Ray v. AT&T et al

Filing 100

MEMORANDUM OPINION & ORDER: (1) Defendants'motion in limine to exclude Scott R. Bauries 74 be, and is hereby, GRANTED; (2) Defendants' motion for summary judgment, 75 be, and is hereby, GRANTED; (3) Defendants' motio n to strike one of Plaintiff's exhibits 86 be, and is hereby, DENIED AS MOOT; (4) Defendant's motion to supplement Defendants' motion in limine 85 be, and is hereby, GRANTED; and (5) A separate judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 2/3/2020.(ECO)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:17-cv-68 (WOB-CJS)
ADAM RAY

PLAINTIFF

VS.

MEMORANDUM OPINION AND ORDER

AT&T MOBILITY LLC, ET AL.

DEFENDANTS

This matter is before the Court on Defendants’ motion
in limine to exclude Scott R. Bauries, J.D., Ph.D, (Doc.
74); Defendants’ motion for summary judgment, (Doc. 75);
Defendants’ motion to strike one of Plaintiff’s exhibits
(Doc. 86), cf. (Doc. 77-53); and Defendants’ motion to
supplement Defendants’ motion in limine. (Doc. 85).
The Court previously heard oral argument on these
motions

and

took

them

under

submission

parties’ efforts to mediate this matter.

pending

the

(Doc. 89).

The

parties have notified the Court that those efforts were
unsuccessful.

(Doc. 99).

The Court now issues the following Memorandum Opinion
and Order.

Factual and Procedural Background
Plaintiff

Adam

Ray

was

hired

by

Defendant

AT&T

Mobility, LLC (“AT&T”) on January 2, 2014, as a part-time
retail sales consultant at one of AT&T’s Kentucky stores.
(Doc.

1-2,

¶¶

2–6);

(Doc.

75-2,

¶¶

7–9).

Part-time

employees are scheduled to work “up to 28 hours per week.”
(Doc. 75-2, ¶ 11).
In March 2014, Ray transferred to AT&T’s Maysville,
Kentucky store. At all relevant times, Defendant Amy
Waymire

was

the

Area

Sales

Manager

for

this

store

location. (Doc. 75-3, ¶¶ 2–5); (Doc. 1-2, ¶ 5). Based
upon the needs of the store, an automated scheduling
system (“People Tool”) generated employees’ schedules,
and in Ray’s case, his permanent schedule was 32 hours
each week until May 2015. (Doc. 75-2, ¶¶ 11–13; Doc. 757, Pl.’s Dep. at 83. At an end-of-the-year party in
December 2014, Ray asked Waymire about transferring again
to another part-time position at the Richmond, Kentucky
store. According to Ray, Waymire responded “that it
wasn’t a problem, as soon as [Ray] needed to make that

2

happen,

contact

her

directly

and

she

would

make

it

happen.” (Doc. 75-7 at 226).
A.

AT&T’s Policy for Requesting FLMA Leave

AT&T’s FMLA policy prescribes the steps that an
employee must take to request FMLA leave. (Doc. 75-4, ¶
8; id. Ex. A). That policy is located on AT&T’s intranet
site

and

is

available

to

all

AT&T

employees.

An

employee’s FMLA entitlement for the year is posted on the
same webpage used to access and view payroll information
and leave balances for the year. Id. at ¶ 13. If an
employee

has

difficulty

determining

their

FMLA

eligibility and entitlement, they can receive assistance
from a Human Resources (HR) representative via a “Chat
Now” icon or “Contact Us” link on the home page. Id. at
¶¶ 10–11. AT&T’s FMLA operations team has no record of
Plaintiff ever contacting the department to determine his
FMLA entitlement. Id. at ¶ 12.
To request FMLA leave or report an absence as FMLA
leave, an employee must follow three steps: (1) contact
the Mobility Centralized Payroll Change Administration

3

(“MCPCA”) and report the FMLA request; (2) verify the
details of the request in the FMLA 1 form, including the
date of the absence and the reason for taking leave; and
(3) provide a supporting certification from a health care
provider

(FMLA

4)

to

AT&T’s

FMLA

operations

by

the

designated due date. (Doc. 75-4, Ex. A). The MCPCA staff
then

submits

the

employee’s

operations

department.

operations

team

(Doc.

reviews

the

request
75-4,

to
¶

AT&T’s

16).

certification

FMLA

The

FMLA

from

the

employee’s health care provider and issues a Form FMLA
5,

notifying

request

was

the

employee

approved,

whether

pending

their
because

FMLA
a

leave
health

certification was needed, or denied and the reason for
the denial. Id. at ¶¶ 17, 22.
An employee can opt to have FMLA notifications sent
to two (2) email addresses. Id. at ¶ 23; id. Ex. C. The
employee can also monitor the status of FMLA requests
from work or home by accessing the AT&T intranet website
or contacting HR/FMLA operations at the telephone number
provided on any FMLA 1, FMLA 4, or FMLA 5 form. Id. at ¶

4

23.
B.

Ray’s FMLA Leave History at AT&T

As a part-time employee working a permanent work
schedule of 32 hours per week, AT&T calculated that Ray’s
FMLA entitlement for 12 weeks of work was 384 hours.
(Doc. 75-4, ¶ 25); (Doc. 75-9, Pl.’s Dep. at 83). On
January 20, 2015, Ray was notified on an FMLA 1 form that
he was entitled to 384 hours of FMLA leave for 2015.
(Doc. 75-4, ¶ 26; id. Ex. B).
Due to a back injury and anxiety, Ray requested
through the MCPCA and was approved for intermittent FMLA
leave on various dates from March 8, 2015 through May 23,
2015. (Doc. 75-4, ¶ 31(a)–(r); id. Ex. C). Ray used 125
hours of FMLA leave during this period. Id. at ¶ 27.
At the end of May 2015, Ray’s permanent work schedule
changed from 32 hours per week to 27.25 hours per week.
(Doc. 75-4, ¶ 29; Doc. 75-2, ¶ 17). This new schedule was
automatically generated by the People Tool scheduling
system based upon the needs of the store. (Doc. 75-2, ¶¶
12, 17). As a result, AT&T calculated that Ray’s FMLA

5

entitlement was 220.73 hours for the remainder of 2015.
(Doc. 75-4 at ¶ 29).
In a message sent on June 10, 2015, Ray followed up
with

Waymire

regarding

the

previously

discussed

possibility of transferring to the Richmond location.
(Doc. 77-14). Waymire responded the next day that “The
company changed the headcount for that store” and they
did not “not have any part time openings in Richmond.”
Id.; (Doc. 75-3, ¶ 11). The Retail Sales Manager for the
Richmond store, Jessica Webb, confirmed that there were
not “any open part time positions in June 2015 as a result
of a change in headcount.” (Doc. 75-5, ¶¶ 4–5).
Ray again was approved for and took intermittent FMLA
leave on various dates from June 6, 2015 through October
4, 2015. (Doc. 75-4, ¶ 31(r)–(zz); id. Ex. C); (see Doc.
1-2, ¶ 9). The specified reason for Ray taking FMLA leave
on these dates was either his back injury, anxiety, or
some other “unknown” reason. (Doc. 75-4, ¶ 31). During
this period Ray exhausted 237.72 hours of FMLA leave.
(see

Doc.

75-4,

¶

31(r)–(zz)).

6

Ray

was

notified

on

October 27, 2015 that his request to use FMLA leave for
hours he was absent on October 5, 2015 and October 6–9,
2015 was not approved because he had exhausted his 12week entitlement to intermittent FMLA leave. (Doc. 75-4,
¶ 32; id. Ex. D).
C.

Anticipated Disability Leave & Short-Term
Disability Benefits

Although Ray had exhausted his FMLA leave for 2015,
he was granted an anticipated disability leave (“ADL”)
for October 10, 2015 through October 26, 2015. (Doc. 752, ¶ 24). An ADL is a discretionary departmental leave
that may be granted when the employee has no other leave
available. AT&T excuses the employee’s absences so that
they can apply for short-term disability (“STD”) benefits
or seek a job accommodation. (Id. at ¶¶ 25–27). Ray,
however, did not apply for short-term disability benefits
until the “end of October,” specifically, October 27,
2015—after Ray’s ADL had ended. (Doc. 75-2, ¶ 28); (Doc.
75-9, Pl.’s Suppl. Resp. to Interrog. at 4).
On

November

19,

2015,

the

store

manager,

Fred

Hoskins, sent Ray a text message, stating “I called Short
7

term today and they said they haven’t received the proper
medical documentation. They need for you to call them.”
Ray replied, “Thanks. I’ll give them a call.” (Doc. 7724 at 2).
On November 24, 2015, Ray received a letter notifying
him

that

his

application

for

short-term

disability

benefits was denied because “[s]ubmission of medical
information was due on 11/12/2015” and “records indicate
that you have not provided medical records . . . as we
requested when you reported your STD claim.” (Doc. 75-7,
Ex. 65). Ray did not appeal this decision until April
2016, several months after his employment was terminated.
(Doc. 75-2, ¶ 60).
D.

