Phillips v. United Trailers Inc., et al

Filing 46

OPINION AND ORDER granting 33 Motion for Summary Judgment. The Clerk shall enter judgment accordingly. Signed by Judge Robert L Miller, Jr on 3/20/19.(nal)

IUNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
BRANDI LUTES, Personal Representative )
of the Estate of BUDDY F. PHILLIPS,
)
)
Plaintiff,
)
)
v.
)
)
UNITED TRAILER INC.,
)
UNITED TRAILER EXPORTING, INC.,
)
)
Defendants.
)

Case No. 2:17-CV-00304 RLM

OPINION AND ORDER
On July 3, 2015, Buddy Phillips (now deceased, with Ms. Lutes acting as
estate representative) injured his rib while playing with his grandchildren. Mr.
Phillips went to Elkhart General Hospital a day after his injury, where an x-ray
confirmed that he had suffered a rib fracture. Because of Mr. Phillips’s injury,
he missed work from July 6-23, 2015. Until July 17, Mr. Phillips reported his
absences to United Trailers. After July 17, however, Mr. Phillips didn’t report his
absences, resulting in his termination under United Trailer’s attendance policy.
Mr. Phillips now sues United Trailers for interference with his rights under the
Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. and for
unlawful retaliation under the FLMA when United Trailers terminated Mr.
Phillips’ employment. United Trailers moves for summary judgment with respect
to all claims. The court heard argument on February 20, and now grants the
motion.

I.

BACKGROUND

A. General Background
United Trailers manufactures steel-framed enclosed trailers for personal and
commercial cargo, vehicles, and food and craft vending. Mr. Phillips worked for
a predecessor company of United Trailers from 1995 until he was excused in
1999 due to poor attendance. He was reinstated but was later deemed to have
“resigned” by missing three days consecutive days of work in late summer 1999
without reporting his absences per company policy. In 2003 United Trailers
rehired Mr. Phillips as a metal department trimmer, a job that required him to
install fenders, lights, and metal trim to the trailers. Mr. Phillips’s employment
at United Trailers was typical of the average worker there. All United Trailers
production employees work a 5:00 a.m. through a 1:00-3:00 p.m. shift,
depending on production needs. Mr. Phillips worked as a metal department
trimmer up until his employment was terminated in the summer of 2015 for
failing to report in his absence over four consecutive days.

B. Attendance Policy
Each United Trailer employee is given a handbook with the company’s policies
including attendance policies. The policy provides for a mandatory and specific
call-in procedure for reporting work absences. The relevant portion of the policy
states: Employees must call an official hotline no later than 15 minutes before
the start of their 5:00 a.m. shift and that “THIS IS THE ONLY ACCEPTABLE
2

MEANS OF CALLING IN.” (bold and capitalized in original). The policy also states
that calling a supervisor or co-worker is unacceptable and that employees must
leave a voice-mail message on the hotline – calling the hotline without leaving a
message isn’t adequate notice of absence.
United Trailers operates on an absence point system – an employee who
accrues 13 or more points is terminated. Employees get three points for an
unexcused absence as long as they call into the hotline and five points if they
don’t call in. Ten accrued points results in a reduction in pay. Employment is
also terminated if the employee doesn’t call in for three consecutive days.
United Trailers has several exceptions to this policy. Holidays and vacations
don’t count toward point accrual. The company acknowledges specific personal,
bereavement, jury, and military absences. United Trailers recognizes both FMLA
leave and leave directed by a doctor through doctor notes. During his time at
United Trailers, Mr. Phillips made consistent use of the company’s doctor note
policy. All of these policies are in the handbook provided to Mr. Phillips, who
signed acknowledgments on three separate occasions during his tenure at
United Trailers that he had received and read the policies. Mr. Phillip’s wife
acknowledged in her deposition that she knew about the call-in and doctor note
policies.

