Srouder et al v. Dana Light Axle Manufacturing, LLC
MEMORANDUM OPINION & ORDER: It is ordered that Defendant's 31 MOTION for Summary Judgment be and is hereby GRANTED. Plaintiff White's claims are hereby DISMISSED WITH PREJUDICE. Signed by Judge William O. Bertelsman on 3/30/2012.(TED)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 10-155-WOB-CJS
DANA LIGHT AXLE
This matter is before the Court on Defendant’s Motion for
Summary Judgment (Doc. 31) as to claims asserted by Plaintiff
Matt White (“White”).
The Court heard oral argument on this
motion on March 26, 2012. James Moore represented Plaintiff
White and Karen Paulin represented Defendant Dana Light Axle
Manufacturing, LLC (“Defendant”).
Official court reporter Joan
Averdick recorded the proceedings.
Factual and Procedural Background
In September 2006, White began working as an assembly
worker for Defendant, who manufactures driveline products, power
technologies, and genuine service parts for light- and heavyduty vehicle manufacturers.
Although White was a satisfactory
worker, he had a history of attendance issues.
(White Depo. at
Defendant’s Relevant Policies
In order to keep the assembly lines running, Defendant
employed a strict “no-fault” Attendance Policy at all relevant
(Doc. 31-2, Race Aff., at ¶ 7).
Under this policy, an
employee would be assessed either a complete or partial
occurrence for all time missed from work, except as otherwise
provided in the policy.
(Id., Attendance Policy, at 16).
occurrences within a twelve-month period resulted in the
(Id. at 17).
For each and every day an employee was absent, excused or
unexcused, the employee was required to call the “call-in line”
before the shift start time.
(Id.); (White Depo. at 31)
(stating that “if you were going to be absent, you had to call
If an employee was absent for two days1 without calling
in, and he had not previously arranged for extended leave, he
was deemed to have “voluntarily” quit.
(Doc. 31-2, Attendance
Policy, at 16).
Defendant’s Family and Medical Leave Act (“FMLA”) policy
permitted an employee to take leave for either his own serious
health condition or that of his immediate family.
The FMLA policy provided:
(Id. at 26).
“Dana requires medical certification
to support a request for leave because of a serious health
It appears that this policy was changed when a new Employee Handbook was
issued in November 2009, shortly after White’s termination. Under that
policy, an employee who was absent for three consecutive days without calling
in was deemed to have voluntarily resigned.
condition,” and “[t]aking leave may be denied or delayed if
requirements are not met.”
(Id. at 27).
White’s History of FMLA Use
Throughout his employment, White used FMLA leave for
several medical conditions, including gout, chronic back pain,
and other leg and foot pain unrelated to the gout.2
at 60, 63, 65, 66).
On each occasion, White called the call-in
line and stated that he was taking an FMLA day.
Although White regularly used FMLA leave, his medical
certifications were often incomplete, missing critical
information such as the physician’s signature or the medical
He was counseled by Human Resources on several
occasions about these insufficiencies.
(Id. at 87);(Doc. 31-2,
Race Aff., at ¶ 26).
Toward the end of August 2009, White took several days off
asserting FMLA leave.
(White Depo. at 70).
(“Race”), the Human Resources Manager, requested medical
certification supporting this leave, and White timely submitted
(Doc. 31-2, at Race Aff., at ¶¶ 27-28).
However, the certification was incomplete, and Race gave White
He also suffered from hernias and had several hernia repair surgeries before
he worked for Defendant, but he never took FMLA leave for his hernia
condition prior to the surgery scheduled for October 2009. (Id. at 104-105).
seven additional days to provide a completed certification.3
(Id. at ¶ 28).
While this certification issue was still pending, White
again took FMLA leave, and the deadline for providing the
revised certification supporting the August absences expired
while he was absent.
(White Depo. at 74-75).
returned to work, two days after the extended deadline, he
submitted the medical certification to Karen Van Holten (“Van
Holten”), the Human Resources Supervisor.
(Doc. 31-5, Van
Holten Aff., at ¶ 22).
However, the certification was still incomplete, so White
was sent home, and a meeting was ultimately held on September 30
to discuss the recurring issue.
(Id.); (Doc. 31-2, Race Aff.,
at ¶¶ 30-31).
The September 30 Meeting4
With regard to White’s tardiness in providing the required
certification, White explained that he failed to submit the
medical certification by the deadline because he was ill.
31-2, Race Aff., at ¶ 32).
Race’s notes memorializing this
meeting reflect that he stated “he was sick and had a hole in
his stomach and that he was going to have surgery soon.”
Around this time, White began to suspect that he might have a hernia.
Therefore, he visited a doctor during his off-work hours, who then referred
him to a surgeon. (Doc. 31-10, at 6). Eventually it was confirmed that he
had a hernia and would require surgery.
There is some dispute as to what was said during this meeting, but this
dispute is not material.
Exhibit 14, at 69).
In light of that explanation, Race, who had
previously decided to terminate White, changed her mind.
Race Aff., at ¶ 32).
She also agreed to accept the late
submission of the certification in that instance.
14, at 69).
