West v. Pella Corp.

Filing 47

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 10/20/2017. For the reasons stated herein, Pella Corporation's Motion for Summary Judgment, (DN 20 ), is DENIED. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:16-CV-154-TBR
CHARLES WEST,

PLAINTIFF

v.
PELLA CORPORATION,

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Pella Corporation’s Motion for Summary
Judgment, [DN 20.] Plaintiff Charles West responded, [DN 22], and Pella Corporation replied,
[DN 23.] Fully briefed, this matter is now ripe for adjudication. For the reasons set out below,
Pella Corporation’s motion for summary judgment is DENIED.
BACKGROUND
This matter arises out of Plaintiff Charles West’s employment with Pella Corporation
(“Pella”) at its manufacturing plant in Murray, Kentucky. West was employed by Pella from
March 2004 until his termination in February 2015. [DN 22-1 at 7 (West Deposition).]
According to Pella, West had a history of attendance issues throughout his employment. [See DN
20-1 (Pella’s Motion for Summary Judgment).] In April of 2005, West applied for and was
granted FMLA leave after he suffered from severe gum disease that required a large amount of
dental work, including the extraction of his teeth. [DN 22-1 at 22.] However, according to West,
Pella provided him with the paperwork, he “just filled in the blanks, and they told me to give it to
the doctor, and he filled in the rest.” [Id. at 23.] West further explained in his affidavit that,
during that period of leave, he called into work every day and told his supervisor that he would
not be able to work. [DN 22-3 at 1 (West Affidavit.)] West stated that, after he called in every
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day for several weeks, Pella sent West the FMLA paperwork to be completed by West and his
dentist. [Id. at 2.] In other words, West stated that he “did not ask for the paperwork, and did not
know or understand that it was FMLA paperwork.” [Id.]
In June of 2014, West injured his back at work while lifting heavy windows. [DN 22-1 at
11.] West did not immediately visit a doctor for his injury, but testified that he was taking
Ibuprofen, which helped him get through his shifts, “until it got worse” about two weeks later.
[Id. at 12–13.] West began calling in sick for work on June 9, 2014, and continued to call in
every day until he returned to work on August 26, 2014. [DN 20-11 at 2 (Jeremy Phillips
Affidavit).] Each day, West stated that he could not work due to back pain or spasms. [Id.] West
explained in his affidavit that, by calling in every day to report that he was not feeling well
enough to work, he followed the same procedure as he had in 2005 when he was absent due to
his extensive dental work. [DN 22-3 at 2.]
West testified that he visited a primary care physician about two weeks after he began his
absence from work. [DN 22-1 at 14–15.] That visit took place on June 26, 2014, and resulted in
diagnoses of lumbago and muscle spasms. [DN 20-24.] Additionally, West’s provider prescribed
multiple medications. [Id.] After that visit, West went into Pella to provide the doctor’s note
from that visit to Jeremy Phillips, Pella’s human resources manager. [DN 22-1 at 19–20.]
According to West, at that time, Phillips provided him with contact information to apply for
short-term disability benefits. [Id. at 20.] Though Phillips averred in his affidavit that West
received both short-term disability and FMLA leave paperwork, [DN 20-11 at 2], West testified
in his deposition that Phillips only ever told him about short-term disability, and only every
provided him with a phone number to call, rather than paperwork. [DN 22-1 at 18.] West did
apply for short-term disability, but his application was denied because his “doctor’s notes didn’t

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cover the entire time that [he] was out” from work. [Id. at 20.] When asked whether West ever
applied for FMLA leave during his absence, West responded “I didn’t know anything about it.”
[Id. at 21.] The parties agree that West never filled out an application for FMLA leave relating to
his June 9 to August 25, 2014 absences.
According to West, sometime in July, his manager, Johnny Phillips, contacted him and
told him that, since he had been out from work, he needed to go back to the doctor. [Id. at 15–
16.] On July 31, 2014, West returned to the same primary care provider he saw at his previous
visit. [DN 20-25.] At that visit, West’s doctor performed an x-ray, which revealed severe
arthritis, in addition to his other diagnoses of degenerative disc disease and lumbago. [Id.; DN
22-1 at 17.] The doctor prescribed West multiple medications. [See DN 20-25.]
When West returned to work on August 26, 2014, he received two disciplinary letters,
called “Class 3 Corrective Action Letters,” related to his absence from June 9 to August 25,
2014. Both letters are dated June 25, 2014. [DN 20-13; DN 20-14.] The first Corrective Action
Letter was issued due to West’s failure to report for mandatory overtime on June 14 and June 21,
2014. [DN 20-13.] The second Corrective Action Letter was issued due to “excessive
absenteeism” from June 9, 2014 to June 25, 2014. [DN 20-14.] Both letters warned West that
“receiving three Class 3 Corrective Action Letters in a one-year period will lead to the
termination of your employment.” [DN 20-13; DN 20-14.] West testified that he was told to sign
both letters (which he did), or that he would be terminated. [DN 22-1 at 27.]
West testified during his deposition that, after he received the two Corrective Action
Letters upon his return to work on August 26, he informed Pella that he would “be on medication
for the rest of [his] life” due to his back issues. [Id. at 44.] However, West did not discuss with
Pella representatives what type of medication he was on. [Id. at 45.]

