Ralph Gates, III v. USPS
OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Eric L. Clay, Circuit Judge; Helene N. White, Circuit Judge and Joseph M. Hood, Authoring U.S. District Judge for the Eastern District of Kentucky.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1081n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RALPH GATES, III
Plaintiff - Appellant
UNITED STATES POSTAL SERVICE
Defendant - Appellee.
Oct 16, 2012
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
Before: CLAY and WHITE, Circuit Judges; and HOOD, District Judge.*
HOOD, District Judge. Plaintiff-Appellant Ralph Gates, III, appeals from the judgment
entered in favor of the Defendant-Appellee the United States Postal Service by the district court on
Gates’ interference and retaliation claims under the Family and Medical Leave Act (“FMLA”).
Gates argues that the district court erred when, with the assistance of an advisory jury pursuant to
Fed. R. Civ. P. 39(c)(1), it found that Gates’ employment would have been terminated regardless of
the exercise of his rights under the FMLA because he had an excessive number of unscheduled
absences unrelated to his FMLA leave. For the reasons that follow, we affirm the district court’s
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
Appellant Gates brought this action against Appellee USPS, alleging that USPS terminated
him in violation of the FMLA (Count 1); terminated him in retaliation for exercising his rights under
the FMLA (Count 2); terminated him in violation of public policy under Ohio law (Count 3); and
violated the wage and labor laws by failing to pay him for required work hours. (Count 4). The
district court entered summary judgment for USPS to Counts 3 and 4 of the Complaint, but found
that genuine issues of material fact precluded summary judgment on Counts 1 and 2, the FMLA
The bench trial commenced on May 17, 2010, with the assistance of an advisory jury of
twelve people pursuant to Fed. R. Civ. P. 39(c)(1). At the conclusion of the case, the advisory jury
returned a verdict for USPS. The advisory jury unanimously determined that, although Gates
“proved by a preponderance of the evidence that [USPS] interfered with his right to take unpaid
leave from work under the FMLA or retaliated against him because he opposed a practice made
unlawful by the FMLA,” USPS also showed by a preponderance of the evidence “that [Gates] would
have been terminated from his job even if he had not taken FMLA leave.” [R. 39, 40, Verdict,
Interrogatory 1, 2]
The district court incorporated specific findings of fact into the Amended Judgment, as
required under Fed. R. Civ. P. 52 (a)(1), and adopted the advisory jury’s verdict. Gates appeals from
the Amended Judgment.
Gates was employed as a Transportation Networks Specialist by USPS. USPS approved
Gates for intermittent FMLA leave due to gout in May 2006. Gates’ certification in support of his
FMLA leave provided that he might need to miss one (1) to five (5) days of work per week
depending on his gout pain.
Evidence at trial showed that Gates had a history of attendance issues involving unscheduled
absences predating his application for FMLA leave. Following his application for FMLA leave,
Gates continued to have unscheduled absences, some of which were related to his FMLA-certified
condition, but many were not.
In order to demonstrate that his absences were due to his FMLA-certified condition, Gates
was required to call in to the Interactive Voice Response (“IVR”) telephone system to report
unscheduled absences. USPS also required its employees to complete PS Form 3971 to request
approval for absences, whether scheduled or unscheduled. Supervisors were responsible for
approving leave requests for pay purposes, while FMLA coordinators approved or disapproved
FMLA leave requests. When an employee sought FMLA leave for a particular condition, an FMLA
case number for that request was generated. By using case numbers, USPS protected employees’
privacy by avoiding disclosure of their medical condition, and attempted to accurately track
employees’ usage of FMLA leave. When an employee with an existing FMLA case number called
in to the IVR system for FMLA leave, the employee was supposed to provide that number. If an
employee with an approved FMLA condition did not provide the employee’s case number or the
system improperly recorded it, the employee could simply write his or her FMLA number on his or
her leave slip, which the employee would submit upon returning to work. An employee who called
in to the IVR system and requested FMLA leave but did not provide a case number indicated to the
computer system that the employee did not have an approved FMLA condition on file, and that the
employee needed to complete the paperwork necessary to receive FMLA coverage. Consequently,
the computer system would generate an FMLA “packet,” which contained documents that had to be
completed in order for the employee to obtain FMLA coverage. The cover letter of the packet
informed the employee that if the absence was related to a condition for which the employee already
had been approved for FMLA leave, the employee had to contact the local FMLA coordinator within
five days. Employees could contact the FMLA coordinator in person, by email or by telephone. If
an employee did not respond to a packet or put the FMLA case number on the employee’s leave slip,
the FMLA coordinator could not ascertain whether the absence was covered by the employee’s
existing FMLA-approved condition, meaning that the leave could not be approved as FMLA
Between 2006 and 2008, Gates was subject to disciplinary actions regarding his unscheduled
absences. Gates and his representative from the National Association of Postal Supervisors entered
into several settlement agreements to resolve the disciplinary actions. Many of the absences forming
the basis for Gates’ discipline were not related to his FMLA-certified condition. However, in other
circumstances, Gates failed to comply with the procedure set forth by USPS, so that the FMLA
requests were disapproved by the FMLA coordinators, rather than by Gates’ supervisors, for failure
to write his FMLA case number on his leave slips or to respond to the FMLA packets issued to him.