C. Rib Injury
On July 3, 2015 Mr. Phillips injured his ribs while playing with his
grandchildren. On July 4 Mr. Phillips went to Elkhart General Hospital where an
3

x-ray revealed that he had suffered a rib fracture. The physician’s release after
Mr. Phillip’s visit to the hospital said he could engage in “activity as tolerated”
but didn’t explicitly restrict him from work. The hospital also instructed Mr.
Phillips to follow up with his primary care physician three to five days after he
had visited the hospital. On July 16, Mr. Phillips followed up with his primary
care physician, Dr. Borelli, who wrote a brief note excusing Mr. Phillips from
work throughout the month.
Mr. Phillips or his wife called the United Trailers hotline on July 6, 7, 8, 14,
16, and 17, 2015 to report his absence. No further calls were placed to the hotline
after July 17 in accordance with the company’s absence policy. United Trailer’s
Director of Human Resources, in consultation with the plant manager Randy
Snyder, decided to terminate Mr. Phillip’s employment on July 23 because Mr.
Phillips had more than 13 absence points under the company policy and because
he had missed three or more consecutive days without calling the company’s
hotline. After United Trailers notified Mr. Phillips of his termination, he returned
to work to collect his belongings.
On June 30, 2017 Mr. Phillips filed a complaint against United Trailers
alleging FLMA interference and retaliation relating to his work absence and
dismissal in the summer of 2015.

II. STANDARD OF REVIEW
Summary judgment is appropriate when “the pleadings, discovery
materials, disclosures, and affidavits demonstrate no genuine issue of material
4

fact.” Protective Life Ins. Co. v. Hansen, 632 F.3d 388, 391-92 (7th Cir. 2011).
When no genuine issue of material fact exists, “the movant is entitled to
judgment as a matter of law.” Dunkin v. Appriss, Inc., 266 F. Supp. 3d 1103,
1106 (N.D. Ind. July 18, 2017). The movant has the burden of demonstrating to
the court the basis for its motion that there exists no genuine issue of material
fact. Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). In demonstrating this
burden, the evidence must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When
the movant has met its burden, the opposing party cannot rely solely on the
allegations in their pleadings but must “point to evidence that can be put in
admissible form at trial, and that, if believed by the fact-finder, could support
judgment in his favor.” Marr v. Bank of America, N.A., 662 F.3d 963, 966 (7th
Cir. 2011); see also Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting
Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)
(summary judgment is “the put up or shut up moment in a lawsuit, when a party
must show what evidence it has that would convince a trier of fact to accept its
version of the events.”)). The non-moving party cannot rely on conclusory
allegations. Smith v. Shawnee Library System, 60 F.3d 317, 320 (7th Cir. 1995).
Instead, the non-moving party must affirmatively demonstrate with “specific
facts” that a genuine issue exists that require trial. Gabrielle M. v. Park ForestChicago Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 822 (7th Cir. 2003) (emphasis
in original). Failure to prove an essential element of the alleged activity will
render other facts immaterial. Celotex, 477 U.S. at 323; Filippo v. Lee
5

Publications, Inc., 485 F.Supp.2d 969, 972 (N.D. Ind. 2007) (the non-moving
party “must do more than raise some metaphysical doubt as to the material
facts; he must come forward with specific facts showing a genuine issue for
trial.”).

III. DISCUSSION
Mr. Phillips argues that United Trailers interfered with his rights under
the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. and
that he was subjected to unlawful retaliation under the FLMA when United
Trailers terminated his employment.

FMLA Interference
A. Serious Medical Condition

The Family and Medical Leave Act requires employers to allow qualifying
employees up to twelve workweeks per year of leave for a serious medical
condition that impairs the employee’s work functions. Darst v. Interstate Brands
Corp., 512 F.3d 903, 908 (7th Cir. 2008). Employers cannot interfere with an
employee’s right in seeking this leave. 29 U.S.C. § 2615(a)(1); James v. Hyatt
Regency Chi., 707 F.3d 775, 780 (7th Cir. 2003). For Mr. Phillips’s FMLA
interference claim to be successful, he must provide adequate evidence to show
that “(1) [he] was eligible for FMLA protection; (2) [his] employer was covered by
the FMLA; (3) he was entitled to leave under the FMLA; (4) [he] provided sufficient
6