Unemployment Benefits Claims

Before beginning his ADL on October 10, 2015, Ray
applied

for

unemployment

benefits

with

the

Kentucky

Division of Unemployment Insurance (“UI Division”). (Doc.
75-6, ¶ 9). AT&T has a contract with Equifax Workforce
Solutions

(“Equifax”),

a

third-party

vendor,

to

administer unemployment claims filed by AT&T employees

8

in the United States. (Doc. 75-6, ¶ 5). Because Ray was
still employed by AT&T, Equifax advised the UI Division
that Ray was on a leave of absence and had not yet
returned to work. Id. at ¶ 10; id. Ex. A.
On October 29, 2015, the UI Division determined that
Ray was not entitled to unemployment benefits for the
period of October 4, 2015 through October 17, 2015,
because

the

“employment

relationship

has

not

been

severed” and therefore Ray is “not unemployed.” (Doc. 756, ¶ 11; id. Ex. B).
E.

Workplace Misconduct

On June 27, 2015, an assistant manager overheard Ray
ask a co-worker to access an account without the customer
being

present.

(Doc.

75-2,

¶¶

29,

31).

The

account

belonged to either Ray’s aunt or his grandmother’s first
cousin. (Doc. 75-2, Ex. B; Doc. 81-1, Pl.’s Dep. at 95–
96). Once Ray accessed the account, he conducted a credit
check, added a password, and then added unlimited data.
(Doc. 75-2, ¶ 35). Ray also transferred the new line from
the customer’s account to his own, added unlimited data

9

to the new line activation, and classified the new line
to trigger a senior discount. Id. at ¶ 36. All of this
was done without the customer present and was captured
on video cameras in the store (including in the inventory
room) and from screen display images of the customer’s
account. Id. at ¶ 37. That same day, the assistant manager
reported to the sales manager, Fred Hoskins, that Ray was
absent from the sales floor. (Doc. 75-2, ¶ 30; id. Ex. A
at 2).
After speaking with Ray regarding the customer’s
account

he

had

accessed,

on

July

2,

2015,

Hoskins

referred the incident to the Regional Performance manager
for investigation. (Doc. 75-2, ¶ 31). The report from the
investigation

noted

that

Ray’s

conduct

constituted

misconduct. Id. Ex. A at 2). Ray’s conduct was considered
a breach of AT&T’s policies, and according to AT&T, is a
violation of federal laws governing customer proprietary
network information (“CPNI”), see, e.g., 47 U.S.C. § 222,
which could result in AT&T being fined by the Federal
Communications Commission (“FCC”). (Doc. 75-2, ¶¶ 38–40).

10

Every day the case investigation was scheduled, however,
Ray “called out” and this had occurred “several times.”
Id.; id. Ex. A at 2.
Because Ray’s conduct on June 27 involved multiple
CPNI breaches, the matter was referred to AT&T’s Asset
Protection department in September 2015. (Doc. 75-2, ¶
42; id. Ex. B). If Asset Protection had been able to
confirm that Ray accessed a customer’s account and made
changes without the customer being present, Ray would
have

been

terminated

for

violating

AT&T’s

code

of

conduct. Id. at ¶ 44. But because Ray never returned to
work in order for Asset Protection to interview him, the
case was closed subject to being reopened. (Doc. 75-2, ¶
43). Ray’s last full day at the store was August 30,
2015. Id. at ¶ 48. September 20, 2015 was Ray’s last day
at work but he was there for less than a minute. Id. at
¶ 49.
F.

Employment Termination

Having exhausted his FMLA leave and his ADL, Ray had
the option to apply for a job accommodation through the

11

Integrated Disability Service Center (“IDSC”) to cover
his absences from October 27, 2015 through the date of
his job abandonment on December 28, 2015. (Doc. 75-2, ¶
50).1 Ray knew how to make such a request because he had
done so on two previous occasions. Id. at ¶ 52. This
time, however, Ray never applied for a job accommodation.
Id. at ¶¶ 53–56.
By December 2015, Ray had long exhausted his FMLA
leave, taken an ADL, been denied short-term disability
benefits, been denied unemployment benefits, and he did
not have any application pending that would excuse his
absences from work. Nor did he have approval from Hoskins
to be absent after October 27, 2015. (Doc. 75-2, ¶¶ 56–
57).
Thus, on December 10, 2015, Hoskins (on behalf of
Waymire) sent Ray a Return to Work Letter. Id. at ¶ 57.
In the letter, Ray was advised: “You have not reported
to work . . . and have been on unexcused absence . . . .

1

The IDSC is a third-party vendor that manages the
disability benefits program and job accommodation
process for AT&T. (Doc. 75-2, ¶ 51).
12

In order to remain employed by [AT&T], you are required
to return to work on or before 12/15/2015.” Id. Ex. C.
at 1 (emphasis added). The letter instructed that if Ray
“believe[d]” that he was “unable to return to work by
12/15/2015,” he had to choose one or more of the options
listed below and “contact your supervisor before the
return date” with your decision:
• “Contact Amy Waymire . . . and discuss what, if
any, options may be available to you . . .”;
• “Contact the IDSC . . . to provide additional
documentation to support your denied [STD] claim,
to submit a formal appeal . . .” or
• “Contact the IDSC . . . regarding your request for
reasonable accommodations which will facilitate
your return to work . . .”
(Doc.

75-2,

Ex.

C

at

2)

(emphasis

in

original).

Significantly, the letter also provides that “If you
choose to try to extend your time off through a request
made to the IDSC, you must immediately contact your
supervisor and notify him/her of your selected option and
the date your claim/request was made to the IDSC.” Id.
(emphasis in original).
The record reveals that after the Return to Work
13

Letter, dated December 10, 2015, Ray did not make contact
with Hoskins. The only contact Ray had with Waymire was
two text messages, one on December 18 and the other on
December 24, (Doc. 77-24 at 1), and a phone call on
December 23, 2015. (Doc. 75-9, Pl.’s Suppl. Resp. to
Interrog. at 7).
On December 18, Ray wrote to Waymire: “[J]ust wanted
to let you know I tried returning your call regarding the
letter

I

received

from

you.

I

only

got

it

today,

12/18/2015, as UPS left it without a signature and I did
not know I had received it.” (Doc. 77-24 at 1). Then, in
the phone call on December 23, Waymire informed Ray that
he would need to have a short-term disability claim
“showing as approved instead of as denied by December 26,
2015,” or Ray would be terminated from his position.
(Doc. 75-9, Pl.’s Suppl. Resp. to Interrog. at 7). The
next day, December 24, Ray sent a long message to Waymire,
explaining that he had not received the letter denying
his STD benefits and that he was still trying to obtain
the information from his doctor but was having difficulty

14

due to the holidays. (Doc. 77-24 at 1). Ray then asked,
“Is there someone I can reach out to to [sic] explain the
situation just because they’re going to need more time
on their end and I’ve done everything possible on my end
already?” Id.
Ray knew the medical information was over a month
past due when he was notified on November 24, 2015 in a
letter that his STD benefits claim was denied for that
reason. (Doc. 75-7, Ex. 65). That letter was sent via
“UPS Next Day Air . . . and Regular U.S. Mail,” so a
signature was not required. (Doc. 75-7, Ex. 65). Thus,
there was no longer a pending STD benefits claim. When
Waymire responded on December 30, 2015 to Ray’s text
message,

her

answer

was

effectively

just

that.

