William Shaffer v. American Medical Association

Filing

Filed opinion of the court by Judge Williams. The judgment of the district court is REVERSED, and this case is REMANDED for further proceedings consistent with this opinion. Michael S. Kanne, Circuit Judge; Ann Claire Williams, Circuit Judge and John Daniel Tinder, Circuit Judge. [6346101-3] [6346101] [10-2117]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 10-2117
W ILLIAM S HAFFER,
Plaintiff-Appellant,
v.
A MERICAN M EDICAL A SSOCIATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CV 01656—Amy J. St. Eve, Judge.

A RGUED N OVEMBER 30, 2010—D ECIDED O CTOBER 18, 2011

Before K ANNE, W ILLIAMS, and T INDER, Circuit Judges.
W ILLIAMS, Circuit Judge. The American Medical Association was not immune to the downturn in the economy.
Budget cuts mandated that some employees lose their
jobs, including at least one in the department where
William Shaffer worked. Fortunately for him, or so
it seemed, his supervisor was leaning toward letting
another person go. But soon after Shaffer requested
leave in light of upcoming surgery, that changed. His

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supervisor decided that Shaffer would now be the employee let go in the department, and Shaffer contends
that decision was prompted by his request for leave
and was therefore improper under the Family and
Medical Leave Act. The AMA maintains that the leave
request had nothing to do with its decision, and a jury
might well agree. But we agree with Shaffer that a reasonable jury could also find in his favor, and we reverse
the grant of summary judgment against him.

I. BACKGROUND
At this stage in the proceedings, we recount the narrative that follows in the light most favorable to Shaffer
since he was not the party who moved for summary
judgment. The AMA first hired Shaffer in 1999. He resigned a year later, but the AMA rehired him in 2004
as a contract employee, and Michael Lynch hired him as
a full-time employee in 2005. By 2008, Shaffer had
become AMA’s Director of Leadership Communications.
His duties in that role included writing speeches and
editorials, supervising a staff of three speech writers,
and signing off on final speeches.
In August 2008 the economic downturn began to concretely affect the AMA. The organization asked all its
departments to reduce their 2009 budgets by at least 3%
below the previous year’s budgets. At first, Lynch
reduced his budget by eliminating an annual conference.
The next month, in response to direction from the AMA
board, Marietta Parenti, AMA’s Chief Marketing Officer,

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directed department heads to consider all options to
further reduce budgets, including the elimination of
positions. Parenti and Lynch ultimately decided they
needed to downsize by at least one position in Lynch’s
department.
On October 28, 2008, Parenti emailed Lynch to ask for
his recommendation regarding the elimination of a position. Lynch responded that afternoon, beginning his
email by stating, “I know you want closure on this
issue tomorrow . . . .” It was already Lynch’s plan
to eliminate the position of Peter Friedman, the Communications Campaign Manager, because his responsibilities had changed drastically and the AMA had
stopped work on one of his core campaigns, and Lynch
had previously told Parenti that he had planned to cut
Friedman’s position. Parenti’s October 28 request sought
Lynch’s recommendation about whether to terminate
Shaffer as well, and Lynch wrote in his email that he did
not think cutting additional positions beyond Friedman’s
was in the AMA’s best interest and detailed why he
thought downsizing the department even more would
be a bad idea.
The AMA held its Interim Meeting in early November of 2008. On Thursday, November 20, 2008, Shaffer
notified Lynch that he would be having knee replacement surgery on January 12, 2009, that he would be
taking four to six weeks of leave as a result, and that he
was setting up a claim for short-term disability benefits.
The Thanksgiving holiday fell the following week. On the
Sunday evening of the holiday weekend, November 30,

