Hudson v. Tyson Fresh Meats, Inc

Filing 19

ORDER granting 12 Motion for Summary Judgment. (See text of order) Signed by Chief Judge Linda R Reade on 2/26/2014. (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
DELBERT E. HUDSON,
Plaintiff,

12-CV-2079-LRR

vs.

ORDER

TYSON FRESH MEATS, INC.,
Defendant.
____________________
TABLE OF CONTENTS
I.

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

PROCEDURAL HISTORY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III.

SUBJECT MATTER JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV.

SUMMARY JUDGMENT STANDARD. . . . . . . . . . . . . . . . . . . . . . . . . 3

V.

FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A.
B.
C.
D.
E.
F.
G.

VI.

Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hudson’s Employment at Tyson Prior to the Dispute at Issue.. . . . . .
Disciplinary Action and Absences from Work. . . . . . . . . . . . . . . . .
January 2, 2012 Doctor Visit. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hudson’s Application for Leave. . . . . . . . . . . . . . . . . . . . . . . . . .
Return to Work. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4
4
5
6
7
9
9

ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A.
B.
C.

D.

FMLA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hudson’s Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Entitlement Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Parties’ arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Applicable law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Retaliation Claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Parties’ arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Applicable law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11
16
18
18
21
22
24
24
24
26

VII.

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
I. INTRODUCTION
The matter before the court is Defendant Tyson Fresh Meats, Inc.’s (“Tyson”)

Motion for Summary Judgment (“Motion”) (docket no. 12).
II. PROCEDURAL HISTORY
On October 9, 2012, Plaintiff Delbert E. Hudson filed a one-count Petition
(“Complaint”) (docket no. 3) in the Iowa District Court for Black Hawk County, Case No.
LACV 120148, alleging that Tyson violated his rights under the Family and Medical Leave
Act (“FMLA”) by interfering with his exercise of his FMLA rights and by terminating his
employment in direct retaliation to him applying for and taking FMLA leave.1 On
November 6, 2012, Tyson removed the action to this court on the basis of federal question
jurisdiction. Notice of Removal (docket no. 2). On November 15, 2013, Tyson filed the
Motion. On December 16, 2013, Hudson filed a Resistance (docket no. 15). On
December 24, 2013, Tyson filed a Reply (docket no. 18). Neither party has requested oral
argument and the court finds that oral argument is unnecessary. The Motion is fully
submitted and ready for decision.
III. SUBJECT MATTER JURISDICTION
The court has federal question jurisdiction over Hudson’s claim that Tyson violated
Hudson’s rights under the FMLA. See 28 U.S.C. § 1331 (“The district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States.”).2

1

The court notes that the parties dispute whether Hudson took and was granted
FMLA leave or non-FMLA leave. In fact, Hudson alleges that he did not learn that Tyson
classified his leave as non-FMLA leave until Tyson provided documents to Hudson in
discovery that revealed such classification.
2

The parties appear to disagree about whether there is diversity jurisdiction over
(continued...)
2

IV. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A dispute is genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party; a fact is material if its resolution affects
the outcome of the case.” Amini v. City of Minneapolis, 643 F.3d 1068, 1074 (8th Cir.
2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986)), cert.
denied, 132 S. Ct. 1144 (2012). “[S]elf-serving allegations and denials are insufficient to
create a genuine issue of material fact.” Anuforo v. Comm’r, 614 F.3d 799, 807 (8th Cir.
2010).

“To survive a motion for summary judgment, the nonmoving party must

substantiate [its] allegations with sufficient probative evidence [that] would permit a finding
in [its] favor based on more than mere speculation, conjecture, or fantasy.” Barber v. C1
Truck Driver Training, LLC, 656 F.3d 782, 801 (8th Cir. 2011) (second alteration in
original) (quoting Putman v. Unity Health Sys., 348 F.3d 732, 733-34 (8th Cir. 2003))
(internal quotation marks omitted). The court must view the record in the light most
favorable to the nonmoving party and afford it all reasonable inferences. See Schmidt v.
Des Moines Pub. Sch., 655 F.3d 811, 819 (8th Cir. 2011).
V. FACTUAL BACKGROUND
Viewing the evidence in the light most favorable to Hudson and affording him all
reasonable inferences, the material facts are these:

2

(...continued)
Hudson’s claims. The court, however, declines to address this issue since federal question
jurisdiction exists.
3

A. Parties
Hudson is a resident of Waterloo, Iowa, who began working as a supervisor on the
kill floor, or hot side, of Tyson’s meat-packing plant in Waterloo, Iowa, in November
2010.
Tyson operates a meat-packing plant in Waterloo, Iowa, and in other locations
throughout the state and country.
B. Hudson’s Employment at Tyson Prior to the Dispute at Issue
Hudson was a supervisor on the hot side at Tyson from November 1, 2010 to March
20, 2011. On March 20, 2011, Tyson transferred Hudson to a supervisor position on the
cut floor, or cold side, of Tyson’s Waterloo, Iowa, plant.
While working on the hot side at Tyson, Hudson had sporadic health-related
absences. Whenever he requested time off from his supervisor, Hamdija Beganovic, he
was given it, provided that he gave appropriate notice. In March 2011, Hudson informed
the superintendent of the hot side, Don Brophy, that he did not feel like he was being
treated fairly on the hot side and that he was yelled at for things beyond his control.
Hudson told Brophy that he would leave if things did not change. Hudson then quit his
job on the hot side.3 Tyson offered Hudson a position on the cold side away from the

3

In Hudson’s deposition, he indicated that he quit his job and was rehired. Hudson
Deposition, Tyson Appendix (“Tyson App’x”) (docket nos. 12-3 through 12-18) at 8.
However, in Hudson’s affidavit that he filed after Tyson filed the Motion, he indicated that
he “left work intending to quit” but that Tyson “asked [him] not to quit, and offered to
transfer [him] to the cold side.” Hudson Affidavit, Hudson Appendix (“Hudson App’x”)
(docket nos. 15-3) at 49-50. According to Brophy, when Hudson did not show up for
work, he asked Hudson’s girlfriend at the time, Colleen Rambo, where Hudson was, and
Rambo responded that Hudson had quit. Since “a party cannot avoid summary judgment
by contradicting his own earlier testimony,” Prosser v. Ross, 70 F.3d 1005, 1008 (8th Cir.
1995), and “self-serving allegations . . . are insufficient to create a genuine issue of
material fact,” Anuforo, 614 F.3d at 807, the court finds that there is no genuine dispute
that Hudson quit his job in March 2011.
4