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Pella’s records indicate that West next called in sick for five consecutive workdays in
February 2015. According to Pella, West called in sick on February 4, 5, 6, 9, 10, and 12. [DN
22-1 at 29–30.] West’s manager at that time, Tony Robinson, stated that, each day West called in
on February 4, 5, and 6, that West requested vacation for those days. [Id. at 30.] Robinson stated
that he approved West for vacation, but that on the third day, he charged West with an
attendance incident for failing to request the vacation in advance as required by Pella’s policy.
[Id. at 31.] Pella next claims that West called in sick on February 9 and 10 after he ran off the
road and his truck got stuck in the mud. [Id. at 31–32.] Finally, Pella’s records indicate that West
also called in sick on February 12, 2015 for “personal business.” [DN 20-20.]
West agrees that he called in sick on February 9 when his truck was stuck, but denies
ever calling in sick on February 4, 5, 6, 10, or 12. [Id. at 30–32.] According to West, he “was
only out one day” in February. [Id. at 33.] According to Phillips, on February 10, 2015, West
was formally counseled over the phone about his absences and tardiness at work. [DN 20-11 at
3.] However, West testified that he could not recall this phone conversation ever taking place.
[DN 22-1 at 35–36.] West agreed, however, that after he was absent for his truck breaking down,
Pella called to inform him that he was suspended for absenteeism. [Id. at 37–38.] According to
West, he was already suspended before February 12, 2015, when Pella claims West called in sick
due to “personal business.” [DN 22-1 at 41.]
Pella sent West a letter via certified mail dated February 12, 2015 stating that West
received a third Class 3 Corrective Action Letter on February 12, 2015 for “excessive
absenteeism/tardiness’ and that he was discharged from employment at Pella that same day for
receiving three Class 3 Corrective Action Letters in a twelve month period. [DN 20-20.]
According to Pella, Jeremy Philips met with West on February 13, 2015 to discuss his attendance

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issues. [DN 20-11 at 4.] Philips states that he asked West whether “there was an underlying
reason for the absences that [Pella] could address though Pella’s employee assistance program,
and Mr. West answered no and mentioned that his absences were caused by ‘other stuff that
keeps happening.’” [Id.]
Under Pella’s Attendance Policy, unexcused absences constitute “occurrences,” and the
time employees miss from work count toward the calculation of an “absenteeism rate %.” [DN
20-5 at 1.] Pella’s Policy explains that an employee’s attendance record will be considered
“unacceptable” when an employee incurs four or more occurrences or has an absenteeism rate of
2% or higher, whichever occurs first in a rolling twelve-month period. [Id. at 2.] According to
Pella, because West’s attendance record violated its attendance policy, and because West
received three Class 3 Corrective Action Letters in a one-year period, it determined that West
was properly terminated under the progressive discipline process outlined therein. [DN 20-11 at
5.] Pella sent a termination letter to West on February 18, 2015 formalizing his February 12,
2015 discharge. [Id.]
West brought suit against Pella, asserting, relevant to the instant motion, claims of FMLA
interference and FMLA retaliation. [DN 15 (First Amended Complaint).]
STANDARD
Summary judgment is appropriate when the record, viewed in the light most favorable to
the nonmoving party, reveals “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 genuine dispute of
material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The
Court “may not make credibility determinations nor weigh the evidence when determining