Additionally, White submitted a separate medical
certification supporting the days taken in September,5 and this
certification explained that White was being referred to a
surgeon for evaluation of a possible hernia.6
(Doc. 31-2, Race
Aff., at ¶ 33); (Id., Exhibit 16, at 76).
White also submitted a physician’s note restricting him
from lifting more than twenty pounds.
(Id., Race Aff., at ¶
Race informed White that, with this restriction, there was
no assignment currently available for him at the plant.
Exhibit 14, at 69); (White Depo. at 98-99).
volunteered to get the restriction lifted and stated that he
would do that and be at work the following day.
Exhibit 14, at 69); (White Depo. at 80-81).
However, this certification was also missing important information, which
Race detailed in a memorandum to White dated October 1, 2009. (Id., Exhibit
16, at 74). This memorandum gave White an extension to provide the completed
certification, requiring that it be returned by October 7, 2009. (Id.).
In fact, at this point, White had already seen the surgeon, who had
confirmed the existence of the hernia. (White Depo. at 109, 112). A hernia
repair surgery was scheduled for October 7, and the surgeon had informed
White that he would need six to eight weeks to recover. (Id. at 119).
However, the FMLA certification did not include this information.
White further stated that he had received short-term
disability paperwork from Van Holten, and that he would complete
it and return it the next day.
(Doc. 31-2, Exhibit 14, at 70).
He also informed them that he might need surgery but,
according to Race, he did not specify the reason for the surgery
or that it had already been scheduled for a date certain.
testified that at no time during this meeting did White use the
(Id., Race Aff., at ¶ 33).
Conversely, White testified that he expressly informed Race
that he was having hernia surgery the following week and that he
would need to visit the doctor for pre-operation preparation on
Friday, October 2.
(White Depo. at 80).
At the conclusion of the meeting, Race understood that
White would be returning to work the following day.
Race Aff., at ¶ 33).
After the meeting, White attempted to have the lifting
restriction removed but the doctor refused.
(White Depo. at
White then contacted Van Holten and told her that the
doctor would not remove the restriction, and she suggested that
he obtain short-term disability paperwork.7
Van Holten testified that she did not receive a phone call from White
regarding the status of his lifting restriction. (Doc. 31-5, Van Holten
Aff., at ¶ 24). She also testified that White did request short-term
disability paperwork at some point in late September 2009, which she provided
to him. (Id. at ¶ 23).
It is undisputed that White was absent on October 1, 2, 5,
and 6, and he failed to call in as required by Defendant’s
(Doc. 31-2, Race Aff., at ¶ 36); (White
Depo. at 94-95).
White testified that he did not come to work because he was
unable to get his lifting restriction removed, and had been told
he could not work because there were no light-duty assignments
(White Depo. at 98-99).
He further testified that
he did not call in because they knew he would not be there and,
because he was unable to work, he believed that he did not need
to call in.
(Id. at 94, 99).
Pursuant to Defendant’s policy, White’s continued failure
to call in his absences resulted in a “voluntary quit.”
October 6, 2009, Race mailed White a termination letter to that
(Doc. 31-2, Race Aff., at ¶ 36).
On October 7, 2009, before White had received the
termination letter, he took the certification supporting the
September absences, which did not mention the hernia surgery,
and placed it on Race’s desk before he went to the hospital for
his hernia surgery.
(Id. at ¶ 38); (Doc. 31-16, Exhibit O).
The letter states: “[a]s of Monday, October
that you have been absent for more than three
without notifying your Supervisor. As stated
Article 22, our records will indicate you are
role at Dana.” (Doc. 31-2, at 80).
5, 2009, our records indicate
(3) consecutive working days
in the union contract under
voluntarily resigning from your
On October 9, 2009, White submitted short-term disability
paperwork which purported to cover the hernia surgery and the
six-week recovery period.
(Doc. 31-2, Race Aff., at ¶ 39).
Importantly, White concedes that he never provided
Defendant with FMLA medical certification regarding the hernia
repair surgery or the recuperation time either before or after
(White Depo. at 132-34).
White filed his Complaint (Doc. 1) on July 16, 2010,
alleging claims of FMLA interference and retaliation, and an
Amended Complaint was later filed (Doc. 15).
its Motion for Summary Judgment on November 15, 2011.
In his response, White abandoned his retaliation claim.
(Doc. 32, at 1, n.1).
Accordingly, only White’s interference
claim remains before the Court, and it is ripe for adjudication.
Rule 56(a) of the Federal Rules of Civil Procedure provides
in relevant part that: “[t]he court shall grant summary judgment
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
Fed. R. Civ. P. 56(a).
Rule 56(c)(1) further provides
A party asserting that a fact cannot be or is genuinely
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support
Fed. R. Civ. P. 56(c)(1).
Under Rule 56, the moving party bears the burden of proving
that no genuine issue of material fact exists. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (l986).
court must construe the evidence and draw all reasonable
inferences in favor of the nonmoving party.
Id. at 587.