department manager4 who Hudson alleges mistreated him, and Hudson began working on
the cold side on March 20, 2011. Hudson performed adequately and met the expectations
of his employer before the incident that led to his termination.
C. Disciplinary Action and Absences from Work
On December 27, 2011, Tom Hart, a night manager at Tyson’s Waterloo plant,
disciplined Hudson for not talking to one of his team members about a work injury and for
not letting the team member go to the clinic. Hudson was upset and frustrated by this
disciplinary action.
On December 28, 2011, Hudson realized that “it would likely be some time before
[he] would be able to return to work” because of his “existing state of health.” Hudson
Affidavit, Hudson App’x at 50. He told his then-girlfriend, Rambo, who worked and
continues to work for Tyson, to tell Beganovic the following day that he “may be out for
a few days.” Hudson Deposition, Tyson App’x at 18. During the relevant period, Hudson
did not know whether Rambo conveyed this message to Beganovic.5 However, the record
indicates that Rambo did pass on a message from Hudson to Beganovic indicating that
Hudson would either be late or that he would not be in on December 28, 2011. On
December 28, 2011, thirty minutes before his shift was scheduled to begin, Hudson also
sent a text message to Beganovic indicating that he was having health issues, that he would
not be at work for a few days and that he was trying to get in to see a doctor.6 While

4

The record does not indicate the identity of this department manager, and Hudson
does not recall the department manager’s name. However, Hudson does identify the
department manager as a woman. Hudson Deposition, Hudson App’x at 14.
5

Hudson did not find out until during discovery whether Rambo conveyed his
message to Hudson’s supervisors at Tyson.
6

Hudson does not have a copy of this text message and Beganovic denies receiving
the text message. However, reasonable jurors could come to different conclusions on
(continued...)
5

employed at Tyson, Hudson frequently communicated with Beganovic by text message,
and the text messages went both ways. On at least one occasion prior to December 28,
2011, Hudson sent Beganovic a text message indicating that he would be absent from
work, and the text was considered an acceptable notification. However, in May 2011,
seven months prior to when Hudson sent the text message that is a subject of this dispute
to Beganovic, Hudson signed a form that indicated that “[a]ll Management Team Members
are expected to personally call their direct supervisor to report an unplanned absence or
to report that they will be late.” Attendance Expectations Memo, Tyson App’x at 77.
Hudson did not come to work on December 28, December 29 or December 30,
2011. Apart from the text message he sent to Beganovic on December 28, 2011, and the
oral message he told Rambo to give to Beganovic, Hudson did not inform any of his
supervisors that he would be absent on those days in any way, including via phone call.
Hudson was not scheduled to work on December 31, 2011 or January 1, 2012, and the
plant was closed in observance of New Year’s day on January 2, 2012.
D. January 2, 2012 Doctor Visit
On December 28, 2011, Hudson attempted to see his doctor, Dr. Matthew Kettman,
M.D., but he was unsuccessful in doing so because his doctor’s office was closed for the
holidays. Hudson was not able to see his doctor until the following Monday, January 2,
2012. In Dr. Kettman’s notes, he stated that Hudson was in for a follow up for lower leftsided back pain that radiated down his left leg. Dr. Kettman also noted that Hudson was
having weakness and tingling in his left leg, as well as a bulging disc. Prior to seeing Dr.
Kettman, Hudson received three back injections that did not help his pain. Hudson
reported that his pain was an 8-10 on the 1-10 scale and that it prevented him from sitting
6

(...continued)
whether the text message was sent and, accordingly, for purposes of summary judgment,
the court construes the evidence in the light most favorable to Hudson and presumes that
Hudson sent the text message.
6

or laying down comfortably. Hudson also reported that he had weakness in his arms and
that he was starting to have headaches and nausea and decreased appetite and sleep. Dr.
Kettman noted that Hudson may be depressed and was unable to work. Additionally, Dr.
Kettman reported that Hudson had a kidney nodule. During the appointment, Dr. Kettman
performed an EKG—which he told Hudson he was performing to rule out that he was
having a heart attack—that returned no abnormalities, and Dr. Kettman also noted that he
did not think that Hudson’s arm pain was a variation of coronary artery disease.7
In summary, Dr. Kettman noted that Hudson’s active problems included abdominal
pain, backache, calcification of the lungs, kidney mass, depression, fatigue, flank pain,
hyperlipidemia, hypertension, muscle aches, peripheral neuropathy, recent weight loss and
smoking. Dr. Kettman diagnosed Hudson with back pain, diffuse pain, depression—for
which he prescribed medication—lung nodules and bilateral arm pain. Notably, Dr.
Kettman did not diagnose Hudson as having had a heart attack nor did Dr. Kettman take
Hudson off work for any heart-related conditions between December 28, 2011 and January
12, 2012, the day Tyson terminated Hudson’s employment. After his visit, Dr. Kettman
signed a work release that stated the following:
Patient Delburt [sic] Hudson has been under my care [from]
12/28/11 to 1/7/12 for illness [and] was unable to work[.]
January 2, 2012 Work Release, Tyson App’x at 32.
E. Hudson’s Application for Leave
On January 3, 2012, Hudson returned to Tyson and went directly to health services,
where all leave documentation at Tyson is processed. Hudson knew that FMLA leave was
available for employees with serious health conditions, and he intended to take FMLA

7

In his deposition, Dr. Kettman noted that back and arm pain can be a non-typical
presentation of angina, which occurs when the heart does not receive enough oxygen-rich
blood. See Dr. Kettman Deposition, Hudson App’x at 28. Dr. Kettman also noted that
nausea can be a symptom of cardiac problems.
7

leave. At the time, Hudson had been employed by Tyson for more than twelve months and
had worked in excess of 1250 hours in the preceding twelve-month period. Moreover,
Hudson had not used any FMLA leave in the previous twelve months. Tyson also
employed over fifty employees within seventy-five miles of the work site, making it a
covered employer under the FMLA.
When Hudson went to health services, he gave a nurse the work release from Dr.
Kettman, but he does not recall discussing with the nurse any of the specifics of his health
issues. Hudson also did not tell the nurse whether he was seeking FMLA or non-FMLA
leave. The nurse gave Hudson a “Leave of Absence Application.” On the application,
there were options for different types of leave, including a “Medical (Non FMLA)” box,
which had both work related and non-work related options, and an “FMLA” box. Leave
of Absence Application, Tyson App’x at 33. Hudson signed and dated the application
prior to the application being filled out, but later someone else checked the “Medical (Non
FMLA)” box and indicated that Hudson would return to work on January 7, 2012.8
After leaving health services, Hudson encountered assistant plant manager Brent
McElroy in the building. Prior to speaking with McElroy that day, Hudson had never
spoken with McElroy about any of his health conditions. Hudson told McElroy that Dr.
Kettman “was taking [him] out of work because [Dr. Kettman] thought that [he] might
have had a mild heart attack and was going to put [him] in the hospital to run some
test[s].” Answers to Defendant’s Interrogatories, Tyson App’x at 2. According to
Hudson, McElroy told him to “go see what was going on and get it taken care of.”