notice of [his] intent to take FMLA leave; and (5) [his] employer denied [him] the
right to FMLA benefits.” Nicholson v. Pulte Homes, Corp., 690 F.3d 819, 825 (7th
Cir. 2012).
For Mr. Phillips to be eligible for FMLA protection, he must establish that he
had “a serious medical condition” warranting leave. 29 U.S.C. § 2612(a)(1)(D);
Kauffman v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir. 2005). A “serious
medical condition” is defined as an “illness, injury, impairment, or physical or
mental condition” involving “inpatient care” or “continuing treatment by a health
care provider.” 29 U.S.C. § 2611(11). Inpatient care typically involves an
overnight hospital stay and “incapacity, or any subsequent treatment in
connection with such inpatient care.” 29 C.F.R. §824.114. Continuing treatment
includes periods of incapacitation for more than three consecutive calendar days,
two or more treatments by health care providers within 30 days of the first
incapacity, or at least one visit to a health care provider for continued treatment.
29 C.F.R. §25.115. To qualify as incapacitated, Mr. Phillips must have been
“unable to work, attend school or perform other regular daily activities.” 29
C.F.R. §25.113(b).
Mr. Phillips has the burden of showing that he suffered a serious medical
condition (i.e. that he was incapacitated). Stevenson v. Hyre Elec. Co., 505 F.3d
720, 728 (7th Cir. 2007) (finding that the burden is by a preponderance of the
evidence); Casket v. Colgate-Palmolive Co., 535 F.3d 585, 593-594 (7th Cir.
2008). The summary judgment record provided by Mr. Phillips is thin as to this
point. We know that Mr. Phillips went the hospital the day after his injury where
7

an x-ray revealed that he had a broken rib. During this visit it was also revealed
that he had a heart problem, although the record doesn’t contain detailed
information about this. When Mr. Phillips received medical treatment at the
hospital on July 4, the attending physician told him to follow up with a primary
care doctor and that, in the meantime, he could engage in “activities as
tolerated.” Mr. Phillips alleges that his primary care physician, Dr. Borelli, told
him on July 16 to abstain from work for the rest of the month. Such
recommendation was memorialized in a note written by Dr. Borelli, although
United Trailers says it never received this note. Both Mr. Phillips’s wife and
daughter testified further in their depositions that Mr. Phillips had an impaired
ability to walk and raise his arms. The proof is sparse, but Mr. Phillips has
provided enough evidence that a reasonable juror could find that Mr. Phillips
had a serious medical condition in the days following the fracture of his rib. Price
v. City of Fort Wayne, 117 F.3d 1022, 1025 (7th Cir. 1997) (holding that a doctor
ordering plaintiff to forgo work for an extended period for a condition that could
affect work ability raised a question of material fact as to the seriousness of
plaintiff’s medical condition); Burnett v. LFW Inc., 472 F.3d 471, 477-478 (7th
Cir. 2006).

B. Notice

For Mr. Phillips to succeed on his interference claim, he must have given
United Trailers proper notice that his injury would qualify under the FMLA.
8

Aubuchon v. Knauf Fiberglass, GMBH, 359 F.3d 950, 953 (7th Cir. 2004) (“[T]he
employee’s duty is merely to place the employer on notice of a probable basis for
FMLA leave.”). Nicholson v. Pulte Homes, Corp., 690 F.3d 819, 825. For notice
to be proper, Mr. Phillips needn’t have expressly claimed that he was taking leave
under the FMLA but needed to provide enough information that his injury could
qualify for FMLA leave. 29 C.F.R. § 825,303(b); Phillips v. Quebecor World RAI,
Inc., 450 F.3d 308, 311 (7th Cir. 2006); Stoops v. One Call Commc’ns., 141 F.3d
309, 312 (7th Cir. 1998) (“the employee can be completely ignorant of the benefits
conferred by the [FMLA].”). The record supporting proper notice is sparse – a
primary question exists as to whether Mr. Phillips provided enough information
for United Trailers to know whether FMLA leave was applicable.
“[A]dequacy of notice is a fact-rich question, [and] it is perhaps best resolved
by the trier of fact, particularly, where, as is the case here, the employer and
employee dispute the quantity and nature of communications regarding the
employee's illness.” Burnett v. LFW Inc., 472 F.3d 471, 489 at n.4 (7th Cir. 2006).
Mr. Phillips’s wife called the United Trailer hotline on July 6 stating that Mr.
Phillips had suffered a rib injury and heart condition. Asking for leave, by itself,
isn’t enough to fulfil the FMLA notice requirement. Aubuchon v. Knauf
Fiberglass, GMBH, 359 F.3d at 952 (“The requirement of notice is not satisfied
by the employee’s merely demanding leave.”). Non-descript and downplayed
characterizations of injuries aren’t enough. Aubuchon v. Knauf Fiberglass,
GMBH, 359 F.3d at 952 (“If you have brain cancer but just tell your employer
that you have a headache, you have not given notice that the [FMLA] requires.”);
9