She

stated, “No. At this point it would have been your
responsibility to continue to follow up with them to
ensure everything was handled on [sic] timely manner.”
Id.
On December 22, 2015, Ray was issued a Final Written
Warning for an “unsatisfactory” attendance record because

15

he had incurred seven (7) or more unexcused “absence
points.” (Doc. 77-43). In fact, Ray had incurred a total
of sixteen (16) absence points. Id. It is undisputed that
Ray was absent in 2015 on July 12, July 13, July 15, July
18, and he received one point for each of these absences,
even though Ray was approved for FMLA leave on each of
these dates. Compare (Doc. 77-43), with, (Doc. 75-4, ¶
31). Nonetheless, even without these additional points,
Ray had still accumulated twelve unprotected “absence
points.”
Shortly thereafter, on December 30, 2015, Hoskins
sent Ray another letter that referenced the Return to
Work letter and notified him that “AT&T considers you to
have voluntarily resigned your job,” effective December
28, 2015. (Doc. 75-2, Ex. D). The letter stated: “You
have not reported to work, have not contacted the Company
regarding your absence and have been on unexcused absence
since 10/28/2015.” Id.; (Doc. 75-2, ¶ 59). That reasoning
coincides with AT&T’s Attendance Policy, which Ray was
made aware of during his initial training. (Doc. 75-7,

16

Pl.’s Dep. at 217). Pursuant to that policy “[i]f an
employee is absent from work for three (3) or more
consecutive

workdays

without

proper

notification

or

without Company approval, the employee will be considered
to

have

abandoned

his/her

job

and

voluntarily

quit

without notice.” (Doc. 77-40) (emphasis added).
Ray was then issued a Termination Document, which
stated, in part:
According to our records, you have not reported
to work and are no longer approved for disability
benefits or a company approved leave of absence
as of 10/28/2015. We also have no record of you
taking the appropriate measures to apply for a
possible accommodation under the Americans with
Disabilities Act. Your time away from work has
been unexcused since 10/28/2015 and we sent a
letter to your [sic] requiring you to return to
work on 12/10/2015.
(Doc. 77-42) (emphasis added).
G.

Second Application for Unemployment Benefits

After

being

terminated,

Ray

again

applied

for

unemployment benefits with an effective date of February
4, 2016. (Doc. 75-6, ¶ 12). On February 19, 2016, Equifax
sent a letter to Kentucky’s UI Division, in response to
a questionnaire and “Notice to Employer of Claim for
17

Unemployment Insurance Benefits” Equifax had received
from the UI Division. (Doc. 75-6, ¶ 13; Doc. 77-4). In
the

letter,

Equifax

opposed

Ray’s

eligibility

and

erroneously stated that “[t]he claimant is currently on
an

approved

liaison

to

leave

of

Equifax

absence.”
stated

(Doc.

that

the

77-4).

AT&T’s

response

was

“inadvertently submitted.” (Doc. 75-6, ¶ 14).2 Indeed,
the

February

19

statement

matches

word-for-word

the

statement Equifax previously provided on November 18,
2015, regarding Ray’s first application for unemployment
benefits. (Doc. 75-6, Ex. A).
That same day, Equifax immediately sent a corrected
response. (Doc. 75-6, ¶ 15; id. Ex. D). Equifax advised
the UI Division that Ray “was discharged due to excessive
absenteeism and tardiness” in violation of the “company
policy,” and mentioned that Ray had failed to “show up
for work” after a letter was sent ordering him to do so.

2

Equifax evidently was under the impression that this
was the same claim, stating “Our records indicate this
was previously adjudicated in the employer’s favor.”
(Doc. 77-4).
18

Id. Ex. D. Neither Equifax nor Waymire provided any
testimony or additional evidence to the UI Division after
the February 19 corrected response to the questionnaire.
(Doc. 75-6, ¶ 19).
On

February

26,

2016,

Ray’s

application

for

unemployment benefits was denied because the UI Division
“found the discharge was for misconduct.” Id. Ex. E. Ray
appealed on March 11, and a hearing was held before a
Referee on March 28, 2016. Id. Neither AT&T nor anyone
on its behalf appeared at the hearing. Id. The Referee
ultimately reversed the UI Division’s decision. Id.
H.

Short-Term Disability Appeal

On

April

6,

2016,

over

four

months

after

his

employment was terminated, Ray appealed the denial of his
short-term

disability

benefits

that

was

issued

on

November 24, 2015. (Doc. 75-2, ¶ 60; Doc. 75-7, Ex. 65).
On August 16, 2016, Ray was approved for short-term
disability

benefits

from

November

4,

2015

through

December 28, 2015. (Doc. 75-2, ¶ 61); (Doc. 77-48).
On March 23, 2017, Ray filed this lawsuit in state

19

court against AT&T and Waymire. (Doc. 1-2). Defendants
then removed the action to this Court pursuant to 28
U.S.C. §§ 1441 and 1446. (Doc. 1).
Ray asserts the following eight counts: (1) FMLA
interference under 29 U.S.C. § 2615(a)(1);

(2) FMLA

retaliation pursuant to 29 U.S.C. § 2615(a)(2);

(3)

Wrongful

(4)

use

Intentional
Negligent

of

administrative

infliction
infliction

of
of

proceedings;

emotional
emotional

distress;

(5)

distress;

(6)

Negligence or vicarious liability; (7) Punitive damages;
and (8) Causation and damages.
Analysis
I.

Defendants’ Motion in Limine to Exclude Plaintiff’s
Expert, Scott R. Bauries
Before turning to the merits of Ray’s claims, the

Court must first determine whether Dr. Bauries’ testimony
would

be

admissible

in

evidence

and

thus

may

be

considered on summary judgment. Federal Rule of Evidence
702 instructs that an expert “qualified” as possessing
the requisite “knowledge, skill, experience, training,
or education” may testify in the form of an opinion if
20

the proponent establishes that:
(a) the expert’s . . . specialized knowledge
will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts
or data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the
case.
Fed. R. Evid. 702. Expert testimony may “embrace[] an
ultimate issue.” Fed R. Evid. 704(a).

But an expert “may

not testify to a legal conclusion” or “define legal
terms.”

Hyland v. HomeServices of Am., Inc., 771 F.3d

310, 322 (6th Cir. 2014).
The Court concludes that Dr. Bauries’ testimony must
be excluded for two reasons: (a) it would not be helpful
to

the

jury;

and

(b)

it

impermissibly

offers

legal

conclusions.
First, Dr. Bauries begins by offering an analysis of
how Ray’s FMLA leave time should be calculated and what
the employer notice requirements are. (Doc. 63-2 at 2–3,
4–6). This is inappropriate because FMLA regulations
21

explicitly establish “employer notice requirements,” 29
C.F.R. § 825.300, and the rules and processes for the
“calculation of leave.” 29 C.F.R. § 825.205(b).
“A

matter

requiring

statutory

[or

regulatory]

interpretation is a question of law” for the Court to
decide and then instruct the jury accordingly. See, e.g.,
Roberts v. Hamer, 655 F.3d 578, 582 (6th Cir. 2011);
Gibson v. City of Louisville, 336 F.3d 511, 512–13 (6th
Cir. 2003) (FMLA claim). As such, “[e]xpert testimony is
not admissible to inform the trier of fact as to the law
that it will be instructed to apply to the facts in
deciding the case.” 4 JACK B. WEINSTEIN & MARGARET A. BERGER,
WEINSTEIN’S FEDERAL EVIDENCE, § 702.03(3) (Mark S. Brodin &
Matthew Bender eds., 2d ed. 2019) [hereinafter “WEINSTEIN’S
EVIDENCE”]. Therefore, Dr. Bauries’ interpretation of the
FMLA and its implementing regulations is not admissible.
Killion v. KeHE Distribs., LLC, 761 F.3d 574, 592–93 (6th
Cir. 2014) This is especially true where, as explained
below, Dr. Bauries interpretation of FMLA statutes and
regulations is flawed.