5

whether an issue of fact remains for trial.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th
Cir. 2014) (citing Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers v. Schebil,
188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question is ‘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.’ ” Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir.
2012) (quoting Anderson, 477 U.S. at 251–52).
The moving party must shoulder the burden of showing the absence of a genuine dispute
of material fact as to at least one essential element of the nonmovant’s claim or defense. Fed. R.
Civ. P. 56(c); see also Laster, 746 F.3d at 726 (citing Celotex, 477 U.S. at 324). Assuming the
moving party satisfies its burden of production, the nonmovant “must—by deposition, answers to
interrogatories, affidavits, and admissions on file—show specific facts that reveal a genuine issue
for trial.” Laster, 746 F.3d at 726 (citing Celotex, 477 U.S. at 324). “[N]ot every issue of fact or
conflicting inference presents a genuine issue of material fact.” Street v. Bradford & Co., 886
F.2d 1472, 1477 (6th Cir. 1989). The test is “whether the party bearing the burden of proof has
presented a jury question as to each element in the case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th
Cir. 1996). Nor will mere speculation suffice to defeat a motion for summary judgment: “[t]he
mere existence of a colorable factual dispute will not defeat a properly supported motion for
summary judgment. A genuine dispute between the parties on an issue of material fact must
exist to render summary judgment inappropriate.” Monette v. Elec. Data Sys. Corp., 90 F.3d
1173, 1177 (6th Cir. 1996).
DISCUSSION
Though West asserted a total of six claims in his amended complaint, [DN 15], in his
response to Pella’s motion for summary judgment, West indicated that he is abandoning all but

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two of those claims. Herein, West only opposes summary judgment with regard to his claims
under the Family Medical Leave Act (FMLA). [DN 22 at 1–2 (West’s Response).]
“The FMLA entitles qualifying employees up to 12 work weeks of leave under specified
circumstances, including if they are suffering from a serious health condition.” Tennial v. United
Parcel Serv., Inc., 840 F.3d 292, 307 (6th Cir. 2016) (citing 29 U.S.C. § 2612(a)(1)(D)). The
Sixth Circuit “has recognized two theories of recovery under the FMLA: interference and
retaliation. Id. (citing Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 282 (6th Cir.
2012)). In this case, West brings claims under both theories.
A. FMLA Interference
The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided” by the FMLA. 29 U.S.C. § 2615(a)(1).
“[A]n employer violates the FMLA under the ‘interference’ theory if it fails to provide its
employee with his FMLA entitlements or interferes with an FMLA-created right, regardless of
the employer’s intent.” Casagrande v. OhioHealth Corp., 666 F. App'x 491, 496 (6th Cir. 2016)
(citing Arban v. W. Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003)).
Employees can prove claims of FMLA interference using the McDonnell Douglas
burden-shifting framework. Demyanovich v. Cadon Plating & Coatings, LLC, 747 F.3d 419, 427
(6th Cir. 2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under that
framework, “the employee has the initial burden of establishing his prima facie case; if he does
so, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its
actions; finally, the employee has the burden of rebutting the employer’s proffered reasons by
showing them to be pretextual.” Id. (citing Donald v. Sybra, Inc., 667 F.3d 757, 761–62 (6th Cir.
2012)).

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(1) Prima Facie Case
In order for West to make out a prima facie case of FMLA interference, he “must show
that: (1) he was an eligible employee; (2) [Pella] was a covered employer under the FMLA; (3)
he was entitled to take leave under the FMLA; (4) he notified [Pella] of his intent to take leave;
and (5) [Pella] denied him benefits or rights to which he was entitled under the FMLA.” Id.
(citing Edgar v. JAC Prods., Inc., 443 F.3d 501, 506 (6th Cir. 2006)). Here, Pella does not
dispute that West was an eligible employee and that Pella was a covered employer under the
FMLA. [DN 20-1 at 27.] However, according to Pella, West cannot prove the remaining three
elements. [Id.]
a) Serious Health Condition
With regard to the third element, Pella argues that West was not entitled to take FMLA
leave because he did not have a serious health condition. [DN 20-1 at 27–28.] The FMLA
defines “serious health condition” as “an 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.” 29 U.S.C. § 2611(11). Here,
West does not allege that he received any inpatient care, but rather alleges that he received
continuing treatment by a health care provider. [DN 22 at 14.] Specifically, West argues that his
chronic arthritis and lumbago constitute a “chronic serious health condition” as defined in 29
C.F.R. § 825.115(c).1 Under that section, “[a] serious health condition involving continuing
treatment by a health care provider includes” the following:

1

Pella argues that West does not meet the requirements for a serious health condition relating to incapacity and
treatment as defined under § 825.115(a) because West failed to prove that he experienced a period of incapacity of
more than three consecutive days and because he was not treated the required number of times. However, as West
does not argue that subsection (a) applies to him, and instead argues that he meets the requirements for a serious
health condition as outlined in subsection (c) of §825.115, the Court need not address the applicability of subsection
(a).