8

The parties dispute who filled out the application and who checked the “Medical
(Non FMLA)” box. The court finds that reasonable jurors could come to different
conclusions on who filled out the application and checked the box and, accordingly, for
purposes of summary judgment, the court construes the evidence in the light most
favorable to Hudson and presumes that someone other than Hudson filled out the
application and checked the box.
8

Hudson Deposition, Tyson App’x at 10. McElroy was not involved in processing or
approving Hudson’s leave application. After speaking with McElroy, Hudson left the
plant.
On January 4, 2012, Jim Hook, Tyson’s night shift human resources manager,
approved Hudson’s request for leave. Although there was space on the form for Hudson’s
supervisor, Beganovic, to approve the leave, Beganovic typically does not sign the forms.
F. Return to Work
Hudson was not scheduled to work on January 7 or January 8, 2012, but he was
scheduled to work on January 9, 2012. On the morning of January 9, 2012, Hudson called
Dr. Kettman’s office and indicated that he did not feel like he could return to work that day
because he was still having pain. The following day, Dr. Ketmann signed another work
release that stated the following:
Patient Delbert Hudson has been under my care [from] 12-2811 to 1-9-12 for illness [and] was unable to work[.]
January 10, 2012 Work Release, Hudson App’x at 59. Despite not feeling like he could
return to work on the morning of January 9, 2012, Hudson did return to work that day.
However, Beganovic instructed Hudson to speak with Hart rather than return to the floor.
G. Termination
Although the record is not clear, it appears that Hart informed Teri Wray, Tyson’s
human resources manager, on January 9, 2012, that there may be an issue with Hudson.
According to Wray’s notes:
On 12/27/11, . . . Hudson was disciplined for not talking to
his [team members], as directed by . . . Hart. On 12/28/11,
Hudson did not come in to work, but passed a message
through his significant other . . . Rambo . . . that he would be
late to work. Hudson also stated that he had texted this to his
direct supervisor, . . . Beganovic. Beganovic told Hart that he
had no such text message. Hudson never showed to work. On
12/29, 12/30, and 12/31, Hudson did not come to work and
9

did not notify anyone. On 1/3/12, Hudson brought in
paperwork from a physician dated 1/2/12 to . . . McElroy.
This document put Hudson out of work from
12/28/11—1/6/12, [return to work] 1/7/12 for an illness.
Hudson did not call or show up to work 1/7/12.
When questioned, Hudson stated that he did not call his
supervisor because of the stress and pain he was enduring.
Hudson understands that he should have notified his
supervisor, as this is what Tyson expects of all [team
members]. Hudson went on to state that he didn’t come to
work because he was [fed] up and felt that he wasn’t getting
the support he needed from Beganovic. Hart stated that he has
been spending a lot of time in B cut, and he talks to Hudson
daily and never once has Hudson brought these issues up.
Summary:
Hudson had specific instructions to call-in prior to shift to his
immediate supervisor if he was going to be late or miss work.
On 12/27, 12/28, 12/29, 12/30, 12/31/11, and 1/7/12, Hudson
did not come to work and did not notify his supervisor.9 When
questioned, Hudson stated that he was [fed] up and he knows
that he should have called in. Furthermore, Hudson did not
see a physician until 1/2/12 for an illness.
9

The court notes that the January 2, 2012 Work Release stated that Hudson was
unable to work from December 28, 2011 to January 7, 2012. However, the Leave of
Absence Application indicated that Hudson’s expected return date was January 7, 2012.
Hudson claims that he was not scheduled to work on January 7, 2012, which is a Saturday
and a day when he typically does not work. Given that Tyson has not put forth any
evidence indicating Hudson was scheduled to work that day and because in the final
termination documents, Tyson did not list that Hudson was terminated for failing to call
in on January 7, 2012, the court presumes that Hudson was not scheduled to work on
January 7, 2012. Moreover, the court notes that Wray’s notes are not entirely accurate.
Although Wray wrote that Hudson did not come into work on December 27, 2011, the
record is clear that Hudson did come into work on December 27, 2011. See Brief in
Support of Motion (docket no. 12-2) at 3; Hudson Deposition, Tyson App’x at 6; Hudson
Affidavit, Hudson App’x at 50.
10

All Tyson [team members] are required to call-in before [their]
shift if they suspect that that they will be late or need to miss
work. Management [team members] are no different and are,
in fact, held to a higher standard of accountability. It should
also be noted that Hudson has had a similar situation nearly 6
months ago on the kill floor. He was brought back to work
and placed on the Cut floor following that incident.
Recommendation:
Termination
Wray Notes, Tyson App’x at 38 (emphasis omitted) (footnote added).
On January 9, 2012, Tyson human resources director Rick Nimrick approved of
Wray’s recommendation that Hudson be terminated.

On January 11, 2012, Tyson

reinstated Hudson from his leave of absence, which had been extended to January 9, 2012,
pursuant to Dr. Kettman’s second work release, effective January 10, 2012. However,
Hudson was terminated on January 11, 2012, with the stated reason being his “fail[ure]
to notify the company he was going to be absent from work on 12-28, 12-29, 12-30, and
12-31.” Personnel Action, Hudson App’x at 53.
VI. ANALYSIS
A. FMLA
“The FMLA was enacted in the wake of increasing struggle between work and
family life,” Hatchett v. Philander Smith Coll., 251 F.3d 670, 676 (8th Cir. 2001), and
it “provides job security to employees who must miss work because of their own illnesses,
to care for family members, or to care for new babies,” Stallings v. Hussmann Corp., 447
F.3d 1041, 1050 (8th Cir. 2006) (citing 29 U.S.C. § 2612(a)(1)(A)-(D)). “To help ease
the growing tension between work and family, the FMLA establishes a right to unpaid
family and medical leave for [eligible] employees . . . .” Hatchett, 251 F.3d at 676.
An employee is eligible for FMLA leave if the employee “has been employed . . .
for at least 12 months by the employer with respect to whom leave is requested . . . and
11