Gates often did not provide his FMLA case number (as required) when he did call in to the IVR
system, and received at least sixteen different FMLA packets in 2007 and 2008. Gates did not
contact the FMLA coordinator in response to any of these packets. Gates often neglected to write
his FMLA case number on his leave slips, even after meeting with FMLA coordinators to discuss
Nonetheless, many of the absences forming the basis for these disciplinary actions were
absences for which Gates had not requested FMLA leave. On February 11, 2008, Gates received
another Letter of Warning in Lieu of a 14-Day Suspension. During the time period covered by this
letter of warning, Gates had twenty-six absences. On two of those, he was absent without leave. He
did not request FMLA leave for two tardy appearances on September 20, 2007 and October 1, 2007.
Gates did not call in to report fifteen of the twenty-six absences included in the letter of warning,
despite agreeing to do so in an earlier September 2007 settlement agreement. When Gates did call
in and request FMLA leave, he failed to follow proper procedures, so that the FMLA requests were
disapproved by the FMLA coordinators for failure to write his FMLA case number on his leave slips
or to respond to the FMLA packets issued to him.
USPS issued a notice of proposed removal to Gates on October 7, 2008. The notice of
proposed removal identified sixteen unscheduled absences over a thirteen-week period. Four of the
absences identified in the notice were for emergency annual leave requested for transportation
problems not related to FMLA leave. Gates was absent without leave for an entire day on June 27,
2008. Only three of the sixteen absences identified on the notice of proposed removal were absences
for which Gates had requested FMLA leave that had been disapproved. The remaining thirteen
absences were not covered by the FMLA, and Gates never requested FMLA leave for those absences.
Gates did not call in to notify USPS about seven of the sixteen unscheduled absences. On December
10, 2008, USPS issued a decision letter, and terminated Gates’ employment effective January 1,
The district court found that neither of the supervisors involved in the termination decision
terminated Gates in retaliation for his use of FMLA leave and that those supervisors would have
terminated Gates whether or not he took FMLA leave. Pennington, who made the decision to
terminate Gates, testified that she approved the proposed removal because Gates had exhibited a
pattern of not showing up, calling in late or failing to call in at all during the entire time he had
worked for her, beginning sometime in 2002 or 2001. Lindsey testified that she began disciplining
Gates for his attendance problems in 2005. She requested Gates’ termination because “Mr. Gates
did not improve his attendance or absences. He was constantly absent, late, AWOL, emergency
annual.” [R. 54, Tr., Lindsey Test., Page ID # 1187.] The district court ultimately found that
“[Gates] failed to prove that his termination was related to FMLA and that Defendant proved by a
preponderance of the evidence that [Gates’] termination was justified and due to excessive
unscheduled absences not related to the FMLA.” [R. 47, Amend. J., Page ID # 893.] The court then
entered judgment for USPS.
This Court reviews “the factual findings of the district judge in a bench trial for clear error,
and the legal findings de novo.” Taylor Steel, Inc. v. Keeton, 417 F.3d 598, 604 (6th Cir. 2005). “A
district court’s factual findings are clearly erroneous if, based on the entire record, we are ‘left with
the definite and firm conviction that a mistake has been committed.’” Shelby Cnty. Health Care
Corp. v. Majestic Star Casino, 581 F.3d 355, 364–65 (6th Cir. 2009) (quoting Sanford v. Harvard
Indus. Inc., 262 F.3d 590, 595 (6th Cir. 2001)). “It is the appellant who must shoulder the burden
of proving such a mistake, and this burden is not met merely by demonstrating a conflict in the
testimony, nor by seeking to redetermine the credibility of witnesses.” Sawyer v. Arum, 690 F2d.