22

Next, Dr. Bauries states in his report

that he

reviewed each of Ray’s pay stubs over the 12 months prior
to

his

initial

“calculated

the

FMLA

leave

average

on

weekly

March

8,

work/leave

2015,
hours”

and
by

adding together the hours Ray worked (including any hours
for which Ray took leave of any type), dividing that
total by 52 weeks find the average hours worked each
week, and then multiplying that average work week by 12
to arrive at the opinion that Ray was entitled to 389.64
hours of FMLA leave. (Doc. 63-2 at 2–3).
Dr. Bauries’ computation involves basic math and thus
violates the principle that an expert’s testimony must
involve “specialized knowledge” that “will help the trier
of fact to understand the evidence or to determine a fact
in issue.” Fed. R. Evid. 702(a). It is well established
that “expert testimony does not help where the jury has
no need for an opinion because the jury can easily reach
reliable

conclusions

based

on

common

sense,

common

experience, the jury’s own perceptions, or simple logic.”
29 CHARLES ALLAN WRIGHT

ET AL.,

23

FEDERAL PRACTICE & PROCEDURE §

6265.2

(2d

ed.,

[hereinafter
§ 702.03(2)(a)

West

“WRIGHT”];

2018
see

(“Expert

update)
also

4

testimony

(emphasis

added)

WEINSTEIN’S EVIDENCE,
is

generally

not

permitted concerning factual issues that are within the
knowledge and experience of ordinary lay people”). In
other words, if “the subject matter is not complex or
technical” expert testimony is not necessary. Stromback
v. New Line Cinema, 384 F.3d 283, 295 (6th Cir. 2004).
See also Churchwell v. Bluegrass Marine, Inc., 444 F.3d
898, 905 (6th Cir. 2006).
The lay jury is endowed with the common knowledge
necessary

to

add,

divide,

and

multiply

the

figures

presented by the parties without “expert” testimony. Any
perceived difficulty in submitting the relevant documents
can easily be handled by stipulation of the parties, or
alternatively, Rule 1006 expressly permits a party to
“use

a

summary,

chart,

or

calculation

to

prove

the

content of voluminous writings.” Fed. R. Evid. 1006.
Even if Dr. Bauries’ calculation was helpful, his
testimony cannot be considered because his formula is

24

contrary to FMLA statutes and regulations. See infra Part
II.A(1).3
Finally, Dr. Bauries’ report is filled with a litany
of legal conclusions that violate Rule 704. (Doc. 63-2
at 3–7). Dr. Bauries opines: (1) “That would constitute

3

Ray’s reliance on Banks v. Bosch Rexroth Corp., No. 5:
12–345–DCR, 2014 WL 1364763, at *7 (E.D. Ky. Apr. 7,
2014) does not change the impropriety of Dr. Bauries’
report. In Banks, Dr. Bauries offered legal analysis of
the FMLA, a calculation of plaintiff’s FMLA leave time,
and legal conclusions that defendant violated the FMLA.
Id. at *1, *5–7. The court concluded that “[w]hile the
calculation of leave time will be allowed, Bauries’
opinions regarding failure of notice and violations of
the FMLA will be excluded” because “those matters
speak[] to liability in this matter by stating that
[defendant] breached the FMLA” which goes “to the
ultimate question of liability” and is “not admissible
under Rule 704.” Id. at *7. The mathematical calculation
was admitted only because defendants admitted they had
poor record keeping practices and “difficulty in
calculating [plaintiff’s] leave time.” Id. at *5–6. That
is not the case here. AT&T’s Director over FMLA
operations has provided concise and organized records
of Ray’s FMLA leave and reported in summary fashion in
her sworn affidavit the leave taken on each day. (Doc.
75-4, ¶¶ 25–31). But it bears emphasis that the Banks
court nevertheless granted summary judgment in favor of
defendant because “regardless of how the calculations
are made, there was no violation of the FMLA.” Banks,
15 F. Supp. 3d 681, 697–98 (E.D. Ky. 2014). The Sixth
Circuit affirmed. 610 F. App’x 519, 525–26 (6th Cir.
2015).
25

a violation of the FMLA for failure to grant [Ray] the
total leave requirement,” id. at 3; (2) “the [alleged]
reduction [in FMLA leave time] was in retaliation for
[Ray]’s exercise of his FMLA rights,” id. at 4; (3) “This
constitutes a violation of the FMLA notice provisions,
and therefore an interference with FMLA rights,” id. at
5; (4) “the failure to timely notify itself constitutes
interference with FMLA rights,” id. at 5; (5) “Providing
employees misleading information about their entitlement
to

leave

.

.

.

certainly

fits

with

this

[FMLA

interference] definition,” id. at 6; (6) AT&T’s “failure
to

inform

[Ray]”

of

certain

information

“was

an

interference with [Ray]’s FMLA rights.” Id. at 6–7.
These

are

textbook

attempts

to

offer

legal

conclusions. When Rule 704 “speak[s] of an expert’s
testimony embracing the ultimate issue, the reference
must be to stating opinions that suggest the answer to
the

ultimate

issue

or

that

give

the

jury

all

the

information from which it can draw inferences as to the
ultimate issue.” DeMerrell v. City of Cheboygan, 206 F.

26

App’x 418, 426 (6th Cir. 2006) (quoting Berry, 25 F.3d
at 1353). Dr. Bauries’ “report goes beyond this point
(many

times

“strike

his

over),”
entire

and

therefore

report.”

the

Court

Summerland

v.

should

Cty.

of

Livingston, 240 F. App’x 70, 81 (6th Cir. 2007); Killion,
761 F.3d at 593; see also Greene v. Drobocky, No. 1:12–
CV–00078–TBR, 2014 WL 3955288, at *3 (W.D. Ky. Aug. 13,
2014)

(excluding

opinions

were

Dr.

legal

Bauries’

opinion

conclusions

because

regarding

the

whether

Defendants actions violated ERISA).
Accordingly, the Court will exclude Dr. Bauries’
report and testimony.
II. Motion for Summary Judgment
A.

FMLA Claims (Counts I & II)

The Sixth Circuit “recognizes two distinct theories
for recovery under the FMLA: (1) the ‘entitlement’ or
‘interference’

theory

arising

from

29

U.S.C.

§

2615(a)(1); and (2) the ‘retaliation’ or ‘discrimination’
theory arising from 29 U.S.C. § 2615(a)(2).” Killian v.
Yorozu Auto. Tenn., Inc., 454 F.3d 549, 555–56 (6th Cir.

27

2006) (quoting Hoge v. Honda of America Mfg., Inc., 384
F.3d 238, 244 (6th Cir.2004)). Ray alleges a claim under
both theories. For the reasons that follow, summary
judgment is appropriate on each of Ray’s FMLA claims.
1.

(Count I) – FMLA Interference Claim Under §
2615(a)(1)

To prevail on an interference claim or “entitlement”
claim, Ray must prove that:
(1) he was an eligible employee; (2) Defendant
was an employer subject to the FMLA; (3) he was
entitled to leave under the FMLA; (4) he gave
his employer notice of his intention to take
FMLA leave; and (5) Defendant denied him FMLA
benefits to which he was entitled.
Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 840
(6th Cir. 2012).

See also Vonderhaar v. Waymire, No. 19-

5332, 2020 WL 238280, at *7 (6th Cir. Jan. 15, 2020).
Here, because AT&T only challenges the last element, the
question is whether Ray was denied FMLA benefits to which
he was entitled. (Doc. 75-1 at 17). “This inquiry is an
objective one divorced from the employer’s motives, with
the central question being simply whether the employee
was entitled to the FMLA benefits at issue.” Coker v.

28

McFaul, 247 F. App’x 609, 617 (6th Cir. 2007) (quoting
Edgar v. JAC Products, Inc., 443 F.3d 501, 511 (6th Cir.
2006)).
a. Ray was not Denied FMLA Benefits
As relevant here, an “eligible employee” is “entitled
to a total of 12 workweeks of leave during any 12-month
period” for “a serious health condition” that renders the
employee unable to perform an essential function of their
job. 29 U.S.C. § 2612(a)(1)(D); 29 C.F.R. § 200(a)(3).4
Pursuant to 29 C.F.R. § 825.200(b), an employer may
choose one of four methods for determining the “12-month
period” in which an employee’s 12 weeks of FMLA leave

4

There is an additional benefit under the FMLA:
“Qualifying employees who return to work within that 12week period are entitled to be reinstated to their
previous position.” Edgar v. JAC Prods., 443 F.3d 501,
506 (6th Cir. 2006) (citing 29 U.S.C. § 2614(a)(1)).
Although Ray claims he was denied reinstatement, (Doc.
1-2, ¶¶ 20, 29), it is undisputed that Ray never returned
to work after exhausting his FMLA leave on October 4,
2015, and AT&T waited until December 28, 2015 before
terminating Ray’s employment. (Doc. 75-4, ¶ 32; Doc. 752, ¶¶ 49, 59). “[T]he FMLA does not provide leave for
leave’s sake, but instead provides leave with an
expectation [that] an employee will return to work after
the leave ends.” Edgar, 443 F.3d at 506 (citation
omitted). Ray therefore had no right to reinstatement.
29

entitlement occurs.5 The method chosen must be applied to
all employees. 29 C.F.R. § 825.200(d)(1). “If an employer
fails to select one of the options . . . for measuring
the 12-month period, the option that provides the most
beneficial outcome for the employee will be used.” 29
C.F.R. § 825.200(e). Here, AT&T measures the 12-month
period based on the calendar year. (Doc. 77-5 at 1).
An employee’s “12 workweeks of leave” entitlement is
then calculated according to the standards prescribed in
29 C.F.R. § 825.205(b). See Mendel v. City of Gibraltar,

5

29 C.F.R. § 825.200(b) provides that an employer may
choose any one of the following four methods for
determining the “12-month period”:
(1) The calendar year;
(2) Any fixed 12-month leave year, such as a
fiscal year, a year required by State law, or a
year starting on an employee's anniversary
date;
(3) The 12-month period measured forward from
the date any employee's first FMLA leave under
paragraph (a) begins; or,
(4) A “rolling” 12-month period measured
backward from the date an employee uses any
FMLA leave as described in paragraph (a).