. . . for at least 1,250 hours of service with such employer during the previous 12-month
period.” 29 U.S.C. § 2611(2)(A). An employer is covered by the FMLA if it is “engaged
in commerce . . . [and] employs 50 or more employees for each working day during each
of 20 or more calendar workweeks in the current or preceding calendar year.” Id.
§ 2611(4). Specifically, “an eligible employee is entitled to 12 workweeks of leave during
any 12-month period if he or she has a ‘serious health condition that makes the employee
unable to perform the functions of the position of such employee.’” Spangler v. Fed.
Home Loan Bank of Des Moines, 278 F.3d 847, 851 (8th Cir. 2002) (quoting 29 U.S.C.
§ 2612(a)(1)(D)). “A ‘serious health condition’ is any ‘illness, injury, impairment, or
physical or mental condition that involves (A) inpatient care in a hospital, hospice, or
residential medical care facility; or (B) continuing treatment by a health care provider.’”
Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008) (quoting 29 U.S.C. § 2611(11)).
“An employee must provide notice to an employer that he plans to take FMLA
leave.” Stallings, 447 F.3d at 1050 (citing 29 U.S.C. § 2612(e)(2)). However, “[a]n
employee need not invoke the FMLA by name in order to put an employer on notice that
the [FMLA] may have relevance to the employee’s absence from work.” Thorson v.
Gemini, Inc., 205 F.3d 370, 381 (8th Cir. 2000); see also 29 C.F.R. § 825.303(b) (“When
an employee seeks leave for the first time for a FMLA-qualifying reason, the employee
need not expressly assert rights under the FMLA or even mention the FMLA.”). “‘Under
the FMLA, the employer’s duties are triggered when the employee provides enough
information to put the employer on notice that the employee may be in need of FMLA
leave.’” Thorson, 205 F.3d at 381 (quoting Browning v. Liberty Mut. Ins. Co., 178 F.3d
1043, 1049 (8th Cir. 1999)). “Whether an employee gave sufficient information to put his
or her employer on notice that an absence may be covered by the FMLA is a question of
fact for the jury.” Phillips, 547 F.3d at 909.

12

29 U.S.C. § 2615 lists certain prohibited acts under the FMLA. In its entirety, 29
U.S.C. § 2615(a) provides that the following are prohibited acts:
(a) Interference with rights
(1) Exercise of rights
It shall be unlawful for any employer to interfere
with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under
this subchapter.
(2) Discrimination
It shall be 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). The FMLA provides eligible employees with a private right of
action against employers who engage in these prohibited acts. Id. § 2617(a)(2). When
employees sue their employers for an alleged violation of the FMLA, they most commonly
invoke § 2615(a)(1) and/or § 2615(a)(2). See Pulczinski v. Trinity Structural Towers, Inc.,
691 F.3d 996, 1005 (8th Cir. 2012).
Until recently, the Eighth Circuit Court of Appeals recognized two types of claims
arising under 29 U.S.C. § 2615(a)—interference claims and retaliation claims:
Two types of claims exist under the FMLA: (1)
“interference” or “(a)(1)” claims in which the employee
alleges that an employer denied or interfered with his [or her]
substantive rights under the FMLA and (2) “retaliation” or
“(a)(2)” claims in which the employee alleges that the
employer discriminated against him for exercising his [or her]
FMLA rights.
See Stallings, 447 F.3d at 1050. Eighth Circuit law was clear that a subsection (a)(1)
claim, or interference claim, “merely require[d] proof that the employer denied the
13

employee his [or her] entitlements under the FMLA,” while a subsection (a)(2) claim, or
retaliation claim, “require[d] proof of retaliatory intent.” Id.
The Eighth Circuit began to alter the framework under which it analyzed FMLA
claims in Phillips.

In a concurring opinion in Phillips, Judge Colloton cited the

Stallings framework and noted:
By its terms, however, subsection (a)(2) does not apply to
claims in which an employee “alleges that the employer
discriminated against him [or her] for exercising his [or her]
FMLA rights.” Rather, that subsection makes it unlawful for
an employer to discharge or otherwise discriminate against any
individual “for opposing any practice made unlawful by [the
FMLA].” 29 U.S.C. § 2615(a)(2) (emphasis added). This
prohibition is analogous to the sort of “retaliation” claim that
is familiar under Title VII, see 42 U.S.C. § 2000e-3(a), where
an employee alleges that the employer discriminated against
the employee for opposing what the employee reasonably
believed to be violations of Title VII by the employer. . . .
[S]ee . . . 60 Fed. Reg. 2180, 2218 (Jan. 6, 1995) (“[The
FMLA] makes it unlawful for an employer to discharge or in
any other manner discriminate against any individual for
opposing any practice made unlawful by the [FMLA]. This
opposition clause is derived from Title VII of the Civil Rights
Act of 1964 and is intended, according to the legislative
history, to be construed in the same manner.”). Some courts
have properly applied § 2615(a)(2) in this manner. E.g.,
Gruppo v. FedEx Freight Sys., Inc., No. 08-1006, 2008 WL
4596332 (10th Cir. Oct. 15, 2008); Cline v. Wal-Mart Stores,
Inc., 144 F.3d 294, 301-02 (4th Cir. 1998).
Phillips, 547 F.3d at 914 (Colloton, J., concurring) (first alteration in original). In
Pulczinski, this time in a majority opinion written by Judge Colloton, the Eighth Circuit
established that there are “three types of claims arising under these two subsections.”
Pulczinski, 691 F.3d at 1005; see also Brown v. City of Jacksonsville, 711 F.3d 883, 89091 (8th Cir. 2013).

14

The first type of claim, which arises under 29 U.S.C. § 2615(a)(1), “occurs where
an employer refuses to authorize leave under the FMLA or takes other action to avoid
responsibilities under the [FMLA].” Pulczinski, 691 F.3d at 1005; see also Brown, 711
F.3d at 890. While this claim was historically described as an “interference” claim, it may
more appropriately be described “as an ‘entitlement’ claim—an employee claims the denial
of a benefit to which he [or she] is entitled under the statute.” Pulczinksi, 691 F.3d at
1005. Although the name of this type of claim changed, the proof required to assert this
type of claim did not. As before, “[a]n employee proceeding on this theory need not show
that an employer acted with discriminatory intent.” Id.
The second type of claim, which arises under 29 U.S.C. § 2615(a)(2), occurs where
“an employee opposes any practice made unlawful under the FMLA” and the employer
takes adverse action against the employee for that reason. See id. at 1005-06; see also
Brown, 711 F.3d at 890. For example, “if an employee complains about an employer’s
refusal to comply with the statutory mandate to permit FMLA leave[,] then the employer
may not for that reason take adverse action against the employee who is engaged in the
opposition.” Pulczinski, 691 F.3d at 1006. This type of claim can be described as a
“retaliation” claim, id., and requires an employee to prove an employer’s discriminatory
intent. See Brown, 711 F.3d at 891.
The third type of claim, which was categorized as a subsection (a)(2) retaliation
claim in the Stallings framework, “arises when an employer takes adverse action against
an employee because the employee exercises rights to which he [or she] is entitled under
the FMLA.” Pulczinski, 691 F.3d at 1006. “In this scenario, the employer does not
prevent the employee from receiving FMLA benefits. Rather, it is alleged that after the
employee exercised his statutory rights, the employer discriminated against him [or her]
in the terms and conditions of employment.” Id. This claim “likely arises under the rule
of § 2615(a)(1) that an employer may not ‘interfere with, restrain, or deny the exercise of