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Lynch sent Parenti a long email. He explained that he
was now of the mind that the AMA should eliminate
Shaffer’s position and retain Friedman. Lynch also wrote,
“The team is already preparing for Bill’s short-term
leave in January, so his departure should not have any
immediate negative impact.” He also gave Parenti his
“[a]pologies for this 11th hour change of heart.”
Lynch and AMA Human Resources Representative
Harvey Daniels notified Shaffer on Thursday, December 4,
2008 that the AMA was letting him go. Shaffer’s last day
on the AMA payroll was January 4, 2009.
On February 2, 2009, after receiving a letter from
counsel representing Shaffer, AMA’s in-house counsel,
Michael Katsuyama, met with Daniels and informed him
of possible litigation. On February 3, Daniels typed up
handwritten notes he had taken concerning earlier discussions with Lynch about eliminating Shaffer’s position. Daniels dated the typed notes November 25, 2008
and shredded his original notes. The typed document
states that the position was eliminated because Lynch
could accommodate having the speech writing staff
report directly to him, a layer of management would be
eliminated, and there had been decreased demand on the
speech writing staff. Lynch’s calendar did not reflect a
meeting with Daniels for November 25, though, and
Lynch testified in his deposition that he recalled that
he was still pondering which position to eliminate
over Thanksgiving weekend and had not made a decision as of November 25.
Also during the first few days of February, Daniels told
Lynch to prepare a memorandum for Lynch’s upcoming

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meeting with in-house counsel Katsuyama and to
describe in it his rationale for selecting Shaffer as the
employee to let go. Lynch typed the memorandum on
February 3 or 4, 2009, but he dated it November 21, 2008
and addressed it to Daniels. Lynch gave the memorandum to Katsuyama when they met.
Shaffer filed suit in federal court, and the district
court granted summary judgment in the AMA’s favor.
In May 2009, because of the economic environment,
the AMA ended its employment of approximately
100 additional employees, including Friedman.

II. ANALYSIS
Shaffer appeals the district court’s grant of summary
judgment against him on his claim that his termination
violated the Family and Medical Leave Act. The FMLA
guarantees employees twelve workweeks of leave for
serious health conditions, including the knee surgery
Shaffer had. See 29 U.S.C. § 2612(a)(1). The FMLA
forbids an employer from interfering with an employee’s right to take leave and return to his job and
also from retaliating against an employee who claims
benefits under the statute. 29 U.S.C. § 2615. We review
the district court’s grant of summary judgment in favor
of the AMA de novo, viewing all facts and drawing
all reasonable inferences in the light most favorable to
Shaffer, the nonmoving party. See Goelzer v. Sheboygan
Cnty., Wis., 604 F.3d 987, 992 (7th Cir. 2010).

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A. Waiver

It is not surprising that one of the pieces of evidence
on which Shaffer relies is Lynch’s November 30 email
notifying Parenti that he had decided Shaffer was the
employee to be let go. The AMA, however, maintains
that we cannot consider this email. In support, it points
us to the district court’s statement that it was not considering any facts that were not contained in the parties’ Rule 56.1 statements. That is certainly within a district court’s prerogative to do. See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809 (7th Cir. 2005) (“Local
Rule 56.1 requires specifically that a litigant seeking to
oppose a motion for summary judgment file a response
that contains a separate ‘statement . . . of any additional
facts that require the denial of summary judgment.’ ”);
Metro Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir.
2002) (“[W]e have emphasized the importance of local
rules and have consistently and repeatedly upheld a
district court’s discretion to require strict compliance
with its local rules governing summary judgment.”)
(quotation omitted). But that general statement by the
district court in no way supports the AMA’s argument that
we cannot consider the November 30 email in this case.
The district court’s opinion makes clear that the November 30 email was not something it had refused to consider. In fact, it spent an entire five-sentence paragraph in
the “Relevant Facts” section of its opinion detailing that
very email. The paragraph begins by stating, “On November 30, 2008, the day before Parenti’s deadline for making
a final decision, Lynch sent an email to Parenti that de-

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tailed his ‘11th hour change of heart’ that ‘perhaps we
should eliminate Bill Shaffer’s position and keep Pete’s for
now . . . .”, and it then spelled out much of the rest of the
email.
And although the AMA argues that Shaffer failed to
include the email in his Rule 56.1 statement, Shaffer
discussed the email in paragraph 12 of his Statement of
Additional Facts and also stated in that paragraph that a
true and accurate copy of the email was attached as
Appendix 6, which it was. Shaffer also specifically discussed the email on pages 4 and 5 of his Memorandum
in Opposition to the American Medical Association’s
Motion for Summary Judgment, and pointed to the key
passage he relied on, stating, “The email included the
justification that ‘The team is already preparing for
Bill’s short-term leave in January, so his departure
should not have any immediate negative impact.’ ”
Shaffer further argued on page 10 of his Memorandum
that the email did not mention the explanation asserted
by the AMA as the reason for the termination decision
during litigation, namely that Lynch could easily absorb
Shaffer’s responsibilities. Shaffer appropriately raised
the November 30 email before the district court, the
district court discussed it in its opinion, and there is no
reason Shaffer cannot point to it on appeal now.