30

607 F. App’x. 461, 464–66 (6th Cir. 2015). The parties
dispute whether subsection (b)(2) or (b)(3) provides the
applicable formula. (Doc. 77 at 25; Doc. 81 at 8).
Subsection (b)(2) provides that “[i]f an employer
has

made

a

permanent

or

long-term

change

in

the

employee’s schedule (for reasons other than FMLA, and
prior to the notice of need for FMLA leave), the hours
worked under the new schedule are to be used for making
this calculation.” 29 C.F.R. § 825.205(b)(2) (emphasis
added). In contrast, under subsection (b)(3), “[i]f an
employee’s schedule varies from week to week to such an
extent that an employer is unable to determine with any
certainty how many hours the employee would otherwise
have worked (but for the taking of FMLA leave), a weekly
average of the hours scheduled over the 12 months prior
to the beginning of the leave period (including any hours
for which the employee took leave of any type) would be
used for calculating the employee's leave entitlement.”
Id. § 825.205(b)(3).
Subsection

(b)(3)

does

31

not

apply

here.

It

is

undisputed that Ray was a part-time employee working a
“permanent” number of hours each week. (Doc. 75-4, ¶¶ 29;
Doc. 75-2, ¶ 17); (Doc. 75-9 at 4; Doc. 75-7 at 83).
There is no evidence that AT&T was “unable to determine
with any certainty” how many hours Ray worked.
On the other hand, subsection (b)(2) does apply. The
record establishes that Ray worked a “permanent” schedule
of 32 hours per week through May 2015, at which time AT&T
“made a permanent . . . change in [Ray]’s schedule,”
setting Ray’s permanent schedule at 27.25 hours per week.
(Doc. 75-4, ¶ 29). Therefore, “the hours worked under the
new schedule are to be used” for purposes of calculating
an

employee’s

FMLA

entitlement.

29

C.F.R.

§

825.205(b)(2).
As such, the undisputed facts establish that Ray was
not denied FMLA benefits to which he was entitled. The
record shows that Ray’s initial permanent work schedule
was 32 hours per week, thereby entitling Ray to 384 hours
of FMLA leave. (Villarreal Decl. ¶ 25) (Doc. 75-4). Ray
exhausted

125

hours

of

intermittent

32

FMLA

leave,

or

3.90625 weeks of his 12-workweek entitlement, between
March 8 and May 23, 2015. Ray was left with 8.0937 weeks
of leave at the end of May 2015.6 At that time, Ray’s
permanent schedule changed to 27.25 hours per week. (Doc.
75-4, ¶¶ 25–29). That was done automatically by AT&T’s
People Tool based on the needs of the store and did not
result in a pending request for FLMA leave being denied.
(Doc. 75-2, ¶¶ 12, 17). This is permissible because it
was “for reasons other than FMLA, and prior to the notice
of need for FMLA leave.” 29 C.F.R. § 825.205(b)(2).
Moreover, Ray has produced no evidence to show that he
was not in fact scheduled for 27.25 hours per week after
May 2015.
Villarreal’s subsequent calculations are slightly
off,

but

the

difference

has

no

impact

on

Ray’s

interference claim. The weekly number of hours Ray was
scheduled (27.25) multiplied by the number of weeks of
FMLA leave Ray had remaining (8.0937) yields exactly
220.554688 hours of FMLA leave that Ray had remaining for

6

AT&T rounded this number to 8.09. (Doc. 75-4, ¶ 28).
33

the calendar year at the end of May 2015. Ray then was
approved for and took intermittent FMLA leave on various
dates from June 6, 2015 through October 4, 2015. (Doc.
75-4, ¶ 31(r)–(zz)). During this period, Ray used a total
of 237.72 hours of FMLA, all of which AT&T approved.7
Contrary to AT&T’s argument, however, the 16-day ADL Ray
was granted is not FMLA leave and thus cannot be counted
as such. (Doc. 75-1 at 17, 19; Doc. 81 at 8). Nonetheless,
Ray was approved for precisely 17.1653125 hours above and
beyond that to which he was entitled to under the FMLA.
The same result obtains even if the Court accepts
Dr. Bauries’ opinion that AT&T could not reduce Ray’s
workweek schedule and that Ray was entitled to 389.64
hours of leave. (Doc. 63-2 at 3).

It is undisputed that

Ray had a total of 367.72 hours coded as FMLA leave.
(Doc.

7

75-4,

¶

31).

Notably,

Ray

never

requested

With respect to Ray’s request for 1.78 hours of FMLA
leave on October 5, 2015, this was not approved as
FMLA time and therefore did not count against his
entitlement. (Doc. 75-4, ¶ 32; id. Ex. D at 2). Thus,
the total FMLA leave time applied toward Ray’s
entitlement is 237.72, not 239.5 as Villareal
calculated. (Doc. 75-4, ¶ 30).
34

additional FMLA hours after being informed that he had
exhausted

his

entitlement.

Levaine

v.

Tower

Auto.

Operations USA I, LLC, 680 F. App’x 390, 393 (6th Cir.
2017) (“To be entitled to FMLA leave, an employee must
both notify his employer of his need to take leave and
state a qualifying reason for leave.”).
Nevertheless, after the ADL that AT&T granted Ray
had expired on October 26, 205 (Doc. 75-2, ¶ 24), Ray was
effectively terminated on December 28, 2015 and his “time
away from work ha[d] been unexcused since 10/28/2015”—a
total

of

eight

(8)

weeks.

(Doc.

77-4).

Using

Ray’s

initial permanent work schedule, Ray would have taken an
additional 256 hours (32 hours x 8 weeks) during this
period. “Acceptance of [Ray]’s argument that [21.92]
hours of [his] leave were not properly coded as FMLA
leave results in two possible scenarios: either the leave
was

FMLA

leave

and

[Ray]

exhausted

[his]

allotment

[albeit a few days later], or the leave was unexcused,
and [AT&T] was entitled to terminate [Ray] for taking it”
as AT&T did. Banks v. Bosch Rexroth Corp., 610 F. App’x

35

519, 526 (6th Cir. 2015). In either case, as in Banks,
Ray exhausted his FMLA leave.
“Once an employee exceeds his twelve work weeks (or
sixty workdays) of FMLA leave, additional leave in the
twelve month period is not protected by the FMLA, and
termination of the employee will not violate the FMLA.”
Coker v. McFaul, 247 F. App’x 609, 620 (6th Cir. 2007)
(citation

omitted).

Summary

judgment

is

therefore

appropriate on Ray’s FMLA interference claim because AT&T
granted all the FMLA leave to which he was entitled.
Travers v. Cellco P’ship, 579 F. App’x 409, 414 (6th Cir.
2014); Banks, 610 F. App’x at 526.
b. Ray Has not Shown “Prejudice”
Despite receiving all the FMLA leave to which he is
entitled, Ray maintains that FMLA interference occurred
in several other ways.
First,
discouraged

Ray
him

argues
from

that

AT&T

exercising

interfered
his

FMLA

with

or

rights

by

maintaining “confusing” and “conflicting policies and
procedures in order to obtain FMLA leave.” Ray cites to

36

Harcourt v. Cincinnati Bell Tel. Co., 383 F. Supp. 2d 944
(S.D.

Ohio

however,

2005).

the

(Doc.

77

defendant’s

at

FMLA

24–25).

In

policies

Harcourt,

for

medical

certification contravened federal regulations. 383 F.
Supp.

