the original complaint as an imper-

missible shotgun pleading and ordered Swope to replead in com-

pliance with Federal Rules of Civil Procedure 8(a)(2) and 10(b), as

well as the Eleventh Circuit’s pleading standards.

In her amended complaint, Swope again asserted FLSA

claims on behalf of herself and other similarly situated employees,

seeking unpaid overtime compensation and liquidated damages.

She also maintained an individual claim for retaliatory termination

under the FMLA. Before any collective action was certified, Andrea

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6 Opinion of the Court 24-12984

Turner, another St. Martin’s employee, filed a written consent to

opt-in to the proposed class, thereby making her a party plaintiff.

4. St. Martin’s Recalculation of Employees’ Over-

time Compensation

Upon the initiation of the lawsuit, St. Martin’s sought pro-

fessional guidance from an accounting firm to determine whether

its method of calculating Covid-19-related compensation was accu-

rate.

A certified public accountant at the firm attested that St.

Martin’s payroll indicated that the facility paid overtime compensa-

tion for all hours worked in excess of forty in a workweek. How-

ever, the payroll system failed to incorporate the Covid-19 hazard

pay, the add-on pay, the weekend bonus, and the retention bonuses

into the employees’ “regular rate” when calculating overtime. The

accounting firm calculated the additional overtime compensation

owed based on the Covid-19 premiums paid to each affected em-

ployee. The retention bonuses were excluded from that calculation

because St. Martin’s classified them as discretionary. The account-

ing review concluded that twelve current and former employees,

including Swope, were owed additional overtime wages.

Accordingly, on September 2, 2022, St. Martin’s sent the fol-

lowing letter to its employees:

Dear Employee:

We recently learned that your pay was calcu-

lated incorrectly sometime during the years 2020

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24-12984 Opinion of the Court 7

and/or 2021. Specifically, we discovered that our pay-

roll system failed to include certain incentives and

premium pay related to Covid-19 in your overtime

rate. As a result, you were paid less overtime wages

than what was owed.

We apologize for this error. To comply with

our legal obligations and to account for any accrued

interest, we are paying you double the amount that

you were underpaid during this timeframe, less appli-

cable withholdings. You will receive either one or two

checks for the amount owed. The first check is a pay-

roll check for the amount of overtime wages owed,

less applicable withholdings. The second check is for

the additional payment to cover any interest owed.

The second check is not issued as a payroll check

which means St. Martin’s will not withhold any pay-

roll taxes from that amount.

Again, we apologize for this oversight. If you

have any questions, please feel free to contact [St.

Martin’s].

Counsel for St. Martin’s sent a letter to Swope’s counsel on

September 12, 2022 enclosing two checks, $1,124.30 payable to

Swope and $1,249.65 payable to Turner. The letter stated that these

amounts reflected the full recovery each would be entitled to if

they succeeded on all claims asserted in the amended complaint. It

also included a spreadsheet detailing the calculations used to reach

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8 Opinion of the Court 24-12984

those figures and requested that Swope’s counsel provide an ac-

counting of the costs and reasonable attorney’s fees so that St. Mar-

tin’s could issue payment for those amounts.

St. Martin’s also issued checks to other current and former

employees. Among the plaintiffs here, nine employees deposited

the checks that St. Martin’s issued. One employee, Kanesha

McDole, never received a check. Swope and Turner did not cash

their checks.

B. Procedural Background

Swope moved to conditionally certify two FLSA collective

actions—one based on the Covid-19 overtime payment claim and

another based on the automatic lunch break deduction claim. St.

Martin’s opposed conditional certification and moved for partial

summary judgment as to Swope’s FLSA claim, arguing that the

claims were moot because Swope and Turner had been paid all

amounts owed. The district court denied St. Martin’s motion for

summary judgment. It found that Swope and Turner had a live case

or controversy because they had not deposited their checks. Fur-

ther, the court held that additional discovery was necessary to con-

firm the amounts owed to putative class members. The court

granted Swope’s motion for conditional certification as to the

Covid-19 overtime payment class, but denied certification of the

automatic lunch break deduction class because no such claim was

pled in the amended complaint.