Phillips v. Quebecor World RAI, Inc., 450 F.3d at 312; de la Rama v. Illinois Dept.
of Human Services, 541 F.3d 681, 687 (7th Cir. 2008) (“[t]he FMLA dos not
require employers to play Sherlock Holmes, scanning […] for clues to the
undisclosed, true reason for an employee’s absence.”). The parties dispute the
precise contents of this conversation, but viewing the conversation in a light most
favorable to the plaintiff, adequate notice might have been tendered. As it stands
in the record, Mr. Phillips or his wife did more than merely demand time off from
work, they provided a reason for his absence. The extent of information provided
to United Trailers isn’t clear. Given that there is a material question of fact about
whether adequate notice was given, a jury, not the court, should resolve the
question. Burnett v. LFW Inc., 472 F.3d 471, 489 at n.4.

C. Termination

Absent unusual circumstances, an employee must comply with the
employer’s work absence policies, even when the FMLA covers an absence. 29
C.F.R. § 825.302(d); 29 C.F.R. § 825.303(c). Non-compliance with an employer’s
attendance procedures, and subsequent termination based on a violation of
those procedures, forecloses an FMLA claim. Lewis v. Holsum of Fort Wayne,
Inc., 278 F.3d 706 (7th Cir. 2002) (employee’s termination for failure to comply
with attendance policies did not violate the FMLA); Gilliam v. United Parcel Serv.,
Inc., 233 F.3d 969 (7th Cir. 2002) (no violation of FMLA where employee did not
give proper notice under collective bargaining agreement); Brown v. Auto.
10

Components Holdings, LLC, 622 F.3d 685 (7th Cir. 2010) (termination for failure
to comply to with notice provisions of collective bargaining agreement did not
violate the FMLA).
The United Trailer’s attendance policy is explicit in its requirement that
employees call its hotline at least 15 minutes before their shift. Calling this
hotline is the only appropriate way to call out of work. Mr. Phillips didn’t call the
hotline at the proper time on July 20, 21, 22, or 23. Three consecutive failures
to appropriately call-out an absence violates the policy and subjects an employee
to termination. “[I]t bears repeating that the regulations explicitly provide that
employers may require their employees to comply with their ‘usual and
customary notice and procedural requirements’ when requesting FMLA leave.”
Righi v. SMC Corp. of Am., 632 F.3d 404, 411 (7th Cir. 2011); Darst v. Interstate
Brands Corp., 512 F.3d 903 (7th Cir. 2008) (employer did not violate the FMLA
when it terminated employee for violation of the company’s absenteeism policy.)
“[A]n employee's failure to comply with his employer's internal leave policies and
procedures is a sufficient ground for termination and forecloses an FMLA claim.”
Righi v. SMC Corp. of Am., 632 F.3d at 411. United Trailers therefore didn’t
interfere with Mr. Phillip’s FMLA rights when it enforced its attendance policies
and terminated his employment.
In summary, though certain aspects of Mr. Phillips’ claim of FMLA
interference would be best left for the trier of fact to decide, he ultimately can’t
succeed on his claim as a matter of law. There are triable questions as to whether
Mr. Phillips’ injury qualifies as a “serious medical condition,” Price v. City of Fort
11

Wayne, 117 F.3d at 1025, and whether Mr. Phillips provided adequate notice of
his injury to United Trailers. Burnett v. LFW Inc., 472 F.3d 471,489 at n.4. But
Mr. Phillips can’t point to sufficient facts or evidence to establish a prima facie
case of interference because of his failure to abide by United Trailers’ absentee
policy. Righi v. SMC Corp. of Am., 632 F.3d at 411. That failure to follow
company policy precludes a successful interference claim. Darst v. Interstate
Brands Corp., 512 F.3d 903.