15

or the attempt to exercise’ rights defined by the FMLA.” Id. (quoting 29 U.S.C.
§ 2615(a)(1)); see also Brown, 711 F.3d at 891 (noting that this type of claim arises under
§ 2615(a)(1)). The Eighth Circuit articulated the distinction between this type of claim and
the preceding two claims as follows:
To distinguish the “entitlement” claim under § 2615(a)(1), and
the “retaliation” claim under § 2615(a)(2), . . . it [is] helpful
to describe this sort of complaint as a “discrimination” claim.
See 29 C.F.R. § 825.220(c) (“The [FMLA]’s prohibition
against ‘interference’ prohibits an employer from
discriminating or retaliating against an employee . . . for
having exercised or attempted to exercise FMLA rights.”).
Pulczinski, 691 F.3d at 1006 (second alteration in original). Although pre-Pulczinski
subsection (a)(1) claims did not require an employee to show an employer’s discriminatory
intent and subsection (a)(1) entitlement claims still do not require an employee to show an
employer’s discriminatory intent, a subsection (a)(1) retaliatory discrimination claim
requires that the employee “prove that the employer was motivated by the employee’s
exercise of rights under the FMLA” when making the adverse employment decision. Id.;
see also Brown, 711 F.3d at 891 (noting that “a ‘discrimination’ claim under § 2615(a)(1)”
and “a ‘retaliation’ claim under § 2615(a)(2)” both “require proof of the employer’s
discriminatory intent”).
Regardless of the type of claim, “[t]he FMLA ‘provides no relief unless the
employee has been prejudiced by the violation.’” Pulczinski, 691 F.3d at 1006 (quoting
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)).
B. Hudson’s Claims
In the Complaint, Hudson indicates that “[u]pon his return from FMLA leave, [he]
suffered adverse employment actions in interference of his FMLA rights and in direct
retaliation for having taken that leave, which was a clear violation of the FMLA.”
Complaint ¶ 12 (emphasis added).

16

The parties have framed Hudson’s first claim as an “interference” claim arising out
of 29 U.S.C. § 2615(a)(1). The court agrees that this claim arises under § 2615(a)(1), but,
as directed by the framework of Pulczinski, the court will discuss this claim in terms of an
“entitlement” claim, because Hudson is asserting that he was deprived of a substantive
right under the FMLA when he was granted non-FMLA leave rather than FMLA leave.
See Resistance at 12. As discussed above, regardless of whether this claim is called an
“entitlement” claim or an “interference” claim, the proof required remains the same.
The parties have framed Hudson’s second claim as a “retaliation” claim arising out
of 29 U.S.C. § 2615(a)(2). In this claim, Hudson asserts that Tyson terminated his
employment in retaliation for him applying for and taking FMLA leave.10 Hudson’s
10

As discussed above, when Hudson filed the Complaint, he believed that he had
applied for FMLA leave and that Tyson had granted him FMLA leave. Accordingly,
Hudson alleged that Tyson retaliated against him for taking FMLA leave. In the
Resistance, however, Hudson states:
[Hudson] intended to apply for and believed that he had
applied for benefits under the FMLA. [Hudson] did not
realize, until [he] had the benefit of discovery, that what he
had been granted by Tyson[] was non-FMLA leave. In light
of that fact, this case seems to present more of an interference
claim than a retaliation claim.
Resistance at 12 (citations omitted). Hudson compares his case with Dollar v. Smithway
Motor Xpress, Inc., 787 F. Supp. 2d 896 (N.D. Iowa 2011), vacated in part on other
grounds, 710 F.3d 798 (8th Cir. 2013), a case in which, according to Hudson, “the
[d]efendant never offered [the] plaintiff FMLA leave, and [the plaintiff] never specifically
requested or took any FMLA leave. However, the [d]istrict [c]ourt found that an
interference claim existed because the plaintiff was eligible for leave, the plaintiff had a
serious health condition, the plaintiff provided adequate notice, and the benefits were
denied.” Id. After conceding that his claim is more of an interference claim, Hudson
immediately goes on to discuss why his FMLA interference claim should proceed to trial,
seemingly acknowledging that what he characterized as a retaliation claim has no merit
because Tyson did not grant Hudson FMLA leave. However, in the final pages of the
(continued...)
17

retaliation claim should be classified as a discrimination claim, arising under subsection
(a)(1), because he claims that he was discharged for taking leave. However, the court will
analyze Hudson’s retaliation/discrimination claim as a pre-Pulczinski retaliation claim,
because Tyson did not object to this characterization by Hudson. See Quinn v. St. Louis
Cnty., 653 F.3d 745, 754 n.7 (8th Cir. 2011). The court notes that the outcome of this
issue does not turn on how Hudson’s claim is classified; Hudson is required to show
discriminatory intent whether his claim is analyzed as a subsection (a)(2) pre-Pulczinski
retaliation claim or a subsection (a)(1) Pulczinski discrimination claim. See Brown, 711
F.3d at 891.11
C. Entitlement Claim
1.

Parties’ arguments

In the Motion, Tyson does not specifically move for summary judgment on
Hudson’s interference, or entitlement, claim, but only moves for summary judgment on
Hudson’s retaliation claim. In the Resistance, Hudson argues that his entitlement claim
should proceed to trial and not be subject to the Motion because Tyson did not move for
summary judgment on the entitlement claim and because only one motion for summary
judgment is allowed pursuant to the court’s February 8, 2013 Order (docket no. 8).
In its Reply, Tyson argues that Hudson admitted in his deposition that he was
granted a leave of absence under the FMLA, which precludes a finding that Tyson

10

(...continued)
Resistance, Hudson argues that Tyson failed to prove that it terminated Hudson for reasons
unrelated to Hudson’s attempt to exercise his FMLA rights, which is an argument based
on a “retaliation,” or what is now considered a “discrimination,” claim—not a claim that
Tyson denied Hudson substantive rights under the FMLA. Since Hudson makes arguments
related to a discriminatory retaliation claim, the court will address this claim as well.
11

Hudson does not set forth facts or argue that he has a subsection (a)(2) retaliation
claim, as such claim is classified under the Pulczinski framework
18

interfered with his FMLA rights by denying him anything he was entitled to.12 Moreover,
Tyson asserts that it relied on the following exchange in Hudson’s deposition in concluding
that Hudson was not pursuing an entitlement claim:
Q.