B. Viable Family and Medical Leave Act Claim
The AMA also argues that Shaffer did not establish one
of the prerequisites for FMLA protection, that he worked
more than 1,250 hours for the AMA in the previous year.

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See 29 U.S.C. § 2611(2)(A)(ii). It is true that the parties’
Rule 56.1 statements of facts are silent as to this requirement. Yet the AMA admitted in its answer to Shaffer’s
amended complaint that he had worked there for over
1,250 hours the previous year, so there was no need
for Shaffer to raise the matter again.
With that hurdle cleared, we turn to the merits of
Shaffer’s claim. In doing so, we keep in mind that at the
summary judgment stage, “the judge’s function is not
himself to weigh the evidence and determine the truth
of the matter but to determine whether there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986); see also Kodish v. Oakbrook Terrace
Fire Prot. Dist., 604 F.3d 490, 507 (7th Cir. 2010) (reversing
grant of summary judgment where plaintiff’s claims
not so implausible that a reasonable jury could not find
in his favor).
There are two types of FMLA claims, those for interference and those for retaliation. The FMLA mandates
that an employer may not “interfere with, restrain, or
deny the exercise of or the attempt to exercise” any
FMLA rights. 29 U.S.C. § 2615(a)(1). In addition, the
FMLA contains an anti-retaliation provision, making it
“unlawful for any employer to discharge or in any
other manner discriminate against any individual for
opposing any practice made unlawful by this
subchapter.” 29 U.S.C. § 2615(a)(2). An employer does
not, however, violate the FMLA for failing to return him
to his former position after he returns from leave if
the employee would have been let go even if he had not

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taken the leave and the termination decision was
unrelated to the leave request. Goelzer, 604 F.3d at 993.
“The difference between a retaliation and interference
theory is that the first ‘requires proof of discriminatory
or retaliatory intent while [an interference theory]
requires only proof that the employer denied the
employee his or her entitlements under the Act.’ ” Id.
(citing Kauffman v. Federal Express Corp., 426 F.3d 880,
884 (7th Cir. 2005)). The interference and retaliation
claims here are closely linked, see Smith v. HOPE School,
560 F.3d 694, 701 (7th Cir. 2009), as Shaffer stated in his
memorandum in opposition to the AMA’s motion for
summary judgment; we do not find the interference
argument waived. Shaffer was eligible for FMLA protection, covered by the FMLA, and provided sufficient
notice of his intent to take leave. See Goelzer, 604 F.3d
at 993 (summarizing threshold FMLA interference claim
requirements). If Shaffer can demonstrate that the AMA
fired him to prevent him from exercising his right to
reinstatement in his position, he can succeed on an interference theory. See id. To succeed on a retaliation
theory, under the direct method applicable here, a
plaintiff survives summary judgment by “ ‘creating
a triable issue of whether the adverse employment action of which she complains had a discriminatory motivation.’ ” Lewis v. School Dist. #70, 523 F.3d
730, 741 (7th Cir. 2008) (quoting Rudin v. Lincoln Land
Cmty. Coll., 420 F.3d 712, 721 (7th Cir. 2005)).
As in Goelzer, then, the issue for us to determine in this
case is whether a reasonable jury could conclude that

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Shaffer’s exercise of his right to take FMLA leave was
a motivating factor in the decision to eliminate his position. See Goelzer, 604 F.3d at 995. The AMA maintains
that the decision to terminate Shaffer’s employment
had nothing to do with his FMLA request. Shaffer thinks
otherwise, and contends that a reasonable jury could
conclude the AMA terminated his employment because
he requested leave protected by the FMLA. We agree
with Shaffer that the evidence in the record, when interpreted in the light most favorably to him as we must at
this stage, supports that a reasonable jury could find
that the AMA chose him as the person in his department
to let go because he exercised his right to take FMLA leave.
As of October 28, 2008, Lynch had decided to eliminate
Friedman’s position and not Shaffer’s. Lynch even sent
an email to his supervisor detailing why he did not
think the elimination of any additional positions
beyond Friedman’s was in the AMA’s best interest.
Lynch also said in his deposition that downsizing Friedman’s position would be the “obvious choice” to anyone
looking at the situation from the outside since the
AMA was no longer proceeding with one of Friedman’s
core campaigns.
Three weeks later, however, Lynch changed his mind.
The only events of note in the interim were Shaffer’s
request for leave on November 20 and the early
November AMA Interim Meeting in Orlando. Shaffer
sent Lynch an email on Thursday, November 20 informing him that he would be having knee replacement
surgery in January and was setting up a claim for short-