When addressing the scope of notice to potential class mem-

bers, St. Martin’s asked the court to limit the class to employees

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24-12984 Opinion of the Court 9

who (1) received hazard pay for working in a Covid-19 ward, (2)

worked more than forty hours in the relevant week, and (3) had not

already been fully compensated by the September 2022 payments.

Swope and Turner sought a broader definition that would include

employees who received other incentive payments. The district

court largely adopted St. Martin’s proposed definition and author-

ized notice consistent with that ruling.

After notice issued, eleven former employees filed consents

to join the FLSA collective. One opt-in plaintiff was later dismissed

for her failure to participate in discovery, leaving ten opt-in plain-

tiffs.

Swope, Turner, and McDole—the only plaintiffs who did

not cash their checks—moved for partial summary judgment on

their FLSA claims. Although they challenged St. Martin’s decision

not to include the two retention bonuses in the overtime calcula-

tion, they nevertheless requested entry of judgment in the

amounts St. Martin’s conceded were owed, plus liquidated dam-

ages and attorney’s fees.

St. Martin’s moved to dismiss the opt-in plaintiffs and to de-

certify the collective action. It also sought summary judgment on

all claims. St. Martin’s argued that the FLSA claims were moot and

de minimis. As to Swope’s individual FMLA claims, it contended

that she had not properly requested leave.

The district court denied St. Martin’s motion to dismiss the

opt-in plaintiffs and directed that they be added as named plaintiffs.

It granted St. Martin’s motion to decertify the collective action and

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10 Opinion of the Court 24-12984

granted summary judgment as to the opt-in plaintiffs’ FLSA claims,

except as to McDole. The court further granted St. Martin’s mo-

tion for summary judgment as to Swope’s FMLA claims. Finally, it

granted summary judgment in favor of Swope, Turner, and

McDole’s FLSA hazard pay claim because it was undisputed that

St. Martin’s excluded the hazard pay in the overtime pay calcula-

tion. The court awarded judgment for the amount St. Martin’s

agreed it owed in September 2022 and ordered the facility to re-

issue the checks. The Plaintiffs filed a notice of appeal and St. Mar-

tin’s filed its notice of cross-appeal.

II. JURISDICTION 1

We cannot address the merits of this appeal without first de-

termining that we have jurisdiction to do so. See Taylor v. Appleton,

30 F.3d 1365, 1366 (11th Cir. 1994) (“[A] court must first determine

whether it has proper subject matter jurisdiction before addressing

the substantive issues.”).

“The primary limitation on [a litigant’s] appellate standing is

the adverseness requirement which is one of the rules of standing

peculiar to the appellate setting. Only a litigant ‘who is aggrieved

by the judgment or order may appeal.’” Knight v. Alabama, 14 F.3d

1534, 1556 (11th Cir. 1994) (quoting Dairyland Ins. Co. v. Makover,

1 After the parties submitted their notices of appeal and cross-appeal, we or-

dered supplemental briefing on the issue of whether Turner and McDole had

appellate standing. After briefing, we carried the jurisdictional question with

the case. No party contested Swope’s appellate standing, so we now answer

the jurisdictional question as to Turner and McDole.

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24-12984 Opinion of the Court 11

654 F.2d 1120, 1123 (5th Cir. 1981)). St. Martin’s submits that this

Court lacks jurisdiction to hear this appeal because the district

court granted Turner and McDole’s motion for partial summary

judgment and therefore, the adverseness requirement is not met.

While Swope, Turner, and McDole moved for partial sum-

mary judgment as to the amount St. Martin’s agreed it owed, they

continued to dispute whether that amount was the full amount to

which they were entitled. Swope, Turner, and McDole asked the

district court to order the inclusion of the two one-time bonuses

paid to employees in the calculation of the rate of pay. The district

court determined that the bonuses were not properly pled in the

complaint. It further held that the bonuses were discretionary, and

thus not part of the overtime calculation based on regular pay.