2d

at

953–61.

Harcourt

says

nothing

about

“confusing and frustrating” policies being actionable
under the FMLA. (Doc. 77 at 24–25).
Moreover, Ray’s argument is belied by the record.
The three-step process for obtaining FMLA leave at AT&T
was

rather

simple

and

was

posted

on

the

company’s

employee intranet site. Ray clearly knew how to use the
site because he requested and was approved for a total
of 367.72 hours of FMLA leave over an intermittent span
of 52 days. (Doc. 75-4, ¶ 31). Each time Ray was approved
for leave, a notice informed Ray that he could “monitor
[his] FMLA requests on the FMLA Status Site from work .
. . or from home” at one of the two website addresses
provided. (Doc. 75-4, Ex. C). And Ray admits that he
could go online and view his FMLA usage. (Doc. 801-1 at
278). It is disingenuous for Ray to now argue that he

37

could not understand AT&T’s policies.
Next, Ray contends that AT&T failed to notify him of
his leave entitlement, in violation of the requirements
governing the notices an employer must provide under 29
C.F.R. § 300(b)(3), (c), and (d)(1) & (4). (Doc. 77 at
25). The plain language of these regulations and the
record evidence, however, refute Ray’s position.8 Nothing
requires an employer to provide a notice with a running
total of the FMLA leave an employee has remaining each
time a qualifying leave of absence is taken. But even if
AT&T did fail to provide a required notice (and nothing
suggests that is the case) Ray’s claim still must fail

8

For example, AT&T provided Ray with notice when he was
eligible for FMLA and when he exhausted his FMLA leave,
(Doc. 75-4, ¶¶ 26, 32; id. Ex. B, D), thereby satisfying
the mandate in 29 C.F.R. § 300(b)(3) to notify Ray of a
change in his eligibility status if “[Ray]’s eligibility
status has changed.” So long as Ray’s eligibility status
remained the same, “no additional eligibility notice
[was] required.” 29 C.F.R. § 300(b)(3). And “[o]nly one
notice of designation is required for each FMLAqualifying reason per applicable 12-month period,
regardless of whether the leave taken due to the
qualifying reason will be a continuous block of leave
or intermittent or reduced schedule leave.” 29 C.F.R. §
825.300(d)(1). At any rate, it is unclear what
particular notice Ray claims he did not receive.
38

because he has not shown that he was prejudiced as a
result.
Even where an employee proves that his employer
violated 29 U.S.C. § 2615, the cause of action set out
in Ҥ 2617 provides no relief unless the employee has
been prejudiced by the violation.” Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 89 (2002); Cavin v. Honda
of Am. Mfg., 346 F.3d 713, 726 (6th Cir. 2003). This is
because an “employer is liable only for compensation and
benefits lost ‘by reason of the violation,’ [29 U.S.C.]
§

2617(a)(1)(A)(i)(I),

for

other

monetary

losses

sustained ‘as a direct result of the violation,’ [id.] §
2617(a)(1)(A)(i)(II), and for ‘appropriate’ equitable
relief,

including

employment,

reinstatement,

and

promotion, [id.] § 2617(a)(1)(B).” Ragsdale, 535 U.S. at
89–91; see also Wilkerson v. AutoZone, Inc., 152 F. App’x
444, 449 (6th Cir. 2005); Coker v. McFaul, 247 F. App’x
609, 619 (6th Cir. 2007).
In other words, “the FMLA is not a strict-liability
statute.” Edgar v. JAC Prods., Inc., 443 F.3d 501, 507

39

(6th Cir. 2006). “A plaintiff seeking relief under the
interference or entitlement theory must show that the
violation caused him harm.” Harris v. Metro. Gov’t of
Nashville and Davidson Cty., 594 F.3d 476, 484 (6th Cir.
2010). It is not enough that a defendant “technically
violated [an] FMLA regulation,” Verkade v. United States
Postal Serv., 378 Fed. Appx. 567, 575 (6th Cir. 2010),
where it has been shown that the employee has received
all of the “substantive benefits” to which they are
entitled under the FMLA. See, e.g., Banks, 610 F. App’x
at 524–26.
Here, Ray received all 12 weeks of FMLA leave. Ray
has not suffered any harm from AT&T’s alleged failure to
provide him with a particular notice. Coker, 247 F. App’x
at 617–20; Verkade, 378 F. App’x at 575.
Moreover, the four “absence points” Ray received in
2015 for the FMLA-approved dates of July 12, July 13,
July 15, July 18 did not result in Ray being prejudiced
or otherwise demoted, terminated, or discouraged from
taking leave. Compare (Doc. 77-43), with, (Doc. 75-4, ¶

40

31).9 Indeed, after these dates Ray continued to request
and was approved for all of the leave to which he was
entitled.
The case Ray relies upon, Sabbrese v. Lowe’s Home
Ctrs., Inc., 320 F. Supp. 2d 311 (W.D. Pa. 2004), is
inapposite. There, the plaintiff was a diabetic and
unexpectedly left his department unattended because he
needed to eat. Id. at 314–15. Plaintiff received a verbal
warning and was terminated less than two weeks later. Id.
315–17, 326. In contrast to Sabbresse, Ray received all
of the FMLA leave to which he was entitled. That is all
that is needed to dispose of Ray’s interference claim.
Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283
(6th Cir. 2012).
Notwithstanding,

9

any

argument

that

the

four

Contrary to Ray’s statement of the dates he was
disciplined, (Doc. 77 at 23), the Final Written Warning
does not indicate that Ray was assessed absence points
for March 8–9, and Ray’s FMLA request for leave on
October 5 was not approved because the last of his leave
had been exhausted by virtue of his request that his
absence on October 4 be covered as FMLA leave. (Doc. 7743); (Doc. 75-4, ¶ 32).
41

disciplinary points he received formed part of the basis
for his termination, or any other reason Ray advances,
is more appropriately addressed under the retaliation
theory. Indeed, where the plaintiff purports to advance
both interference and retaliation claims but “received
all of the FMLA leave to which he was entitled,” as in
this case, a court may analyze the assertions under the
retaliation theory. See, e.g., Seeger, 681 F.3d at 283;
Wallner v. J.J.B. Hilliard, W.L. Lyons LLC, 590 Fed.
Appx. 546, 551–52 (6th Cir. 2014).
Accordingly,

Count

I

must

be

dismissed

with

prejudice.
2.

(Count II) – FMLA Retaliation Claim Under §
2615(a)(2)

Where, as here, “a plaintiff attempts to establish
an

FMLA

evidence,

retaliation
the

claim

McDonnell

based

Douglas

on

circumstantial

framework

governs.”

Cooley v. E. Tenn. Human Res. Agency, Inc., 720 F. App’x
734, 742 (6th Cir. 2017). Under that framework, Ray has
the burden first to establish a prima facie case of
discrimination by showing that:
42

(1) he was engaged in a statutorily protected
activity; (2) [AT&T] knew that he was exercising
his FMLA rights; (3) he suffered an adverse
employment action; and (4) a causal connection
existed between the protected FMLA activity and
the adverse employment action.
Seeger, 681 F.3d at 283.
The

first

two

elements

are

uncontested.

If

Ray

establishes the last two elements, “the burden shifts to
the employer to offer a legitimate, non-discriminatory
reason for the adverse action.” Cooley, 720 F. App’x at
742. “If the employer offers such a reason, the burden
shifts back to the employee to show that the articulated
reason is a pretext to mask discrimination.” Id. “In
contrast to the interference theory, ‘[t]he employer’s
motive is relevant because [FMLA] retaliation claims
impose liability on employers that act against employees
specifically because those employees invoked their FMLA
rights.’” Seeger, 681 F.3d at 282 (quoting Edgar v. JAC
Prods., 443 F.3d 501, 508 (6th Cir. 2006)).
Ray

argues

the

following

actions

by

AT&T

are

cognizable as retaliation under the FMLA: (1) denying him
a

transfer

to

another

store;
43

(2)

denying

him

reinstatement once his short-term disability leave was
approved

(Doc.