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(c) Chronic conditions. Any period of incapacity or treatment for such incapacity
due to a chronic serious health condition. A chronic serious health condition is
one which:
(1) Requires periodic visits (defined as at least twice a year) for treatment by a
health care provider, or by a nurse under direct supervision of a health care
provider;
(2) Continues over an extended period of time (including recurring episodes
of a single underlying condition); and
(3) May cause episodic rather than a continuing period of incapacity (e.g.,
asthma, diabetes, epilepsy, etc.).
29 C.F.R. § 825.115(c)(1)–(3). Under § 825.113(b), “[t]he term incapacity means inability to
work, attend school or perform other regular daily activities due to the serious health condition,
treatment therefore, or recovery therefrom.” 29 C.F.R. § 825.115(b). Section 825.113(c) provides
that “[t]he term treatment includes (but is not limited to) examinations to determine if a serious
health condition exists and evaluations of the condition.” 29 C.F.R. § 825.113(c). “A regimen of
continuing treatment includes, for example, a course of prescription medication (e.g., an
antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition
(e.g., oxygen).” Id. Courts within the Sixth Circuit have held that “[w]hether an illness qualifies
as a serious health condition under the FMLA is a legal question which the court must
determine.” Taylor v. Autozoners, LLC, 706 F. Supp. 2d 843, 849 (W.D. Tenn. 2010) (quoting
Alston v. Sofa Express, Inc., No. 2:06–CV–0491, 2007 WL 3071662, at *8 (S.D. Ohio Oct. 19,
2007)).
According to West, his diagnoses of lumbago, muscle spasms, sacroiliac joint (SJ)
arthritis, and degenerative disc disease (DDD) constitute a chronic serious health condition
qualifying him for FMLA leave. [DN 22 at 14–15.] During his period of absence from June 9,
2014 to August 25, 2014, West visited a health care provider twice. The first visit occurred on

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Thursday, June 26, 2014. At that visit, Dr. Susan Heffley, MD, diagnosed West with lumbago
and muscle spasms. [DN 20-24 at 2.] She prescribed thirty days’ worth of Diclofenac Sodium,
Medrol and fourteen days’ worth of Zanaflex. Dr. Heffley stated that West would be out of work
on June 27 and June 28, but that he could return on June 30. [Id.]
The second visit took place on July 31, 2014. At that visit, Dr. Heffley identified West’s
diagnoses as SI joint arthritis, DDD, and lumbago. [DN 20-25 at 2.] She prescribed him another
thirty days’ worth of Diclofenac Sodium, thirty days’ worth of Zanaflex, and discontinued
West’s use of Medrol. [Id.] Under West’s plan of treatment, Dr. Heffley wrote that West could
return to work on Monday, August 4, 2014 and that she “explained that this will be a chronic
condition that will flare up from time to time.” [Id. at 3.] In his deposition, West stated that he
would “be on medication for the rest of [his] life.” [DN 22-1 at 44.]
By visiting Dr. Heffley once in June 2014 and once in July 2014, West meets the
“[r]equires periodic visits (defined as at least twice a year) for treatment by a health care
provider” element of a chronic serious health condition. See 29 C.F.R. § 825.115(c)(1). Next,
because, as Dr. Heffley wrote in West’s records, West’s back issues would “be a chronic
condition that will flare up from time to time,” West also meets the second and third elements
requiring that the condition “[c]ontinues over an extended period of time (including recurring
episodes of a single underlying condition)” and that the condition “[m]ay cause episodic rather
than a continuing period of incapacity.” See 29 C.F.R. § 825.115(c)(2)–(3). Moreover, the fact
that Dr. Heffley prescribed West with medications after each visit further demonstrates that he
was undergoing continuing treatment, which includes “for example, a course of prescription
medication (e.g., an antibiotic).” 29 C.F.R. § 825.113(c). Additionally, the fact that Dr. Heffley
explicitly designated West’s condition as “chronic” and specified that it would continue to “flare