Turner and McDole are not adverse to the portion of the

order granting them partial summary judgment. They are, how-

ever, adverse to the court’s determination that the checks issued to

employees were for the proper amount. Accordingly, we have juris-

diction to hear Turner and McDole’s appeal. See Forney v. Apfel, 524

U.S. 266, 271 (1998) (“[A] party is ‘aggrieved’ and ordinarily can ap-

peal a decision ‘granting in part and denying in part the remedy

requested.’”) (quoting United States v. Jose, 519 U.S. 54, 56 (1996)).

III. STANDARD OF REVIEW

“We review de novo the resolution of cross-motions for

summary judgment.” Ramji v. Hospital Housekeeping Syst., 992 F.3d

1233, 1241 (11th Cir. 2021) (citation omitted). The Court applies

“the same legal standards that bind the district court, so we assess

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12 Opinion of the Court 24-12984

the evidence and all reasonable inferences we can draw from it in

the light most favorable to the non-moving party.” Id. We “may not

weigh conflicting evidence or make credibility determinations of

[our] own. If the record presents disputed issues of fact, [we] may

not decide them; rather, [we] must deny the motion and [the case

must] proceed to trial.” FindWhat Investor Grp. v. FindWhat.com, 658

F.3d 1282, 1307 (11th Cir. 2011) (citation omitted).

IV. DISCUSSION

Four issues are before us. First, whether the district court

erred in granting partial summary judgment to Swope, Turner, and

McDole on their FLSA overtime claims based on the previously is-

sued checks. Second, whether the court erred in granting summary

judgment to St. Martin’s on the remaining FLSA claims based on

its conclusion that the two retention bonuses were properly ex-

cluded from the overtime calculation. Third, whether the court

erred in granting summary judgment to St. Martin’s on Plaintiffs’

FLSA claim for unpaid work during lunch breaks. Finally, whether

the district court properly granted summary judgment to St. Mar-

tin’s on Swope’s FMLA interference and retaliation claims. We ad-

dress each issue in turn.

A. The District Court Properly Granted Partial Sum-

mary Judgment in Favor of Swope, Turner, and

McDole on their FLSA Overtime-Pay Claims

St. Martin’s argues that the district court erred in granting

summary judgment in favor of Swope, Turner, and McDole on

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their overtime-pay claim because their claim was moot and their

recovery was de minimis. Because we find that a live case or contro-

versy exists, and because the de minimis doctrine cannot properly

be applied to the facts of this case under the FLSA, we affirm the

district court’s summary judgment ruling in favor of Swope,

Turner, and McDole.

1. Swope’s, Turner’s, and McDole’s Claims Were

Not Moot

“Article III of the Constitution limits federal-court jurisdic-

tion to ‘cases’ and ‘controversies.’” Campbell-Ewald Co. v. Gomez, 577

U.S. 153, 160 (2016) (quoting U.S. Const., art. III, § 2). The Supreme

Court has “interpreted this requirement to demand that ‘an actual

controversy . . . be extant at all stages of review, not merely at the

time the complaint is filed.’” Id. (quoting Arizonans for Off. English

v. Arizona, 520 U.S. 43, 67 (1997) (alteration in Campbell-Ewald)). A

case is moot and must be dismissed “[i]f an intervening circum-

stance deprives the plaintiff of a ‘personal stake in the outcome of

the lawsuit.’” Id. at 160–61 (quoting Genesis Healthcare Corp. v.

Symczyk, 569 U.S. 66, 72 (2013)). But “[w]here one of the several

issues presented becomes moot, the remaining live issues supply

the constitutional requirement of a case or controversy.” Powell v.

McCormack, 395 U.S. 486, 497 (1969).

In this case, St. Martin’s tendered checks to employees in an

attempt to settle the case after Swope initiated her lawsuit. It is un-

disputed that Swope, Turner, and McDole’s checks were never

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14 Opinion of the Court 24-12984

cashed. The Supreme Court has explained that “an unaccepted set-

tlement offer . . . does not moot a plaintiff’s case.” Campbell-Ewald

Co., 577 U.S. at 165. Thus, St. Martin’s did not moot the case by

offering a settlement to the employees. This is especially true in the

context of FLSA claims, where proposed settlements must be ap-

proved for fairness by the district court. Lynn’s Food Stores, Inc. v. U.S.