590, 592 (6th Cir. 1982) (internal citations omitted). A reviewing court may not “reverse a district
court’s findings of fact because the reviewing court is convinced that it would have decided the case
differently.” E.E.O.C. v. Yenkin-Majestic Paint Corp., 112 F.3d 831, 833 (6th Cir. 1997) (citing
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)). “[A] choice between two
permissible views of the weight of evidence is not ‘clearly erroneous.’” United States v. Yellow Cab
Co., 338 U.S. 338, 342 (1949).
There are two separate theories of recovery under the FMLA: the “interference” theory and
the “retaliation” theory. Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). The
“interference” theory is based on 29 U.S.C. § 2615(a)(1), which states that employers cannot
“interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided . . .” by
the FMLA. In order to state an interference claim pursuant to the FMLA, Gates “must show that (1)
he was an eligible employee; (2) [USPS] was an employer subject to the FMLA; (3) he was entitled
to leave under the FMLA; (4) he gave [USPS] notice of his intention to take FMLA leave; and (5)
[USPS] denied him FMLA benefits to which he was entitled.” Romans v. Mich. Dep’t of Human
Servs., 668 F.3d 826, 840 (6th Cir. 2012). Gates was an eligible employee and USPS was subject
to the FMLA, but the parties disputed the remaining two elements at trial.
The “retaliation” or “discrimination” theory arises from 29 U.S.C. § 2615(a)(2), which states
that an employer cannot “discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful by this subchapter.” To establish a prima facie case of
retaliation pursuant to the FMLA, Gates must establish that (1) he was engaged in an activity
protected by the FMLA; (2) the employer knew that he was exercising his rights under the FMLA;
(3) after learning of his exercise of FMLA rights, the employer took an employment action adverse
to him; and (4) there was a causal connection between his protected FMLA activity and the adverse
employment action. Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012) (quoting Killian v.
Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006)).
This Court applies the Title VII burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973), to both FMLA interference and retaliation
claims where, as here, there is no direct evidence of unlawful conduct. Donald, 667 F.3d at 762.
Thus, if the plaintiff establishes a prima facie case as to either an interference or retaliation claim
under the FMLA, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the adverse employment action. Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007).
If the employer satisfies its burden of production, the plaintiff must show that the proffered reason
is a pretext for unlawful discrimination. Id.
Gates argues that sufficient evidence at trial demonstrated that he provided USPS with all
of the notice necessary for his absences, either by written note or by using the call-in procedure, and
that the absences for which FMLA leave was denied were the sole basis for termination of his
employment, demonstrating an interference claim. Gates argues that the district court erred by
finding, contrary to the advisory jury’s determination, that USPS had not retaliated against Gates for
exercising his FMLA rights, and that the district court did not make a finding regarding whether
USPS interfered with Gates’ FMLA rights. In support of his argument, Gates states that he provided
all of the evidence necessary to obtain FMLA certification for 20 of his absences referenced in the
2008 letter of warning, that the district court ignored evidence that his absences in 2005 were
eventually approved as FMLA leave for a family member, and that USPS expunged his disciplinary
letters received prior to 2007, and, therefore, the district court erred in considering these absences.
Finally, Gates argues that, in light of Cavin v. Honda of America Mfg., Inc., 346 F.3d 717, 723 (6th
Cir. 2003), “employers cannot deny FMLA relief for failure to comply with their internal notice
However, Gates makes no arguments challenging the district court and advisory jury’s
finding that Gates’ termination was justified and due to excessive unscheduled absences not related
to FMLA. Thus, Gates presents arguments that are simply irrelevant to the inquiry facing this Court.
In Cavin, the court concluded that the employer violated the FMLA because plaintiff was — in any
event — terminated for failing to properly follow his employer’s “internal procedural requirements
that [were] more strict than those contemplated by the FMLA.” Id. at 718, 720. By contrast, Gates
would have been terminated due to excessive unscheduled absences unrelated to his FMLA leave,
regardless of the exercise of his FMLA rights or his compliance with internal USPS procedures
related to FMLA leave. Accordingly, Cavin does not apply to the instant matter.