Retaliation
An employer is prohibited from retaliating against an employee who has
exercised their FMLA rights. 29 U.S.C. § 2615(a)(2). For Mr. Phillips to succeed
on his retaliation claim, he must prove “discriminatory or retaliatory intent.”
Nicholson v. Pulte Homes, Corp., 690 F.3d at 825 and 828. To show this, Mr.
Phillips must prove that 1) he engaged in protected activity; 2) his employer took
an adverse action against him; and 3) there is a causal connection between the
protected activity and the adverse employment action. Cracco v. Vitran Express,
Inc., 559 F.3d 625, 633 (7th Cir. 2009) (citing Andonissamy v. Hewlett-Packard
Co., 547 F.3d 841, 850 (7th Cir. 2008). The best way to show a causal connection
is either to offer direct evidence such as an admission of retaliation or to put
forth a “convincing mosaic” of circumstantial evidence. Perez v. Thorntons, Inc.,
731 F.3d 699, 711 (7th Cir. 2013). A convincing mosaic can include “(1)
suspicious timing, ambiguous statements oral or written, and other bits and
pieces from which a retaliatory intent might be drawn, (2) evidence, but not
12

necessarily rigorous statistical evidence, that similarly situated employees were
treated differently, or (3) evidence that the employer offered a pretextual reason
for an adverse employment action.” Perez v. Thorntons, Inc., 731 F.3d at 771.
The record doesn’t support the assertion that Mr. Phillips or his wife
expressly asked for FMLA leave. Indeed, there is a question whether Mr. Phillips
or his wife even put United Trailers on adequate notice that Mr. Phillips qualified
for such leave. Nicholson v. Pulte Homes, Corp., 690 F.3d at 828 (employee did
not engage in protected activity when notice was insufficient under the FMLA).
Simply being eligible for FMLA leave doesn’t mean one engages in protected
activity. Larson v. Motor Werks of Barrington, Inc., 2018 U.S. Dist. LEXIS 1338,
at *23 (N.D. Ill. January 4, 2018).
Even if the trier of fact found that Mr. Phillips expressly requested leave,
Mr. Phillips’s wife and daughter both testified in their respective depositions that
Mr. Phillips wasn’t a victim of retaliation. Such admissions are incongruent with
a successful retaliation claim. Bryant v. Fort Wayne Metro. Human Rels.
Comm’n, 2007 U.S. Dist. LEXIS 64443, at *43 (N.D. Ind. Aug. 28, 2007) aff’d 284
Fed. Appx. 335 (7th Cir. 2008) (plaintiff’s admission that she had no evidence of
retaliation could not support her retaliation claim); Graham v. Aurora Police
Dep’t, 156 F.Supp.2d 880, 888 (N.D. Ill. March 28, 2001) (retaliation claim failed
when plaintiff could not provide any evidence that “defendant harbored a
retaliatory motive in discharging him.”). Such admissions foreclose a valid claim
and undercut assertations of discriminatory intent or motive. As the record
13

stands, there is no evidence that United Trailers retaliated when they terminated
Mr. Phillips’s employment.
United Trailers terminated Mr. Phillips’s employment for failure to adhere
to the company’s attendance policy. Gilmour v. Abbott Labs, 2005 U.S. Dist.
LEXIS 7604, at *23-24 (N.D. Ill. April 11, 2005 (no retaliation when employee
violated company attendance policy). Mr. Phillips’s assertation that his
termination was to avoid additional accrual of vacation days is almost entirely
unsupported in the record. Burks v. Wis. DOT, 464 F.3d 744, 758-759 (7th Cir.
2006) (“[S]uspicious timing alone […] does not support a reasonable inference of
retaliation.”). Nor has Mr. Phillips shown any pretext to United Trailers’
termination of his employment.
Mr. Phillips hasn’t pointed to sufficient evidence or facts to establish a
prima facie case of unlawful retaliation by United Trailers in contravention of the
FMLA. Mr. Phillips hasn’t shown “proof of discriminatory or retaliatory intent.”
Nicholson v. Pulte Homes, Corp., 690 F.3d at 825, 828. Mr. Phillips can’t show
that he engaged in protected activity because he didn’t provide notice nor request
FMLA leave. Nicholson v. Pulte Homes, Corp., 690 F.3d at 828. The only
permissible inference from the summary judgment record is that United Trailers
terminated Mr. Phillips because he did not comply with United Trailers’
attendance policy. Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706.

14

CONCLUSION
For the foregoing reasons, the court GRANTS the defendants’ motion for
summary judgment [Doc. No. 33]. The Clerk shall enter judgment accordingly.
SO ORDERED.
ENTERED:

March 20, 2019
/s/ Robert L. Miller, Jr.
.
Judge, United States District Court

15