10

up from time to time” demonstrates West’s need for continuing treatment, including continuing
medication, and potential further absences from work in the future.
In opposition to a finding that West suffered from a serious health condition, Pella
argues, first, that Dr. Heffley only prescribed West one months’ worth of prescriptions at each
visit and did not prescribe refills. However, Dr. Heffley prescribed West additional prescriptions
at the July 31 appointment, during which she also informed West that his condition would
continue to flare up, which indicates that she would continue to prescribe him with new
prescriptions as needed.
Second, Pella emphasizes the fact that, after each visit, both of which occurred on a
Thursday, Dr. Heffley indicated that West could return to work the following Monday. True,
West never did return to work at any time between June 9, 2014 and August 25, 2014. According
to Pella, the fact that West did not provide medical documentation for his absences from June 9
to June 26, July 1 to July 30, or August 4 to August 26 demonstrates that West was not
incapacitated and therefore that was not suffering from a serious health condition. The Court
disagrees. The Sixth Circuit has made clear that “[a]bsences attributable to a chronic serious
health condition . . . qualify for FMLA leave even if the employee or family member does not
receive treatment from a health care provider during the absence.” Perry v. Jaguar of Troy, 353
F.3d 510, 515 (6th Cir. 2003); see also 29 C.F.R. § 825.115(c) (requiring only “periodic visits
(defined as at least twice a year).”). This is different from a serious health condition due to
incapacity and treatment under § 825.115(a), which does require specific amounts of treatment
by health care providers within certain time periods. 29 C.F.R. § 825.115(a)(1)–(4). Though a
chronic serious health condition “[m]ay cause episodic rather than a continuing period of

11

incapacity,” this is a permissive, rather than mandatory requirement, meaning that the statute
contemplates both episodic and continuing periods of incapacity.
Accordingly, the fact that West does not have medical documentation for his entire
period of absence does not render him ineligible for FMLA leave due to a chronic serious health
condition. In the Court’s view, it is sufficient that Dr. Heffley characterized West’s back
problems as chronic and continuing. This, combined with the facts that West satisfies all three
elements for chronic serious health condition, leads the Court to conclude that West was eligible
for FMLA leave. Here, West sought medical attention on more than one occasion, was
administered multiple prescription medicines, and indicated to Pella that he was not well enough
to work for several weeks in a row. Contra Bauer v. Dayton-Walther Corp., 910 F. Supp. 306,
310 (E.D. Ky. 1996), aff'd sub nom. Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109 (6th
Cir. 1997) (“Nor did Bauer suffer from a ‘chronic serious health condition’ as defined in the
regulations. Bauer sought medical attention on only one occasion due to his condition.
Apparently, no treatment of this condition was ever administered. Moreover, Bauer’s condition
did not present the sort of episodic period of incapacity contemplated . . . his condition caused
him only to miss work one full day and leave early twice”).
b) Notice of Need for FMLA Leave
With regard to the fourth element of West’s prima facie case, Pella asserts that West
never notified Pella of his intent to take FMLA leave. [DN 20-1 at 29.] In determining whether
an employee provided its employer with adequate notice of his need for FMLA leave, “[t]he
critical question is whether the information imparted to the employer is sufficient to reasonably
apprise it of the employee's request to take time off for a serious health condition.” Walton v.
Ford Motor Co., 424 F.3d 481, 486 (6th Cir. 2005) (quoting Brohm v. JH Props., Inc., 149 F.3d

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517, 523 (6th Cir. 1998)); see also Reeder v. Cty. of Wayne, Michigan, 694 F. App'x 1001, 1006
(6th Cir. 2017) (Explaining that an employee “will be deemed to have given the employer
sufficient notice by providing information from which the employer can reasonably conclude
that an FMLA-qualifying circumstance is in play.”). To do so, “the employee need not expressly
assert rights under the FMLA or even mention the FMLA.” 29 C.F.R. § 825.303(b). Rather, “it is
incumbent on the employer—if more information is needed to determine whether the condition
is FMLA-qualifying—to require, by written notice, certification by a health-care provider.”
Reeder, 694 F. App'x at 1006 (citing Wallace v. FedEx Corp., 764 F.3d 571, 586 (6th Cir.
2014)). In other words, as the Sixth Circuit has explained, “[t]he employee’s burden is not
heavy.” Wallace, 764 F.3d at 586. “[W]hat is practicable, both in terms of the timing of the
notice and its content, will depend upon the facts and circumstances of each individual case.”
Walton, 424 F.3d at 486 (quoting Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 724 (6th Cir.
2003)). Moreover, it is not enough for an employer to only request a certification from a health
care provider; rather, the employer also has a duty to “advise the employee and ‘shall state in
writing what additional information is necessary’” in that certification. Reeder, 694 F. App’x at
1006 (quoting 29 C.F.R. § 825.305(c)).
In Cavin, for example, the Sixth Circuit found that a genuine dispute of material fact
existed as to whether the employee provided adequate notice of his need for FMLA leave. Cavin,
346 F.3d at 724. There, the employee claimed that he “called security on the day of his
motorcycle accident to inform Honda of his absence . . . He told security that he expected to
return to work the following day, but after receiving treatment from another doctor Cavin called
in absences for several additional days on a daily basis.” Id. According to the employer, Honda,
however, the employee