A.
Q.
A.

And, sir, I’m looking at paragraph 713 [and 1214 of the
Complaint], is it your claim in this lawsuit that Tyson
retaliated against you for requesting and taking FMLA
leave?
Yes, I believe so.
And is that the basis of your lawsuit here, to your
understanding, sir?
Yes, sir.

Reply at 9 (quoting Hudson Deposition, Tyson App’x at 20). Tyson argues that Hudson
should not be allowed to pursue his entitlement claim because Hudson did not amend the
answer given in his deposition to note that he was pursuing an entitlement claim, in
addition to the retaliation claim, within the thirty days required by Federal Rule of Civil
Procedure 30(e).
Even if Hudson is not barred from pursuing his entitlement claim, Tyson argues that
the court should grant summary judgment on the entitlement claim because his claim has

12

The court notes that this is a peculiar argument given that in other parts of the
record Tyson asserts that Hudson was not granted FMLA leave. As discussed above,
Hudson did not know that he had not been granted FMLA leave until discovery,
presumably after he was deposed. Accordingly, Tyson’s argument that Hudson does not
have an entitlement claim because he admitted to receiving FMLA leave at his deposition
has no merit.
13

Paragraph seven states: “Subsequent to his return from FMLA leave, [Hudson]
was immediately terminated in retaliation for having taken the leave.” Complaint ¶ 7.
14

The court notes that this exchange was misquoted in the Reply. During the
deposition, Tyson referenced paragraph twelve as well as paragraph seven. Paragraph
twelve states: “Upon his return from FMLA leave, [Hudson] suffered adverse employment
actions in interference of this FMLA rights and in direct retaliation for having taken that
leave, which was a clear violation of the FMLA.” Id. ¶ 12.
19

no merit. Tyson contends that it “made clear in seeking summary judgment that ‘. . .
Hudson identified nothing that would qualify him for FMLA leave even had he chosen to
seek it.’” Reply at 10 (quoting Brief in Support of Motion at 13). Tyson also argues that
Hudson did not indicate that he was requesting FMLA leave to anyone involved in the
leave process at Tyson and did not present any illness or set of facts to anyone involved
in the process that could warrant FMLA leave. Tyson notes that Dr. Kettman’s note,
which Hudson showed to health services, only indicated that “Hudson has been under my
care 12/28/11 to 1/7/12 for illness [and] was unable to work.” January 2, 2012 Work
Release, Tyson App’x at 32. Tyson argues that although Hudson claims to have told
McElroy, after he signed the leave form and left health services on January 3, 2012, that
Dr. Kettman was taking him off work due to what might have been a mild heart attack,
Hudson’s statement to McElroy was false. Tyson asserts that Dr. Kettman did not
diagnose Hudson with a heart attack or heart issues while Hudson was employed at Tyson,
which Tyson states is supported by Dr. Kettman’s testimony. Accordingly, Tyson argues
that since no grounds to support FMLA leave existed at the time of the alleged interference
with Hudson’s entitlement, it did not interfere with any of Hudson’s substantive rights
under the FMLA. Moreover, Tyson contends that Hudson was not prejudiced by any
potential interference with his FMLA rights because although he was not granted FMLA
leave, he was granted non-FMLA leave.
Hudson argues that he was eligible for FMLA leave based on his work experience15
and that he had a “‘serious health condition’” that involved “‘continuing treatment by a
healthcare provider.’” Resistance at 15 (quoting 29 C.F.R. § 825.113(a)). Hudson also
claims that he provided Tyson with adequate notice of his need for FMLA leave because

15

Tyson does not dispute that Hudson was an “eligible employee” pursuant to 29
U.S.C. § 2611(2) and that Tyson is a “covered employer” pursuant to 29 U.S.C.
§ 2611(4).
20

he informed Tyson through a designated spokesperson, Rambo, that he would be absent
from work on December 28, 2011, and because he sent Beganovic a text message that
indicated he would be gone for multiple days because of a health condition. Even if this
was not adequate notice, Hudson contends that he gave adequate notice on January 3,
2012, the third business day after he was unable to work, which was the deadline pursuant
to Tyson’s policy. Hudson also claims that he was not required to specifically state he was
seeking FMLA leave; rather, Hudson contends that he intended to seek FMLA leave and
did not indicate that he was not seeking FMLA leave. Hudson also argues that Tyson
failed to prove the reason for his termination was unrelated to his attempt to exercise his
FMLA rights, which, accordingly, entitles Hudson to relief.
2.

Applicable law

The Eighth Circuit has summarized an interference claim, or entitlement claim,16
as follows:
An employer is prohibited from interfering with,
restraining, or denying an employee’s exercise of or attempted
exercise[] of any right contained in the FMLA. 29 U.S.C.
§ 2615(a)(1). Interference includes “not only refusing to
authorize FMLA leave, but discouraging an employee from
using such leave. It would also include manipulation by a
covered employer to avoid responsibilities under FMLA.” 29
C.F.R. § 825.220(b). An employer’s action that deters an
employee from participating in protected activities constitutes
an “interference” or “restraint” of the employee’s exercise of
his [or her] rights. Bachelder v. Am. W. Airlines, Inc., 259
F.3d 1112, 1124 (9th Cir. 2001). “A violation of this
provision creates what is commonly known as the interference
theory of recovery.” Throneberry v. McGehee Desha Cnty.
Hosp., 403 F.3d 972, 977 (8th Cir. 2005). When an employer

16

In Brown, 711 F.3d at 890, these terms are used synonymously, and prior case
law regarding interference claims is relevant to Hudson’s entitlement claim.
21

attaches negative consequences17 to the exercise of protected
rights, it has “chilled” the employee’s willingness to exercise
those rights because he or she does not want to be fired or
disciplined for doing so. Bachelder, 259 F.3d at 1124.
Stallings, 447 F.3d at 1050 (footnote added).
“An employee can prevail under an interference theory if he was denied substantive
rights under the FMLA for a reason connected with his FMLA leave.” Id. The Eighth
Circuit “has recognized than an employee can prove interference with an FMLA right
regardless of the employer’s intent.” Id. (citing Throneberry, 403 F.3d at 979).
“The initial burden of proof in an FMLA interference case is on the employee to
‘show only that he or she was entitled to the benefit denied.’” Ballato, 676 F.3d at 772
(quoting Stallings, 447 F.3d at 1050) (internal quotation marks omitted). Accordingly,
interference claims can be described “as an ‘entitlement’ claim—an employee claims the
denial of a benefit to which he is entitled under the statute.” Pulczinski, 691 F.3d at 1005.
“The FMLA ‘provides no relief unless the employee has been prejudiced by the
violation.’” Id. at 1006 (quoting Ragsdale, 535 U.S. at 89)
3.