77

at

28–29);

and

(3)

assessing

him

“absence points” for the FMLA dates he was absent in July
and then terminating him in December 2015. See id. at 19,
24, 27; (Doc. 1-2, ¶ 29).10
Ray’s first basis fails because “a purely lateral
transfer or denial of the same, which by definition
results in no decrease in title, pay or benefits, is not
an

adverse

employment

action

for

discrimination

purposes.” Momah v. Dominguez, 239 F. App’x 114, 123 (6th
Cir. 2007).11

To the extent it can gleaned from the Complaint that
AT&T reduced Ray’s scheduled hours because he had
previously taken such leave, thereby reducing his FMLA
leave, Ray has not developed this argument at summary
judgment. At any rate, the schedule change was done
automatically by AT&T’s People Tool based on the needs
of the store. (Doc. 75-2, ¶¶ 12, 17). This is permissible
so long as it was “for reasons other than FMLA, and
prior to the notice of need for FMLA leave.” 29 C.F.R.
§ 825.205(b)(2). When a company has an automatic system
to reduce the number of hours of labor according to
customer traffic that is undoubtedly a legitimate reason
unrelated to an employee’s exercise of their FMLA
rights.

10

The standard for determining an “adverse employment
action” is the same “under Title VII retaliation and
FMLA retaliation claims.” Crawford v. JP Morgan Chase &

11

44

The second basis is also unavailing. Ray offers no
authority to support the theory that he had a right to
reinstatement

after

obtaining

short-term

disability

benefits.12 Moreover, Ray has no right to reinstatement
under the FMLA because, as noted above, he never returned
to work after exhausting his FMLA leave. Edgar, 443 F.3d
at 506–07 (“[A]n employer does not violate the FMLA when
it fires an employee who is indisputably unable to return
to work at the conclusion of the 12-week period of
statutory leave.”); 29 C.F.R. § 825.216(a).
Here, Ray’s health care provider, Dr. Michael Pugh,
wrote to AT&T’s IDSC on October 28, 2015 that Ray was
“unable to work” through January 15, 2016 (Doc. 75-8, Ex.
3 at 12), and again on February 23, 2016 that “Ray was
off work and under my care on Temporary Total Disability
from October 28, 2015 through January 15, 2016 . . . and

Co., 531 F. App’x 622, 627 (6th Cir. 2013).
It bears emphasis that Ray was not approved for shortterm disability benefits until August 16, 2016. (Doc.
75-2, ¶ 61; Doc. 77-48). By that time over seven months
had passed since Ray was terminated. (Doc. 75-2, Ex. D).

12

45

suffering from acute pain which severely limited his
ability to perform activities of daily living.” Id. at
30; (Doc. 75-8, Pugh Dep. at 69–70). “[E]mployees who
remain ‘unable to perform an essential function of the
position because of a physical or mental condition . . .
[have] no right to restoration to another position under
the

FMLA.’”

Edgar,

443

F.3d

at

506

(alteration

in

original) (quoting 29 C.F.R. § 825.216(c)).
That leaves the final aspect of AT&T’s conduct. Ray
alleges he was terminated “because he exercised his
rights under the FMLA” or, in part, due to the four
“absence points” he received in 2015 for FMLA-approved
dates

(July

12,

July

13,

July

15,

July

18).

The

termination letter, dated December 30, 2015, states: “You
have not reported to work, have not contacted the Company
regarding your absence and have been on unexcused absence
since 10/28/2015.” (Doc. 75-2, Ex. D). The letter says
nothing about discipline for excessive accumulation of
absence points. As such, by itself, “discipline, whether
warranted

or

not,

do[es]

not

46

constitute

a

material

adverse change in the terms of employment . . .” Lee v.
Cleveland Clinic Found., 676 F. App’x 488, 494 (6th Cir.
2017).
Ray

nevertheless

maintains

that

the

temporal

proximity of his FMLA leave and his termination establish
causation. (Doc. 77 at 28). Temporal proximity “between
the protected activity and the adverse employment action”
can suffice to establish causation for purposes of making
out a prima facie case. Seeger, 681 F.3d at 283–84 (noting
that a time period of two to three months is sufficient).
But Sixth Circuit case law is inconsistent as to the
relevant time frame. Compare Judge v. Landscape Forms,
Inc., 592 F. App’x 403, 409 (6th Cir. 2014) (noting that
evidence of a causal connection was sufficient “where the
time between the employee’s leave expired . . . and the
employee’s termination was two to three months.”), with,
Bush v. Compass Grp. USA, Inc., 683 F. App’x 440, 452
(6th Cir. 2017) (“[T]he relevant timeframe for us to
consider

in

determining

whether

there

was

a

causal

connection between the plaintiff's FMLA leave and the

47

adverse employment action is the ‘time after an employer
learns of a protected activity,’ not the time after the
plaintiff’s

FMLA

leave

expires.”

(quoting

Mickey

v.

Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.
2008)).
Here,

Ray

first

took

FMLA

leave

in

March

2015

(meaning a ten-month gap exists) but Ray exhausted his
leave on October 4, 2015 (resulting in nearly a threemonth

gap).

The

Court

will

assume

the

evidence

of

temporal proximity is sufficient because Ray’s claim
nonetheless fails. See Seeger, 681 F.3d at 283 (“The
burden of proof at the prima facie stage is minimal”);
Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315
(6th Cir. 2001) (“A plaintiff’s burden in establishing a
prima facie case is not intended to be an onerous one.”).
Turning

to

whether

AT&T’s

justification

for

terminating Ray was legitimate and nondiscriminatory,
AT&T offers two reasons: (1) If Ray had returned to work
and Asset Protection was able to confirm that he accessed
a

customer’s

account

and

made

48

changes

without

the

customer being present, he would have been terminated for
violation of the company Code of Business Conduct; and
(2) Ray was terminated because he failed to return to
work after a notice informed him to do so. (Doc. 75-2, ¶
44; Doc. 77-37; Doc. 77-42; Doc. 75-1 at 25). The latter
alone is a legitimate justification.
The sequence of events here is telling: Ray was last
seen at work for less than a minute on September 20,
2015; he then exhausted his FMLA on October 4; AT&T
granted him an ADL until October 26; AT&T issued a return
to work notice on December 10, informing him that his
absence had been unexcused since October 28, 2015 and he
was to return to work by December 15; when that date
passed, Waymire gave Ray until December 26 to show that
he was approved for short-term disability in order to
keep his job; and then Ray was ultimately terminated
after an unexcused hiatus from work for over two months.13
AT&T has thus carried its burden of showing a legitimate

(Doc. 75-4, ¶ 32; Doc. 75-2, ¶ 24; Doc. 75-4, ¶ 32;
Doc. 75-2, ¶¶ 49, 59; Doc. 75-9, Pl.’s Suppl. Resp. to
Interrog. at 7).

13

49

reason for Ray’s termination. Indeed, AT&T went above and
beyond its clear job abandonment policy, under which an
employee is considered to have “voluntarily quit” when
they

are

“absent

from

work

for

three

(3)

or

more

consecutive days . . . without approval.” (Doc. 77-40).
Ray thus must offer evidence of pretext. “A plaintiff
may establish pretext by showing that the employer’s
proffered reason (1) has no basis in fact, (2) did not
actually motivate the action, or (3) was insufficient to
warrant the action.” Cooley, 720 F. App’x at 743 (citing
Seeger, 681 F.3d at 285).
Ray has failed to raise a triable issue under any of
these options. His opposition brief on this issue is
wholly conclusory, and a review of the record yields no
evidence from which a reasonable jury could conclude that
AT&T terminated Ray’s employment due to his use of FMLA
leave.

Thus, Ray’s retaliation claims rests entirely on

temporal proximity. But “the law in this circuit is clear
that temporal proximity cannot be the sole basis for
finding pretext.” Donald v. Sybra, Inc., 667 F.3d 757,

50

763

(6th

Cir.