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term disability benefits. When Lynch emailed Parenti on
November 30 that he had now decided to eliminate
Shaffer’s position and keep Friedman’s, he included the
comment that “[t]he team is already preparing for Bill
[Shaffer]’s short-term leave in January, so his departure
should not have any immediate negative impact.” A jury
could find that this statement, the change in the decision
of whom to terminate, and the timing of the new decision soon after Shaffer’s leave request support that
his request for leave led to his termination.
A jury might also give credence to Shaffer’s argument
that Daniels backdated a memorandum to make it appear that the decision to let him go was not influenced by
the leave request. See Brunker v. Schwan’s Home Serv.,
Inc., 583 F.3d 1004, 1008-09 (7th Cir. 2009) (backdating
of termination notice to a date before employee left
for treatment to avoid impression that condition influenced termination decision helped create issue for
trial); see also Lewis, 523 F.3d at 743. On February 3, 2009,
Daniels typed up a copy of handwritten notes he said
came from an earlier discussion with Lynch regarding
Shaffer’s termination. Daniels dated the typed notes
November 25, 2008, which he said was the same date as
his earlier handwritten notes. But Lynch had no recollection of a meeting that day with Daniels, nor did
his calendar reflect one.
The AMA emphasizes that November 25 came after
Shaffer requested leave. At first glance, a memorandum
dated after Shaffer requested leave would not seem to
support a theory that evidence had been manufactured

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to suggest that the leave request did not influence the
termination decision. However, viewed in the light
most favorable to Shaffer as we must, the record
supports a conclusion that when Daniels typed up
the notes in February, he was acting under the impression that the leave request had not come until November 26. Daniels stated in his deposition that he had
several conversations with Lynch, including one on
November 25 and another the next day. Daniels said
that Lynch raised Shaffer’s request for medical leave for
the first time during the November 26 conversation.
Daniels also said that Lynch told him during that conversation that he had just learned of the leave request.
The troubling fact that Daniels shredded his handwritten notes after learning of potential litigation also
could weigh in favor of Shaffer. A jury might conclude
from all this that Daniels had been trying to create a
paper trail.
A jury could also look to the different explanations
given at different times for Shaffer’s termination. See
Simple v. Walgreen Co., 511 F.3d 668, 671 (7th Cir. 2007)
(“The inconsistency is suggestive of pretext and thus
is evidence of discrimination . . . .”). The AMA points to
the early November Interim Meeting and maintains it
helped lead Lynch to change his mind about whom
to terminate, as it says Lynch had to fill in for Shaffer
to help a junior speech writer when Shaffer was unavailable, and also that Lynch was concerned about the
absence without explanation. Yet Lynch told Shaffer that
the termination decision had nothing to do with his
performance and did not mention any concern about

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the Interim Meeting, and Daniels testified in his deposition that he was not told of any problems with Shaffer
at the meeting or that Shaffer’s performance played
any role in the decision to terminate his employment.
Daniels’s typed-up notes state that the position was
eliminated because Lynch could accommodate having
the speech writing staff report to him, among other
things. In the November 30, 2008 email to Parenti, Lynch
justified his change in decision to terminate Shaffer
instead of Friedman by stating that Friedman had
evolved into a flexible utility man who could fill in the
gaps. This email said nothing about the Interim Meeting
or Lynch’s ability to absorb his responsibilities. And one
of the staff speech writers stated in his deposition
that Lynch told him Shaffer’s position had been
eliminated for another reason, that he had the highest
salary and largest cost.
Of course, a jury may well agree with the AMA that
Shaffer’s leave request had no impact on the termination
decision. One employee had to be let go in Shaffer’s
department, and he was certainly one of the candidates.
As the AMA argues, a jury might also view the mention
in Lynch’s email to Parenti that the team was already
preparing for Shaffer’s upcoming leave not as a reason
for terminating him, but as an explanation of its effect.
A jury might agree that Shaffer was absent during an
important time at the Interim Meeting and that the
absence there helped lead the AMA to select his position for elimination. And Daniels testified that he
dropped by Lynch’s office on November 25, which is a
reasonable explanation for why there was no appoint-