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only “told the security desk that he had been in an accident, could not work that
day, and would be back at work the next day.” Honda notes that Cavin never
requested leave, did not state that he would need to miss work for an extended
period, and failed to provide any other information that might lead Honda to
conclude that Cavin was experiencing a “serious health condition” for FMLA
purposes.
Id. As a result, the court found that there was “[c]learly . . . a disputed issue of material fact as to
the content of the notice Cavin gave Honda.” Id. Similarly, in Reeder, the Sixth Circuit
concluded that “three notes of health-care providers certifying that [the plaintiff] was unable to
work in excess of eight hours per day” was sufficient to “create a genuine question for the jury as
to whether [the plaintiff] had given the [employer] sufficient notice that he was subject to an
FMLA-qualifying condition that would excuse him from mandatory overtime work.” Reeder,
694 F. App'x at 1006.
Here, West testified that he informed his manager, John Moon, that he pulled his back out
at work when lifting heavy windows. [DN 22-1 at 11.] Both parties agree that, beginning on June
9, 2014 and until August 25, 2015, West called his manager every day to report that he could not
work due to back pain or spasms. [DN 20-11 at 2; DN 22-3 at 2.] West stated in his affidavit that
he decided to call in every day during that time because he had done the same thing in 2005
relating to his dental work. [DN 22-3 at 2.] West also provided Pella with his doctor’s notes from
June 26 and July 31, 2014. [DN 20-11 at 3.] Therein, Dr. Heffley indicated that West had various
diagnoses, including lumbago, muscle spasms, SI joint arthritis, and DDD. [DN 20-24; DN 2025.] Moreover, according to West, in July, his then-manager, Johnny Phillips, contacted him and
told him that, since he had been out from work for an extended period, he needed to go back to
the doctor. [DN 22-1 at 15–16.] This led to West’s second visit on July 31, 2014. [DN 20-25.]
This evidence, taken in the light most favorable to West, could suggest that Pella had notice of
West’s back injuries and that it recognized his need for further medical care and treatment. This,
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in turn, would have triggered Pella’s duty to gather more information and require a certification
from West’s health care provider. In sum, the Court finds that there are genuine factual disputes
as to whether West met his burden of providing Pella with adequate notice of his need for leave
due to an FMLA-qualifying condition.
c) Denial of Benefits or Rights under the FMLA
With regard to the fifth element of West’s prima facie case, Pella contends that, because
West never gave it notice of his need to take FMLA leave, that it could not have denied him any
FMLA rights or benefits. [DN 20-1 at 29.] “A benefit is denied if an ‘employer interferes with
the FMLA-created right to medical leave or to reinstatement following the leave.’” Tennial, 840
F.3d at 308 (quoting Arban, 345 F.3d at 401). Here, because the Court finds that a genuine
dispute exists as to whether West provided Pella with adequate notice of his need for leave, the
Court likewise finds that the issue of whether Pella interfered with such leave is also in genuine
dispute. Specifically, there is a genuine dispute about whether Pella met its obligation to “obtain
any additional required information [from West] through informal means,” 29 C.F.R. §
825.303(b), to require a certification from a health-care provider, and to counsel West about the
consequences of an inadequate certification. For instance, though West testified that Pella
provided him with and instructed him to complete FMLA forms in 2005, he denies that they did
the same in 2014. Taken in the light most favorable to West, the Court finds that a factual dispute
exists as to whether Pella interfered with West’s FMLA rights. Therefore, West has raised
genuine disputes of material facts as to the fourth and fifth elements of his prima facie case.
(2) Legitimate, Nondiscriminatory Reason
As the Court explained above, genuine disputes of material fact exist as to the fourth and
fifth elements of West’s prima facie case for FMLA interference. However, according to Pella,