Dep’t of Labor, 679 F.2d 1350, 1353 (11th Cir. 1982).

St. Martin’s mootness argument appears to rely, at least in

part, on its assertion that the checks it issued to employees repre-

sented full statutory relief. But mootness depends on whether we

can provide redress, Keister v. Bell, 29 F.4th 1239, 1250 (11th Cir.

2022), not whether a claim was improperly raised. Swope, Turner,

and McDole sought summary judgment for the partial amount

that St. Martin’s agreed it owed, but the employees never agreed

that the checks constituted everything that was owed to them. Thus,

a live case or controversy existed as to the amount owed to Swope,

Turner, and McDole under the FLSA.

St. Martin’s contention that the case is moot because the

three employees were the prevailing parties at summary judgment

is likewise unavailing. The district court was tasked with determin-

ing what St. Martin’s owed to the employees. It found that the two

retention bonuses were not properly pled in the amended com-

plaint, and that even if they were, they were discretionary and thus

excludable under the FLSA. Accordingly, the court held that “the

checks that St. Martin’s issued in September 2022 were for the cor-

rect amount of overtime wages and liquidated damages due and

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24-12984 Opinion of the Court 15

no plaintiff is entitled to a greater amount.” We are thus able to

grant relief to the employees as to the disputed amount of damages

owed, should they prevail. Accordingly, the court’s holding that

there was no genuine issue of material fact as to whether Swope,

Turner, and McDole were entitled to the amount that St. Martin’s

agreed it owed them does not make the case moot.

2. Swope’s, Turner’s, and McDole’s Overtime-

Pay Claims Were Not De Minimis

St. Martin’s further argues that the district court erred in

granting summary judgment to Swope, Turner, and McDole be-

cause their hazard pay FLSA claims are de minimis. This assertion is

likewise unavailing.

Under the FLSA, an employer need not pay employees for

otherwise compensable work if the time spent completing the

work is de minimis. See Anderson v. Mt. Clemens Pottery Co., 328 U.S.

680, 692 (1946); see also 29 C.F.R. § 785.47 (“In recording working

time under the Act, insubstantial or insignificant periods of time

beyond the scheduled working hours, which cannot as a practical

administrative matter be precisely recorded for payroll purposes,

may be disregarded.”). This rule comes into play when there are

“uncertain and indefinite periods of time involved of a few seconds

or minutes duration, and where the failure to count such time is

due to considerations justified by industrial realities.” 29 C.F.R. §

785.47. But this rule does not permit employers to “arbitrarily fail

to count as hours worked any part, however small, of the em-

ployee’s fixed or regular working time or practically ascertainable

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16 Opinion of the Court 24-12984

period of time he is regularly required to spend on duties assigned

to him.” 29 C.F.R. § 785.47.

St. Martin’s does not argue on appeal that this case involves

small, incalculable blocks of unrecorded time. Nor does it explain

to the Court why such time need not be counted. Thus, we cannot

fit the facts of this case into the narrow exception articulated in

Anderson and § 785.47. However, St. Martin’s does not limit its ar-

gument to the application of the statute. Rather, it urges us to find

that the employees’ claims are de minimis under common law and

equitable doctrine. It argues that under de minimis non curat lex, this

Court need not involve itself with “trifles” asserted by Swope,

Turner, and McDole.

In Sandifer v. U.S. Steel Corp., the Supreme Court acknowl-

edged that some courts sought to “mitigate” the difficult task of

applying the narrow exception articulated in Anderson “by invoking

the doctrine de minimis non curat lex (the law does not take account

of trifles).” 571 U.S. 220, 233 (2014). It noted that while “the roots

of the de minimis doctrine stretch to ancient soil, its application in

the present context began with Anderson.” Id. The Supreme Court

explained, however, that the doctrine itself “does not fit comforta-

bly within the statute at issue here, which, it can fairly be said, is all

about trifles.” Id. at 234 (emphasis in original). Finally, the Court ex-

plained that post-Anderson, the Department of Labor has enacted

regulations that are more stringent than those expressed in Ander-

son. Id. at 234 n. 8 (citing 29 C.F.R. § 785.47).