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ment in Lynch’s calendar for that day. He may have
then typed up his handwritten notes after he learned of
litigation and dated the document the date of his notes,
without any intent to have that date help support the
termination decision. The competing reasonable inferences that can be drawn from the record are not for
us to resolve at the summary judgment stage, however.
We are obligated to view the record in the light most
favorable to Shaffer and to refrain from weighing the
evidence or deciding which inferences to draw from
the facts. See Kodish, 604 F.3d at 507. Because a reasonable jury could find in Shaffer’s favor, we reverse
the grant of summary judgment against him.

C. Attorney-Client Privilege Protects Memorandum
We now address one more piece of evidence Shaffer
would like to use on remand, a memorandum the
district court ruled was protected by the attorneyclient privilege. The contents of the document did not
play into our analysis of whether summary judgment
was proper, but so there is no question on remand, we
address the privilege question now. The scope of the
attorney-client privilege is a question of law we review
de novo, while we review the district court’s findings
of fact and application of law to fact for clear error.
Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007).
The document in question is a one-page typewritten memorandum from Lynch that on its face is dated
November 21, 2008, and entitled “Elimination of staff
position.” The memorandum is addressed to Harvey

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Daniels, but Lynch testified in his deposition that he
typed up the memorandum in early February of 2009
for the sole intention of meeting with in-house attorney
Katsuyama and that he gave it only to Katsuyama.
The document was inadvertently turned over during
discovery, and the district court agreed with the AMA’s
subsequent assertion that the attorney-client privilege
protected it.
The attorney-client privilege “ ‘is the oldest of the
privileges for confidential communications known to the
common law.’ ” United States v. Jicarilla Apache Nation, 131
S. Ct. 2313, 2320 (2011) (quoting Upjohn Co. v. United States,
449 U.S. 383, 389 (1981)). Its purpose is “to encourage
full and frank communication between attorneys and
their clients and thereby promote broader public
interests in the observance of law and administration of
justice.” Upjohn, 449 U.S. at 389. For the attorneyclient privilege to attach to the memorandum, we have
summarized the requirements to be that the communication contained therein must have been made in confidence, in the connection with the provision of legal
services, to an attorney, and in the context of an attorneyclient relationship. United States v. BDO Seidman, LLP,
492 F.3d 806, 815 (7th Cir. 2007). The privilege is construed narrowly, and the burden is on the party seeking to
invoke the privilege—here, the AMA—to establish that
it applies. United States v. White, 950 F.2d 426, 430 (7th
Cir. 1991).
The communication was made in confidence and to an
attorney. Lynch created the memorandum for the sole

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purpose of meeting with in-house counsel Katsuyama.
Lynch created the document alone, did not discuss it
with anyone else, and gave the memorandum only to
Katsuyama in a meeting where only the two were present. Lynch therefore produced the memorandum in
confidence to an attorney.
The next question is whether the communication was
made in connection with the provision of legal services.
Shaffer argues that Lynch prepared the memorandum
only as a matter of standard procedure unrelated to
threatened litigation and that it was not in connection
with the provision of legal services. However, the
evidence in the record shows otherwise. Shaffer’s
counsel sent a letter to the AMA on January 21,
2009 stating that he intended to file suit for wrongful
termination of employment. Katsuyama received it on
February 2. Katsuyama then spoke with Daniels, and, as
a result, Daniels informed Lynch that Lynch would be
meeting with Katsuyama to discuss Shaffer’s termination and that he should prepare the document for that
meeting. Shaffer points out that Daniels denied telling
Lynch that Shaffer was taking legal action. But although
Daniels denied making that specific statement, Daniels
also testified he was aware that Lynch assumed a
lawsuit was pending or threatened. Lynch, the more
important person in this inquiry, believed he was providing the memorandum in connection with the provision of legal services. When asked why he drafted the
memorandum, he testified that Daniels told him it appeared there would be some litigation regarding the
elimination of Shaffer’s position, and that in preparation