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even if West can make out a prima facie case for FMLA retaliation, it had a legitimate,
nondiscriminatory reason for terminating him, in which case it can still prevail on summary
judgment. Specifically, Pella claims that it terminated West’s employment on the legitimate,
nondiscriminatory basis that he missed work on February 4, 5, 6, 9, 10, and 12, 2015, which
violates Pella’s company Attendance Policy and was grounds for West’s termination. [DN 20-1
at 15; DN 20-15 (Pella Weekly Attendance Activity Report); DN 20-17 (Payroll Records); DN
20-18 (Attendance Records).] According to Pella, West received one occurrence for missing
February 4, 5, and 6, another for missing February 9, a third for missing February 10, and a
fourth for missing February 12. [DN 20-1 at 9–10.] In total, this resulted in four additional
occurrences in February 2015. Under Pella’s Attendance Policy, “[a]n employee’s Attendance
Performance will be considered unacceptable” when an employee has “4 or more Occurrences or
2% higher Absenteeism Rate whichever occurs first in the last 12 months.” [DN 20-5 at 2.] True,
the Sixth Circuit has held that “a poor attendance record” can serve as a legitimate,
nondiscriminatory reason for termination. Harris v. Circuit Court, Clerk's Office, Metro.
Nashville, 21 F. App'x 431, 433 (6th Cir. 2001). According to Pella, then, it was justified in
terminating West for his four February 2015 absences, separate and independent from West’s
absences from June 9 to August 25, 2014.
However, the Court finds Pella’s argument to be unpersuasive for two reasons. First,
West denies having missed work at all in February with the exception of the one day on which he
called in when his truck was stuck in the mud. According to West, that was the sole day of work
he missed in February 2015. At his unemployment hearings, which both parties reference in their
pleadings, West testified that he had been charged with training another employee and, by early
February, that new employee was finished being trained so his lead, Kyle, “kept sending [him]

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home every day . . . “[b]ecause he didn’t need [West] on the line.” [DN 22-15 at 42 (Transcript
of Unemployment Hearing).]
Pella, on the other hand, points to a letter West wrote to the Kentucky Unemployment
Insurance Commission (KUIC), in which he wrote “In February, 2015 I was out of work because
I was sick, and I also had car trouble.” [DN 20-22 at 1.] Then, in his brief titled “Appellant’s
Summary Statement” before the KUIC, West’s counsel wrote “On February 6, 2015, Mr. West
missed work because he was sick.” [DN 20-23 at 3.] While this may tend to show that West
admitted to missing work on February 6, he still disputes that he missed work on February 4, 5,
10, and 12.
Pella also contends that its attendance and payroll records created contemporaneous to
West’s alleged absences corroborate the fact that West was gone on those dates in February. [See
DN 20-15; DN 20-16.] However, the Weekly Attendance Activity Report only shows West as
having been “out” on February 7, but none of the other February dates. [DN 20-16 at 3.] This is
odd in light of the fact that Pella does not assert that February 7 was one of the days West was
absent in February. Pella’s Payroll Records for February, however, indicate that West took
vacation on February 4 and 5, was out due to “sick/injury” on February 6, and was out on
“personal business” on February 9 and 10, 2015. The records do not appear to address February
12, however. [See DN 20-16).] Though these payroll records may tend to corroborate Pella’s
claims that West indeed missed multiple days of work in February, the Court finds that West’s
assertions to the contrary, along with his claim that he was sent home early many of those days,
are nonetheless sufficient to create genuine disputes of fact as to his February absences.
However, the Court also finds Pella’s proffered legitimate, nondiscriminatory reason to
be insufficient for a second reason. In detail, though Pella claims it could have legitimately

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terminated West based solely on his February absences, it does not appear that this is what Pella
actually did. Rather, in a letter outlining the grounds for West’s discharge, Pella referenced all
three of the Class 3 Corrective Action Letters Pella issued to West in the past year, two of which
were issued during West’s June 9 to August 25, 2014 absences. [DN 20-20 at 1.] Moreover, in
that letter, Pella specifically stated that its grounds for terminating West included the fact that
“receiving three corrective action letters of any class within a twelve month period will require
discharge.” [Id.] Accordingly, it appears that West’s termination was “intimately intertwined”
with his potentially FMLA-qualifying leave. See Wallace, 764 F.3d at 590 (“[W]hen the
absences and cause for discharge relate directly to the FMLA leave . . . there is no legitimate and
independent reason for dismissal. In this case, the purported legitimate reason is intimately
intertwined with the FMLA leave, and therefore, we reject [the employer’s] contention.”). Here,
because Pella clearly relied, in part, on West’s June, July, and August 2014 absences as grounds
for his termination, which may have been protected under the FMLA, the Court finds that Pella
has failed to articulate a legitimate, nondiscriminatory reason at the summary judgment stage.
(3) Pretext
For similar reasons, West has also demonstrated a genuine dispute as to whether Pella’s
preferred reason is pretextual. Plaintiffs can demonstrate pretext “by showing: ‘(1) that the
[employer's] proffered reasons [for the adverse employment action] had no basis in fact, (2) that
the proffered reasons did not actually motivate the employer's action, or (3) that they were
insufficient to motivate the employer's action.’” Parkhurst v. Am. Healthways Servs., LLC, No.
16-6502, 2017 WL 2790684, at *3 (6th Cir. June 27, 2017) (quoting Chen v. Dow Chem. Co.,
580 F.3d 394, 400 (6th Cir. 2009)). Here, as the Court already explained above, Pella’s claim
that it terminated West for his February absences appears to have “not actually motivate[d]