Application

As an initial matter, the court concludes that Hudson did not forfeit his entitlement
claim by not mentioning it at his deposition. This case is unlike Carter v. Ford Motor Co.,
561 F.3d 562 (6th Cir. 2009), a case to which Tyson cites, in which the Sixth Circuit
Court of Appeals upheld the lower court’s refusal to allow the plaintiff’s claim to go
forward because the defendant had no notice of the claim and because the plaintiff
expressly disavowed the claim during the course of discovery. See id. at 569. In this
case, Tyson had notice of the entitlement claim from the plain language of the Complaint

17

Negative consequences include using “the taking of FMLA leave as a negative
factor in employment actions, such as hiring, promotions or disciplinary actions.” Ballato
v. Comcast Corp., 676 F.3d 768, 772 (8th Cir. 2012) (quoting 29 C.F.R. § 825.220(c)).
22

and Hudson never specifically refuted that he was pursuing an entitlement claim as well
as a retaliation claim.
Although Hudson did not forfeit his entitlement claim by not referencing it in his
deposition, Tyson also did not forfeit the ability to move for summary judgment on the
entitlement claim by not specifically discussing the entitlement claim in the Motion. In the
Motion, Tyson made several arguments that would preclude Hudson from prevailing on
the retaliation claim, as well as the entitlement claim. Given the nature of this dispute, the
court does not find it appropriate to preclude Tyson from seeking summary judgment on
the entitlement claim in addition to the retaliation claim. Accordingly, the court will
address the merits of Tyson’s argument that the court should grant summary judgment on
the entitlement claim in its favor.
For purposes of Hudson’s entitlement claim, the court assumes, arguendo, that
Hudson was entitled to FMLA leave, gave adequate notice to Tyson regarding such leave
and that Tyson did not grant Hudson FMLA leave. However, Hudson does not dispute
that Tyson granted him sick leave, despite it not being classified as FMLA leave. See
Resistance at 9 (“[Hudson]’s timely request for leave was neither delayed nor denied.
Instead, on January 4, 2012, [Hudson]’s request for leave was promptly approved by Jim
Hook, the [Human Resources] Manager.”); Beganovic Deposition, Hudson App’x at 5-6;
Leave of Absence Application, Tyson App’x at 33. Moreover, Hudson does not allege
that “he was prejudiced by the misclassification of this absence . . . [or that] [h]e was . . .
denied compensation or benefits.” See Pulczinski, 691 F.3d at 1007. Eighth Circuit law
is clear that “[t]he FMLA ‘provides no relief unless the employee has been prejudiced by
the violation.’” Id. at 1006 (quoting Ragsdale, 535 U.S. at 89). Accordingly, the court
shall grant the Motion to the extent that it requests the court grant summary judgment in
favor of Tyson with respect to the entitlement claim.

23

D. Retaliation Claim
1.

Parties’ arguments

Tyson argues that Hudson has no direct evidence that it discriminated against
Hudson for taking FMLA leave, which means the case should be analyzed under the
McDonnell Douglas burden-shifting framework. Tyson also contends that Hudson has not
shown that he exercised any right afforded by the FMLA, which is the first requirement
to establish a prima facie case of retaliation, because Hudson did not apply for and take
FMLA leave. Moreover, Tyson asserts that Hudson cannot show “that there was a causal
connection between his non-existent exercise of rights and the end of his employment,”
which is the third requirement to establish a prima facie case of retaliation. Brief in
Support of Motion at 9. Tyson concedes that there was an adverse employment action,
which is the second requirement to establish a prima facie case of retaliation under the
FMLA. Even if Hudson could establish a prima facie case of retaliation, Tyson argues it
can show that Hudson was terminated for a “legitimate, non-retaliatory reason” that was
not pretextual. Id.
Hudson does not specifically address the retaliation claim in his Resistance because
he states that “this case seems to present more of an interference claim th[a]n a retaliation
claim” given that Hudson was not granted FMLA leave despite meeting the requirements.
Resistance at 12. However, in discussing his interference/entitlement claim, Hudson does
contend that Tyson has not met its burden to show that it terminated Hudson for a reason
unrelated to his attempted exercise of his FMLA rights.18
2.

Applicable law

The Eighth Circuit has summarized an FMLA retaliation claim as follows:

18

Hudson seems to conflate an interference/entitlement claim with a
retaliation/discrimination claim. Nonetheless, the court will construe the pleadings in the
light most favorable to Hudson.
24

The FMLA prohibits employers from discriminating
against an employee for asserting his rights under the
[FMLA]. Darby v. Bratch, 287 F.3d 637, 679 (8th Cir. 2002)
(citing 29 U.S.C. § 2615(a)(2)). “This prohibition necessarily
includes consideration of an employee’s use of FMLA leave as
a negative factor in an employment action.” Id. “Basing an
adverse employment action on an employee’s use of leave . . .
is therefore actionable.” Smith v. Allen Health Sys., Inc., 302
F.3d 827, 832 (8th Cir. 2002).
Stallings, 447 F.3d at 1051 (last alteration in original).

“[P]roof [of retaliatory

discrimination] may come from direct evidence or indirect evidence using the McDonnell
Douglas burden-shifting framework.” Brown, 711 F.3d at 891 (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-06 (1973)).