In reviewing a motion for summary judgment, a court must
determine whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
FMLA Interference Claim
To establish an interference claim under the FMLA, a
plaintiff must demonstrate: (1) he was an eligible employee; (2)
the defendant was an employer under the FMLA; (3) he was
entitled to FMLA leave; (4) he gave sufficient notice of the
leave; and (5) the employer denied the employee FMLA benefits.9
There is no dispute that Dana is an “employer” as defined by the FMLA, and
for purposes of summary judgment, Defendant conceded that White was an
“eligible employee.” (See 31-1, at 21 n. 13).
See Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir.
The parties focus their arguments on whether White provided
Defendant with sufficient notice of his upcoming hernia surgery
during the September 30 meeting, thus entitling him to FMLA
White contends there is a genuine issue as to this fact,
thus precluding summary judgment.
However, after careful review of the record, the Court
concludes that this dispute of fact is not material because the
undisputed evidence demonstrates that: (1) White does not
contend he was entitled to FMLA for the absences resulting in
his termination; and (2) he was terminated for his failure to
comply with the call-in requirement of the Attendance Policy,
not for any issue relating to FMLA leave, and therefore
Defendant did not interfere with White’s FMLA benefits.
Importantly, White does not contend that he was entitled to
FMLA leave for the absences which resulted in his termination.
He specifically testified that he did not work those days
because he was unable to have his lifting restriction removed,
and so he believed there was no work for him.
(White Depo. at
While White argues that he was entitled to leave for his
hernia surgery, he was not terminated for absences on or after
his hernia surgery.
In fact, he had been deemed to have
voluntarily quit before his hernia surgery, and so whether he
was entitled to FMLA leave for the hernia surgery is irrelevant.
Additionally, even if White argued that his lifting
restriction somehow qualified him for FMLA leave for those days,
he concedes that he never provided Defendant with FMLA medical
certification supporting this condition during these days.
The certification he provided Defendant on the day
of his surgery mentioned the lifting restriction, but it
supported the September absences, not the October absences.
(See Doc. 31-16, at 3).
Additionally, the only documentation
addressing the hernia surgery and related time off was the
short-term disability paperwork, not an FMLA certification.
(See Doc. 31-2, at 87).
Moreover, all of this documentation was submitted after
White had already been terminated and, therefore, his claim
See Hammon v. DHL Airways, Inc., 165 F.3d 441, 451
(6th Cir. 2004) (concluding that an FMLA claim fails where the
plaintiff failed to notify his employer of his qualifying
condition and to request leave for such condition during his
employment, but only did so after his employment had ended).
However, even assuming White was entitled to FMLA leave for
the days supporting his termination, the undisputed fact remains
that he did not call-in as required by the Attendance Policy.
An employer is permitted to implement leave policies, such
as call-in requirements, to ensure that employees do not abuse
leave, and these policies are enforceable even during FMLA
See Allen v. Butler Co. Comm’rs, 331 F. App’x 389, 396
(6th Cir. 2009).
See also Callison v. City of Philadelphia, 430
F.3d 117, 121 (3d Cir. 2005) (recognizing that the FMLA does not
entitle employees to a variance from neutral rules).
“An employee lawfully may be dismissed, preventing him from
exercising his statutory rights to FMLA leave or reinstatement,
but only if the dismissal would have occurred regardless of the
employee's request for or taking of FMLA leave.” Arban v. West
Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003) (citing Gunnell
v. Utah Valley State Coll., 152 F.3d 1253, 1262 (10th Cir.
See also Edgar, 443 F.3d at 508 (noting that
“interference with an employee’s FMLA rights does not constitute
a violation if the employer has a legitimate reason unrelated to
the exercise of FMLA rights for engaging in the challenged
It is undisputed that White was absent October 1, 2, 5, and
6, and that he did not call in on any of these days.
Depo. at 94-95).
White’s termination letter clearly states that
he voluntarily quit because he was absent for more than three
days10 without calling in, and this reason is in no way related
to his use of FMLA leave.
(Doc. 31-2, Exhibit 17, at 80).
Therefore, White’s failure to comply with the requirements
of the Attendance Policy justified White’s termination, and
Defendant did not violate the FMLA.11
See Huberty v. Time Warner
Entm’t Co., No. 5:10cv2316, 2012 WL 406983, at *6 (N.D. Ohio
Feb. 8, 2012) (concluding that an employer’s termination of an
employee for failure to call in as required under an attendance
policy did not constitute interference with FMLA rights).
Therefore, having reviewed this matter, and the Court being
otherwise advised, IT IS ORDERED that Defendant’s Motion for
Summary Judgment (Doc. 31) be, and is hereby, GRANTED.
Plaintiff White’s claims12 are hereby DISMISSED WITH PREJUDICE.
This 30th day of March, 2012.
While the Attendance Policy in place at that time stated that a voluntary
quit occurred after two consecutive days, the policy was changed around the
time of White’s termination, which likely accounted for the letter’s
reference to three, rather than two, days.
Because the Court concludes that White’s claim fails on this ground, it
will not address the parties’ arguments regarding the sufficiency of notice.
In the Amended Complaint, Plaintiff White refers to claims brought pursuant
to state law. However, as he has failed to develop these claims or even
mention them in his Response to the Motion for Summary Judgment, the Court
presumes that he has abandoned them.
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