2012);

Skrjanc,

272

F.3d

at

317

(“[T]emporal proximity is insufficient in and of itself
to establish that the employer’s nondiscriminatory reason
for discharging an employee was in fact pretextual.”).
Count II therefore will be dismissed with
prejudice.
B. Wrongful Use of Administrative Proceedings
(Count III)
Ray

asserts

a

claim

for

“wrongful

use

of

administrative proceedings” against AT&T. To state a
claim for wrongful use of civil proceedings a plaintiff
must establish the following elements:
(1) the institution or continuation of original
judicial proceedings, either civil or criminal, or
of administrative or disciplinary proceedings,
(2) by, or at the instance, of the original
plaintiff/complainant,
(3) the termination of such
original defendant’s favor,

proceedings

in

the

(4) malice in the institution of such proceeding,
(5) want or lack
proceeding, and

of

probable

cause

for

the

(6) the suffering of damage as a result of the
proceeding.
51

Farmers Deposit Bank v. Ripato, 760 S.W.2d 396, 399 (Ky.
1988) (quoting Raine v. Drasin, 621 S.W.2d 895, 389 (Ky.
1981)). Ray’s claim fails to clear the first hurdle.
The basis for Ray’s claim is that in a letter dated
February 19, 2016, Equifax responded to the Kentucky UI
Division’s questionnaire and notice regarding Ray’s claim
for unemployment insurance benefits. In opposing Ray’s
eligibility, Equifax erroneously stated that Ray was
“currently on an approved leave of absence.” (Doc. 75-6,
Ex. C). AT&T maintains that this was inadvertent. Indeed,
that same day, Equifax corrected the error and stated
that

Ray

had

been

“discharged

due

to

excessive

absenteeism and tardiness.” Id. Ex. D. Ray’s application
for

unemployment

benefits

was

denied

but

Ray

later

prevailed on appeal. Ex. E. Neither AT&T nor anyone on
its behalf appeared at the hearing. Id.
The claim fails because Equifax, or AT&T for that
matter,14 did not institute or continue any proceedings.
Neither party addresses the problem that Equifax—not
AT&T—responded to the UI Division’s notice. Generally,
a principal cannot be held liable for the torts

14

52

But even if Ray’s claim is recharacterized as a claim for
abuse

of

process,

it

still

must

fail.

The

Kentucky

Supreme Court describes “an abuse of process claim as the
improper use[] [of] a legal process, whether criminal or
civil, against another primarily to accomplish a purpose
for which that process is not designed . . . .” Garcia
v. Whitaker, 400 S.W.3d 270, 276 (Ky. 2013) (alterations
in original) (citations omitted). “The tort is comprised
of the following two necessary elements: (1) an ulterior
purpose and (2) a willful act in the use of the process
not proper in the regular conduct of the proceeding.” Id.
(citations and internal quotation marks omitted).
Here, Ray cannot establish the second element. First,
nothing suggests this was willful especially given the
fact that Equifax immediately corrected the information
the same day. And second, responding to UI Division
requests for information is not only proper but it is
required under threat of criminal sanctions. See KRS §

committed by an independent contractor. See RESTATEMENT
(SECOND) OF AGENCY §§ 219–220, 250 (AM. LAW INST. 1958) (West
update March 2019); id. § 220 cmt. e.
53

341.990(5)–(6).
This leads to the final alternative framework for
Ray’s claim. KRS § 341.990 also states:
Any person who knowingly makes a false statement
or representation, or who knowingly fails to
disclose a material fact to prevent or reduce
the payment of benefits to any worker entitled
thereto, or to avoid becoming or remaining
subject to this chapter, or to avoid or reduce
any payment required of an employing unit under
this chapter shall be guilty of a Class A
misdemeanor unless the liability avoided or
attempted to be avoided is one hundred dollars
($100) or more, in which case he shall be guilty
of a Class D felony.
KRS § 341.990(a)(6). Although this a criminal statute,
in

a

case

involving

allegations

that

a

plaintiff’s

employer “falsely told Kentucky authorities that he had
quit,” which led to his unemployment benefits being
denied for some time before he was successful on appeal,
the Kentucky Supreme Court recently held that such a
claim is cognizable under KRS § 341.990(a)(6) and KRS
446.070 provides the necessary right of action. Hickey
v. GE Co., 539 S.W.3d 19, 20, 25 (Ky. 2018).
Again, however, Ray raises no triable issue. In
contrast

to

the

facts

of
54

Hickey,

Equifax’s

initial

statement did not cause the denial of Ray’s benefits.
Nothing Equifax stated in the correction letter was false
in any sense of the word. And yet the UI Division denied
Ray unemployment benefits even though it possessed the
corrected information.
Accordingly, the Court will dismiss Count III with
prejudice.
C.

Intentional Infliction of Emotional Distress
(“IIED”) (Count IV) and Negligent Infliction of
Emotional Distress (Count V)

For an IIED claim to be actionable, the conduct at
issue must, inter alia, transcend “all reasonable bounds
of decency” and be considered “utterly intolerable in a
civilized community.” Stringer v. Wal-Mart Stores, Inc.,
151 S.W.3d 796, 791 (Ky. 2004) (quoting Craft v. Rice,
671 S.W.2d 247, 250 (Ky. 1984)).15

In particular, a plaintiff must establish the following
four elements: (1) the defendant’s conduct was
“intentional or reckless”; (2) the conduct was
“outrageous and intolerable” such that “it offends
generally accepted standards of decency and morality”;
(3) there is a “causal connection between the
wrongdoer’s conduct and the emotional distress”; and (4)
the emotional distress caused was “severe.” Willgruber,
920 S.W.2d at 65 (quoting Craft, 671 S.W.2d at 249).

15

55

The facts in this case do not approach this standard.
“The mere termination of employment and the resulting
embarrassment do not rise to the level of outrageous
conduct and resulting severe emotional distress necessary
to support a claim for IIED.” Miracle v. Bell Cty.
Emergency Med. Servs., 237 S.W.3d 555, 560 (Ky. 2007);
see also Wells v. Huish Detergents, Inc., 19 F. App’x
168, 179 (6th Cir. 2001).
Ray’s IIED claim and NIED claim also fail because
each

requires

a

showing

of

“serious”

or

“severe”

emotional distress. Crook v. Maguire, No. 2015-CA-000379MR, 2018 Ky. App. LEXIS 133, at *4 (Ky. Ct. App. May 11,
2018) (citing Osborne v. Keeney, 399 S.W.3d 1, 17 (Ky.
2012)). “Distress that does not significantly affect the
plaintiff’s

everyday

life

or

require

significant

treatment will not suffice. And a plaintiff claiming
emotional distress damages must present expert medical
or scientific proof to support the claimed injury or
impairment.”

Osborne,

399

S.W.3d

at

17

(citations

omitted). Ray has produced no evidence to support this

56

claim.

In

fact,

compensation

is

the
the

anxiety

very

same

for

which

anxiety

he

he

seeks

has

been

experiencing since 2010 when he was employed by another
company. (Doc. 81-1, Pl.’s Dep. at 37–39).
Count IV and Count V will therefore be dismissed with
prejudice.
D.

Vicarious Liability/Negligence (Count VI),
Punitive Damages (Count VII), and Causation and
Damages (Count VIII) are Not Independent Causes
of Action.

In Count VI,

Ray asserts

a claim for

vicarious

liability based on the negligence of Defendants’ agents.
But the doctrine of “respondeat superior is not a cause
of action. It is a basis for holding the [Defendant]
responsible for the acts of its agents.” O’Bryan v. Holy
See,

556

F.3d

361,

370

n.1,

383

(6th

Cir.

2009).

Therefore, Count VI must be dismissed.
Count VII sets forth a claim for punitive damages.
Again, “a claim for punitive damages is not a separate
cause of action, but a remedy potentially available for
another cause of action.” PNC Bank, N.A. v. Merenbloom,
Nos. 15-6361, 16-5277, 2017 WL 3973962, at *3 (6th Cir.
57

June 16, 2017) (citation omitted) (applying Kentucky
law); see also Horton v. Union Light, Heat, & Power Co.,
690 S.W.2d 382, 389 (Ky. 1985). In opposition, Ray cites
to Chelsey v. Abbott, 524 S.W.3d 471 (Ky. Ct. App. 2017).
But Chelsey is easily distinguishable because that case
involved a specific Kentucky statute that “treat[ed]
punitive

damages

as

a

‘claim.’”

Id.

at

481–82.

Accordingly, Count VII will be dismissed.
Finally, causation is merely an element of a common
law negligence claim. Osborne, 399 S.W.3d at 17.

Therefore, having reviewed this matter, and the Court
being advised,
IT IS ORDERED that: (1) Defendants’ motion in limine
to exclude Scott R. Bauries (Doc. 74) be, and is hereby,
GRANTED; (2) Defendants’ motion for summary judgment,
(Doc. 75) be, and is hereby, GRANTED; (3) Defendants’
motion to strike one of Plaintiff’s exhibits (Doc. 86)
be, and is hereby, DENIED AS MOOT; (4) Defendant’s motion
to supplement Defendants’ motion in limine (Doc. 85) be,

58

and is hereby, GRANTED; and (5) A separate judgment shall
enter concurrently herewith.
This 3rd day of February 2020.

59