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Under Sandifer, Anderson, and the Department of Labor’s

regulations, we cannot find that the de minimis common law doc-

trine applies to the facts of this case. If we were to hold that the

employees’ claims were de minimis based on common law princi-

ples, we would frustrate the purpose of the FLSA, which was cre-

ated to protect the “trifles” St. Martin’s asks us to ignore. See San-

difer, 571 U.S. at 234. This is not to say that this Court will never

find FLSA claims to be de minimis—Anderson and its progeny very

clearly carve out instances wherein that would be permissible. See

Anderson, 328 U.S. at 692. But as we determined above, the facts of

this case do not fit into those exceptions. Accordingly, we find that

Swope’s, Turner’s, and McDole’s claims are not de minimis and af-

firm the district court’s summary judgment ruling in favor of these

three employees.

B. The District Court Did Not Err in Granting Summary

Judgment for St. Martin’s on the Remaining FLSA

Overtime-Pay Claims

The resolution of the remaining claims for overtime wages

and liquidated damages depends on whether the two retention bo-

nuses should have been included in the overtime calculation. The

district court held that St. Martin’s exclusion of the retention bo-

nuses was proper for two reasons. First, it determined that the re-

tention bonuses were not pled in the complaint and the time to

amend had passed. Second, it found that even if the retention bo-

nuses were pled in the complaint, those bonuses were discretion-

ary, such that they were excludable under Section 207(e)(3).

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18 Opinion of the Court 24-12984

As to the first holding, the employees argue that while

amendment through argument is generally improper, they were

not attempting to assert a different theory of recovery at summary

judgment. Rather, they state that it was not until discovery pro-

gressed that they learned the different terms St. Martin’s used to

refer to the Covid-19 premiums.

Our reading of the amended complaint indicates that

Swope’s claims for overtime underpayment were centered on the

add-on pay (the extra $2 or $3 per hour during the pandemic) and

the hazard pay (the extra $2 per hour for employees working in the

Covid-19 ward). The amended complaint alleges that employees

“were promised [Covid-19] Ward pay at a rate higher than their

general rate of pay.” Swope states that her base rate of pay was

$11.40 per hour and that St. Martin’s implemented a policy to pay

employees “an additional $5.00 per hour,” for working in the

Covid-19 ward. 2 She states that she worked overtime at St. Martin’s

and that “many of those hours were worked at the [Covid-19] Ward

rate of pay, which was at a rate of $16.40 per hour.” She further

alleges that “regardless of whether [she] was working in the [Covid-

19] Ward when she worked overtime for Defendant, Defendant

paid all of her overtime hours at an overtime rate based upon her

lower $11.40 rate of pay.”

2 The $5 total derives from combining the add-on pay ($3 per hour for Swope

as a Certified Nursing Assistant) and the hazard pay ($2 per hour when work-

ing in the Covid-19 ward).

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Thus, Swope’s amended complaint clearly makes allegations

regarding St. Martin’s failure to compensate her for the add-on pay

and the hazard pay when calculating her overtime compensation.

Swope’s argument that she was not seeking to exceed the scope of

her complaint because the amended complaint seeks to have all of

the COVID premium pay offered by St. Martin’s included in the

calculation of the overtime pay falls short.

This is not a case wherein the complaint refers to the reten-

tion bonuses by the wrong title. The complaint says nothing about

the two retention bonuses and mentioning them in motion prac-

tice does not amend the complaint. To do so, Swope would have

needed to show good cause under Fed. R. Civ. P. 15(a). She never

attempted to do so, and we cannot allow such an amendment now

on appeal. See Jones v. Lumberjack Meats, Inc., 680 F.2d 98, 101 n.5

(11th Cir. 1982) (explaining that a party cannot raise new issues on

appeal in the absence of a “miscarriage of justice”).

Accordingly, we affirm the district court’s holding in favor of

St. Martin’s on the remaining FLSA overtime-pay claims. Because

we find the district court properly concluded that Swope failed to

plead a claim for the retention bonuses, we do not reach the issue

of whether those bonuses were discretionary and excludable.