While Gates argues that the district court ignored the advisory jury’s findings1, the district
court explicitly adopted the jury’s findings by stating that it “finds that the jury’s findings are in
accordance with the findings of fact made by the [district] [c]ourt, thus, the [c]ourt adopts the
[a]dvisory [j]ury’s [v]erdict.” [R. 47, Amend. J., Page ID # 893.] Thus, the district court agreed with
the advisory jury’s findings in Interrogatory One that a preponderance of the evidence demonstrated
Nonetheless, “[t]he district court was not required to accept the jury’s verdict; in fact, the
district court was required to make independent findings of fact when trying a case with an advisory
jury.” Hickory Specialties, Inc. v. Forest Flavors Int’l, Inc., 215 F.3d 1326, 2000 WL 687681, at
*7 (6th Cir. 2000) (unpublished table decision). “In all actions tried upon the facts without a jury
or with an advisory jury, the court shall find the facts specially and state its conclusions of law
separately.” Fed.R.Civ.P. 52(a)(1).
that USPS interfered with Gates’ FMLA rights or retaliated against him. In other words, the district
court and the advisory jury agreed that Gates succeeded in proving a prima facie FMLA case.
However, while Gates’ ill-fated analysis ends there, the inquiry does not. The district court
and advisory jury also found, pursuant to the burden-shifting framework set out in Douglas, 667 F.3d
at 762, for interference and retaliation claims, that Gates would have been terminated from his job
even if he had not taken FMLA leave. The non-discriminatory basis for his termination—his
excessive unscheduled absences—were not pretext for his termination. Thus, both the advisory jury
and the district court determined that judgment should be entered in favor of USPS. As the district
court concluded, Gates ultimately “failed to prove that his termination was related to FMLA[,] and
[USPS] proved by a preponderance of the evidence that [Gates’] termination was justified and due
to excessive unscheduled absences not related to FMLA.” [R. 47, Amend. J., Page ID # 893.]
Thus, Gates’ assertion that sufficient evidence was presented at trial in support of his prima
facie case is true, as the district court shifted the burden to USPS to articulate a legitimate, nondiscriminatory reason for terminating Gates’ employment. However, Gates neglects to point to any
evidence or make any argument that his termination was not justified based on his excessive
unscheduled absences or that it was pretextual. Rather, the evidence submitted at trial supported that
(1) Gates had a history of unscheduled absences before receiving FMLA leave in 2006, (2) Gates did
not request FMLA leave for at least 4 of his unscheduled absences referenced in the Letter of
Warning that he received prior to his Proposed Removal, (3) Gates had only requested FMLA leave
for 3 of his 16 unscheduled absences occurring over a 13 week period that were referenced in his
Notice of Proposed Removal, and (4) Gates’ supervisors, Lindsey and Pennington would have
terminated Gates’ employment whether or not he took FMLA leave. Thus, we are not persuaded that
the district court’s factual finding that termination was justified and due to excessive unscheduled
absences unrelated to his FMLA-certified condition was clearly erroneous and we decline to disturb
the verdict in favor of USPS.
Even considering Gates’ arguments relating to the district court’s fact findings made with
respect to his prima facie case, we see no reason to disturb the district court’s findings. Gates argues
on appeal that the district court ignored evidence showing that his absences in 2005 were eventually
approved as FMLA leave for care of a family member. Nonetheless, Gates admitted at trial that
several of his absences in 2005, which formed the basis for his January 2006 Letter of Warning, were
unrelated to his FMLA leave for care of a family member. Additionally, Gates argues that the
district court erred by considering the absences referenced in the disciplinary letters received prior
to 2007 because they had been expunged. Although USPS agreed in its settlement agreement, dated
September 14, 2007, to expunge the pre-2007 disciplinary letters if Gates complied with certain
terms, the parties disagreed as to whether Gates had complied with those terms and, thus, whether
the expungement was required or actually occurred. Nonetheless, there was more than sufficient
evidence entered at trial and relied upon by the district court to show that the unscheduled absences
prior to 2007 occurred and that Gates continued to exhibit attendance issues, thereby relieving USPS
of its duty to expunge those letters. Accordingly, we conclude the district court did not commit clear
error by relying on those findings of fact.
For all of the reasons stated above, we AFFIRM the district court’s judgment.
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