If there is no direct evidence of

discriminatory retaliation, a plaintiff must establish a prima facie case of retaliatory
discrimination. See Philips, 547 F.3d at 912. “To establish a prima facie case of FMLA
discrimination, an employee must show: (1) that he engaged in activity protected under the
[FMLA], (2) that he suffered a materially adverse employment action, and (3) that a causal
connection existed between the employee’s action and the adverse employment action.”
Pulczinski, 691 F.3d at 1007. “An employee can establish a causal link between her [or
his] protected activity and the adverse employment action through ‘the timing of the two
events.’” Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir. 2006) (quoting Eliserio
v. United Steelworkers of America Local 310, 398 F.3d 1071, 1079 (8th Cir. 2005)).
Although “[t]he mere coincidence of timing . . . is rarely sufficient to establish the
causation element,” the Eighth Circuit has held that “temporal proximity alone was
sufficient to create an inference of the causal link,” when the temporal proximity is “‘very
close.’” Id. (quoting Wallace v. Sparks Health Sys., 415 F.3d 853, 859 (8th Cir. 2005)).
If the employee establishes a prima facie case of retaliatory discrimination, the
employer must “come forward with evidence of a legitimate, nondiscriminatory reason for
the adverse action.” Phillips, 547 F.3d at 912. The employer’s burden “‘is not onerous
25

and the showing need not be made by a preponderance of the evidence.’” Id. (quoting
Wallace, 415 F.3d at 860).
If the employer is able to do so, the employee “must come forward with evidence
that creates an issue of fact as to whether the asserted reason was pretext for
discrimination.” Id. “The employee may demonstrate pretext by two different methods.”
Stallings, 447 F.3d at 1052. “‘First, a plaintiff may succeed indirectly by showing that
the employer’s proffered explanation is unworthy of credence.’” Id. (quoting Wallace v.
DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006)) (internal quotation marks
omitted). “Under this method, the employee must rebut the employer’s ‘underlying factual
claims’ by establishing that the employer’s explanation has no basis in fact.” Id. (quoting
Wallace, 442 F.3d at 1120). “Second, the plaintiff may prove pretext ‘directly by
persuading the court that a [prohibited] reason more likely motivated the employer.’” Id.
(alteration in original) (quoting Wallace, 442 F.3d at 1120) (internal quotation marks
omitted). “Under this method, the employee rebuts ‘the employer’s ultimate factual claim
regarding the absence of retaliatory intent.’” Id. (quoting Wallace, 442 F.3d at 1121).
“The employee must demonstrate ‘that sufficient evidence of intentional retaliation exists
for a jury to believe the plaintiff’s allegations and find that the proffered explanation was
not the true motivating explanation.’” Id. (quoting Wallace, 442 F.3d at 1121).
3.

Application

Hudson has put forth no direct evidence sufficient to establish that Tyson retaliated
against him for exercising his FMLA rights. Hudson admitted in his deposition that he has
no knowledge of anyone’s employment at Tyson being terminated for taking FMLA leave,
that he has no evidence that Wray was biased against employees who took FMLA leave
and that he has no knowledge of Wray making inappropriate comments about his or any
other employee’s FMLA leave. Hudson also acknowledges that he is not aware of
Beganovic or Hart making any inappropriate comments about his or any other employee’s

26

use of FMLA leave. Hudson also does not dispute that Wray personally granted many
requests for FMLA leave. Accordingly, Hudson has put forth no direct evidence of
retaliatory discrimination and, therefore, Hudson must establish a prima facie case of
retaliatory discrimination pursuant to the McDonnell Douglas burden shifting framework.
To establish a prima facie case of retaliatory discrimination, Hudson must first show
that he engaged in activity protected under the FMLA. The court assumes, arguendo, that
Hudson engaged in a protected activity when he requested leave on January 3, 2012,
because he was an eligible employee, Tyson was a covered employer and Hudson provided
Tyson with adequate notice that he may require FMLA leave.
The second element Hudson must show is that he suffered an adverse employment
action after requesting FMLA leave. Here, Tyson concedes that Hudson suffered an
adverse employment action when Tyson terminated his employment.
Finally, Hudson must show a causal connection between the adverse employment
action and his request for FMLA leave. Given the exceedingly close temporal connection
between the protected conduct and the adverse employment action, Hudson has
demonstrated a causal link between the protected activity and the adverse employment
action. See Hite, 446 F.3d at 866. Accordingly, Hudson has demonstrated a prima facie
case of retaliatory discrimination.
Even though Hudson put forth a prima facie case of retaliatory discrimination, his
claim must fail because Tyson has “come forward with evidence of a legitimate,
nondiscriminatory reason for the adverse action,” Phillips, 547 F.3d at 912, and Hudson
has not demonstrated that this reason is pretextual. Tyson states that it terminated
Hudson’s employment because Hudson “was a no call/no show for multiple days.” Brief
in Support of Motion at 9. Pursuant to Tyson’s policies, “[a]ll Management Team
Members are expected to personally call their direct supervisor to report an unplanned
absence or to report that they will be late.” Attendance Expectations Memo, Tyson App’x

27

at 77. Although Hudson sent a text message to Beganovic indicating that he may be gone
for a few days and he told his then-girlfriend to tell Beganovic that he would be out for a
few days, there is no indication that Wray or anyone else involved in the termination
process knew that Hudson would be absent on any day after December 28, 2013. In fact,
Hudson even concedes that he has no evidence to show that Wray did not genuinely believe
Hudson was a no call/no show on the days he was absent, which is her stated reason for
Hudson’s termination. Certainly, Tyson has met its burden, which is not onerous, of a
legitimate, nondiscriminatory reason for adverse employment action given the fact that
Hudson was a no call/no show for three days, which is indisputedly what Wray believed.
This is especially true considering that less than a year earlier, Hudson had quit work only
to have Tyson hire him back and Hudson admitted to Wray that he did not call to report
his absences because he was upset with Beganovic.
Since Hudson has not in any way demonstrated that Tyson’s reason for terminating
him was pretextual, his claim must fail. Hudson has not demonstrated that Tyson’s
proffered explanation has no basis in fact or that it is more likely that Tyson terminated
Hudson’s employment because he asserted his FMLA rights than because he was a no
show/no call for three days. There is absolutely no indication whatsoever that anyone at
Tyson involved with Hudson’s termination knew that Hudson had sought FMLA leave,
much less that he had been given FMLA leave, nor is there any indication that anyone at
Tyson had any animus whatsoever toward employees who sought or took FMLA leave.
Hudson fails to meet his burden to “come forward with evidence that creates an issue of
fact as to whether the asserted reason [for his termination] was pretext for discrimination.”
See Phillips, 547 F.3d at 912. Accordingly, the court shall grant the Motion to the extent
that it requests the court grant summary judgment in favor of Tyson with respect to the
retaliation claim.

28

VII. CONCLUSION
In light of the foregoing, Tyson’s Motion (docket no. 12) is GRANTED. The Clerk
of Court is DIRECTED to enter judgment in favor of Tyson Fresh Meats, Inc. and against
Delbert E. Hudson and to CLOSE THIS CASE.
IT IS SO ORDERED.
DATED this 26th day of February, 2014.

29