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for the meeting with in-house counsel, he should put in
writing his recollection of his decision-making. We
agree with the district court that Lynch wrote the memorandum and gave it to Katsuyama in connection with
the provision of legal services.
Shaffer also contends that the memorandum was not
produced in the context of an attorney-client relationship. Although Human Resources Representative Daniels
asked Lynch to create the memorandum and it was
addressed to Daniels, Lynch explained that the context of
Daniels’s request was that “there was going to be some
legal action regarding the elimination of Shaffer’s position” and that Lynch needed to meet with the AMA’s
attorney. Lynch also understood that he created the
document for the sole purpose of meeting with inhouse counsel Katsuyama about the possible lawsuit.
The memorandum was therefore prepared in the context
of the attorney-client relationship.
Finally, Shaffer argues that even if the attorneyclient privilege would normally protect the document, the
crime-fraud exception should apply here because,
he asserts, it was prepared after the fact to justify the
termination. “The crime-fraud exception places communications made in furtherance of a crime or fraud
outside the attorney-client privilege.” BDO Seidman, 492
F.3d at 818. This exception comes from the recognition
that when legal advice relates “not to prior wrongdoing,
but to future wrongdoing,” the privilege goes beyond what
is necessary to achieve its purpose. United States v. Zolin,
491 U.S. 554, 562-63 (1989) (citation omitted). The excep-

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tion’s purpose is to ensure that the confidentiality
afforded to communications between attorney and
client “does not extend to communications ‘made for the
purpose of getting advice for the commission of a fraud’
or crime.” Id. at 563 (quoting O’Rourke v. Darbishire,
[1920] A.C. 581, 604 (P.C.)).
We have said that the party arguing that the crime-fraud
exception should apply must first “present prima facie
evidence that gives color to the charge by showing some
foundation in fact.” United States v. Boender, 649 F.3d
650, 655 (7th Cir. 2011) (quoting BDO Seidman, 492 F.3d
at 818). The district court can then require the defendant
to come forward with an explanation for the evidence
offered against the privilege. Id. Finally, the district court
exercises its discretion in accepting or rejecting the proffered explanation. Id. In this case, after receiving briefs
from both sides, the district court conducted an
in camera review of the document, and, based on the
circumstances in this case, ruled that the crime-fraud
exception did not apply. We review that decision
for an abuse of discretion. See BDO Seidman, 492 F.3d
at 818.
It is certainly odd that not just Daniels, but also Lynch
typed up memoranda after learning of the potential
litigation and dated them months before the dates on
which they were typed. That said, there is no suggestion from the record that Lynch’s memorandum was
in furtherance of a crime or fraud. Lynch specifically
told in-house counsel that he had prepared the memorandum in preparation for their meeting, and no attempt

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was made to hide that fact during the meeting or to
anyone else thereafter. The AMA has not attempted to
use Lynch’s memorandum to support its termination
decision, and there is no evidence that in-house
counsel assisted Lynch in the commission of a fraud or
gave any advice to him regarding the commission of a
fraud. Cf. United States v. Al-Shahin, 474 F.3d 941, 946-47
(7th Cir. 2007) (applying crime-fraud exception to communications that furthered scheme to collect money from
an insurance company for a staged accident). There is no
suggestion from the record that Lynch intended to
commit a fraud either. Lynch was up front with
Katsuyama, the memorandum’s intended and only audience, that despite its date he had prepared the memorandum only recently and not in November. Lynch
freely acknowledged in his deposition that he drafted
the memorandum in February 2009. He also explained
that he placed the November 21 date on the memorandum because he had been told to write down his
rationale for taking the action he did at the time he did
it. Notably, Lynch clearly knew on November 21, the
date he placed on the memorandum at issue, that
Shaffer had already requested leave since Shaffer had
sent him an email requesting it the previous day. The
date Lynch placed on his memorandum, unlike the
date on the one Daniels typed, therefore does not
support a theory that the memorandum was an attempt
to rationalize the decision before learning of Shaffer’s
FMLA leave request. Under these circumstances, the
district court did not abuse its discretion when it concluded that the crime-fraud exception did not apply.

Case: 10-2117

Document: 26

Filed: 10/18/2011

20

Pages: 20

No. 10-2117

We therefore uphold the district court’s determination
that the attorney-client privilege protects the memorandum.

III. CONCLUSION
The judgment of the district court is R EVERSED, and
this case is R EMANDED for further proceedings consistent with this opinion.

10-18-11