# Nyesha Swope v. Episcopal Foundation of Jefferson County

> Court of Appeals for the Eleventh Circuit · May 8, 2026

URL: https://www.frixlaw.com/law-library/cases/11323847

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** May 8, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

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## Opinion text

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NOT FOR PUBLICATION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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24-12984 Opinion of the Court 5

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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24-12984 Opinion of the Court 13

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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24-12984 Opinion of the Court 17

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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24-12984 Opinion of the Court 19

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11323847. Public record. Not legal advice.