C. The District Court Did Not Err in Granting Summary

Judgment in Favor of St. Martin’s on Swope’s FLSA

Claim for Unpaid Work Incurred During Lunch

Breaks

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20 Opinion of the Court 24-12984

The district court held that even if Swope properly asserted

a FLSA claim for her lunch break underpayment, summary judg-

ment was nevertheless due for St. Martin’s because Swope was un-

able to produce enough evidence showing the amount and extent

of the work she performed for which she alleges she was improp-

erly compensated. Swope argues this conclusion was error; we dis-

agree.

“[I]n situations where the employer’s records cannot be

trusted and the employee lacks documentation, the Supreme

Court held ‘that an employee has carried out his burden if he

proves that he has in fact performed work for which he was im-

properly compensated and if he produces sufficient evidence to

show the amount and extent of that work as a matter of just and

reasonable inference.’” Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495

F.3d 1306, 1316 (11th Cir. 2007) (quoting Anderson 328 U.S. at 687).

If the plaintiff can meet her burden, the burden then shifts to the

employer to “bring forth either evidence of the precise amount of

work performed or evidence to negate the reasonableness of the

inference to be drawn from the employee’s evidence.” Id. (citing

Anderson, 328 U.S.at 687–88).

Assuming Swope sufficiently asserted an individual claim for

automatic break deductions, she failed to meet her initial burden

under Allen. Swope states that she has introduced evidence demon-

strating that she worked through a lunch break for which she was

not paid two or three times a week. She argues that this is enough

to survive summary judgment. Not so fast. The testimony she cites

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24-12984 Opinion of the Court 21

to on appeal illustrates our point. When asked how often she re-

ported her interrupted meal breaks, she stated that “[i]t could have

been like . . . I’m really not sure. Maybe two, three days out of the

week.” The district court correctly categorized this testimony as

“speculative.” Swope has not presented any evidence demonstrat-

ing how much of her unpaid breaks were spent working. She

merely states that she is “really not sure,” how many days a week

her breaks were interrupted. This does not rise to the level of “suf-

ficient evidence” that demonstrates “the amount and extent of

[her] work as a matter of just and reasonable inference.” Allen, 495

F.3d at 1316.

Swope posits that she, as the non-movant, did not bear the

burden at summary judgment. Generally, “[t]he moving party

bears the burden of production.” Shiver v. Chertoff, 549 F.3d 1342,

1343 (11th Cir. 2008) (citing Fickling v. United States, 507 F.3d 1302,

1304 (11th Cir. 2007)). If this burden is met, “the nonmoving party

must present evidence beyond the pleadings showing that a reason-

able jury could find in its favor.” Fickling, 507 F.3d at 1304. But as

this Court made clear in Allen, when employer records are unrelia-

ble, a FLSA plaintiff must at least show a genuine issue of material

fact about “the amount and extent of her work.” Allen, 495 F.3d at

1316. Swope has not met her burden under that standard to pro-

vide more than speculative evidence. Accordingly, the district court

properly granted summary judgment in favor of St. Martin’s on

Swope’s FLSA claim for unpaid overtime incurred during lunch

breaks.

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22 Opinion of the Court 24-12984

D. The District Court Did Not Err in Granting Summary

Judgment for St. Martin’s on Swope’s FMLA Retalia-

tion and Interference Claims

Swope appeals the district court’s summary judgment ruling

in favor of St. Martin’s on her individual FMLA retaliation and in-

terference claim. Because we find that she never gave adequate no-

tice to St. Martin’s of her need for FMLA leave, we affirm.

1. Interference

The FMLA allows employees to take leave for a variety of

reasons, including to care for a parent suffering from serious health

challenges. 29 U.S.C. § 2612(a)(1)(C). The Act makes clear that “a

covered employer may not interfere with, restrain, or deny the em-

ployee’s exercise or attempted exercise of her FMLA rights to cov-

erage, leave entitlement, notice, benefits continuation, and job res-

toration.” Ramji, 992 F.3d at 1241 (citing 29 U.S.C. § 2615(a)(1); 29

U.S.C. §§ 2601–2654; 29 C.F.R. §§ 825.100–825.803)).

An FMLA interference claim requires the employee to show

both that she was entitled to leave under the FMLA and that her

employer denied or interfered with that leave. Id. at 1242; see Munoz

v. Selig Enters., Inc., 981 F.3d 1265, 1274 (11th Cir. 2020). An em-

ployee establishes that she was entitled to take leave under the

FMLA by showing “she sought leave for a qualifying reason” and

gave adequate notice under the statute. Ramji, 992 F.3d at 1242.

There is no dispute that St. Martin’s is covered by the FMLA and

that Swope is eligible for FMLA leave. The parties further appear

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24-12984 Opinion of the Court 23

to be in agreement that Swope was qualified to take leave under

the Act to care for her mother. Accordingly, we turn first to notice.

“An employee’s notice of her need for FMLA leave must sat-

isfy two criteria—timing and content—both of which differ de-

pending on whether the need for leave is foreseeable or unforesee-

able.” White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1195

(11th Cir. 2015). We review first whether the content of Swope’s

notice was sufficient under the Act.

While an employee is not required to mention the FMLA

when providing notice to her employer, 29 C.F.R. § 825.301(b), the

content and information she must provide depends on whether the

need for leave is foreseeable or unforeseeable. Ramji, 992 F.3d at

1243. If it is foreseeable that the employee will need to take leave,

notice must be “sufficient to make the employer aware that the em-

ployee needs FMLA-qualifying leave, and [of ] the anticipated tim-

ing and duration of the leave.” 29 C.F.R. § 825.302(c). If it is unfore-

seeable, the employee only needs to “provide sufficient infor-

mation for [her] employer to reasonably determine whether the

FMLA may apply to the leave request.” Id. at § 825.303(b).

Swope met with St. Martin’s staff on August 23, 2021, regard-

ing her purported request for leave. Her mother’s kidney transplant

took place more than a month prior on July 12, 2021. We have

noted before that “an employee’s need for leave is foreseeable if it

is based on planned medical treatment.” White, 789 F.3d at 1196.

Here, Swope’s mother had a planned surgery that took place a

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24 Opinion of the Court 24-12984

month before she gave notice to St. Martin’s. Further, there is noth-

ing in the record suggesting that Swope’s mother experienced any

unforeseen medical complications or emergencies following the

surgery. We thus find that her need for leave was foreseeable, such

that she was required to make St. Martin’s aware of “the antici-

pated timing and duration of the leave.” 29 C.F.R. § 825.302(c).

Swope submitted a written letter to St. Martin’s that stated:

“I Nyesha Swope as of today 8/23/2021 I’m putting in my two

weeks notice to go PRN. Thanks for the opportunity to work with

you guys and I hope you all understand. Thanks in advance.” She

further met with the St. Martin’s human resources representatives

and told them that she wanted to “take some time off” and transfer

to as-needed status to care for her mother.

Construing these statements as a request for leave, we find

that the content of Swope’s request was insufficient under the Act.

These statements perhaps made St. Martin’s aware that Swope’s

need qualified under the FMLA and that the anticipated timing of

her leave was in two weeks. They fail, however, to provide St. Mar-

tin’s with the approximate duration of her requested leave. Stating

that she needed to take “some time off” is insufficient under the

FMLA’s requirements. Accordingly, her notice was inadequate, and

the district court properly granted summary judgment in favor of

St. Martin’s on her interference claim.

2. Retaliation

As for Swope’s retaliation claim, our holding is the same. Ad-

equate notice is a necessary element of retaliation under the FMLA

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24-12984 Opinion of the Court 25

when an employee’s need for leave is foreseeable. See White, 789

F.3d at 1196. Because Swope’s need for leave was foreseeable, and

because she failed to include the anticipated duration of her leave,

we affirm the district court’s ruling in favor of St. Martin’s on

Swope’s retaliation claim.

V. CONCLUSION

We find no error in the district court’s rulings.

AFFIRMED.