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[Pella’s] action” because, as demonstrated by the discharge letter dated February 12, 2015, Pella
also terminated West for his two June, 2014 Corrective Action Letters. [DN 20-20 at 1.]
Accordingly, the Court finds that genuine disputes of fact exist for trial as to West’s FMLA
interference claim.
Nor does the Court find Pella’s “honest belief” argument persuasive. The Sixth Circuit
“has adopted an ‘honest belief’ rule with regard to an employer’s proffered reason for
discharging an employee. Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117
(6th Cir. 2001) (citing Smith v. Chrysler Corp., 155 F.3d 799, 806–07 (6th Cir. 1998)). Under the
honest belief doctrine, “as long as an employer has an honest belief in its proffered
nondiscriminatory reason for discharging an employee, the employee cannot establish that the
reason was pretextual simply because it is ultimately shown to be incorrect.” Id. However, the
Court does not find the honest belief rule to be applicable here. Rather, courts typically turn to
that rule when an employee challenges the factual basis for an adverse employment decision. See
Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598 (6th Cir. 2007) (Explaining that an
employee’s “disagreement with the facts uncovered in [the employer’s] investigation” into the
employee’s work performance did not create a genuine dispute of material fact because the
employer had an honest belief in its reason for terminating the employee). Here, however, Pella
does not deny that West’s two June 2014 Corrective Action Letters are among the reasons he
was ultimately terminated. Accordingly, that rationale does not entitle Pella to summary
judgment, which the Court will deny with regard to West’s FMLA interference claim.
B. FMLA Retaliation
The FMLA also makes it “unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful by” the FMLA. 29

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U.S.C. § 2615(a)(2). “An employer also violates the FMLA under the ‘retaliation’ theory if it
takes adverse action against an employee because the employee invokes an FMLA right, rather
than for a legitimate, nondiscriminatory reason.” Casagrande, 666 F. App'x at 496 (citing
Seeger, 681 F.3d at 282). Unlike with FMLA interference, “[a] plaintiff proceeding under a[n]
[FMLA] retaliation theory must show discriminatory or retaliatory intent.” Tennial, 840 F.3d at
308.
FMLA retaliation can also be proven under the McDonnell Douglas burden-shifting
framework. In order for West to make out a prima facie case of FMLA retaliation, he “must
show that (1) he engaged in an activity protected by the [FMLA], (2) this exercise of his
protected rights was known to [Pella], (3) [Pella] thereafter took an employment action adverse
to [West], and (4) there was a causal connection between the protected activity and the adverse
employment action.” Tennial, 840 F.3d at 308 (citing Arban, 345 F.3d at 404).
Though the Court recognizes that claims of FMLA interference are separate and distinct
from claims of FMLA retaliation, the Court finds that, for many of the same reasons as the Court
articulated above, genuine disputes of material fact preclude summary judgment on West’s
FMLA retaliation claim. With regard to the first and second elements of West’s prima facie case,
the Court determined above that the parties genuinely dispute whether West attempted to engage
in FMLA-protected activity and whether Pella had adequate notice that West was attempting to
exercise FMLA rights. Pella concedes the third element, that West’s termination was an adverse
employment action. [DN 20-1 at 31.]
With regard to the fourth element, Pella contends that West cannot show a causal
connection “between Mr. West’s alleged non-receipt of FMLA paperwork in June 2014 and his
termination from employment eight months later in February 2015.” [Id. at 32.] However, as the

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Court explained above, part of Pella’s grounds for terminating West were the two Corrective
Action Letters he received in June, 2014, during his absence due to back issues. [DN 20-20 at 1.]
Because genuine factual disputes remain as to whether Pella had notice of West’s FMLAqualifying injury, the Court finds that whether Pella retaliated against West because of it is also
disputed and better left to a jury determination.
Finally, because Pella asserts the same legitimate, nondiscriminatory reason that it
asserted for West’s FMLA interference claim, for the same reasons as outlined above, the Court
finds that justification to be insufficient. Accordingly, summary judgment will also be denied
with regard to West’s FMLA retaliation claim.
CONCLUSION
Though the Court found many of the issues discussed herein to be close calls, the Court
ultimately determined that the conflicting evidence on several points warrants a jury
determination. Therefore, for the reasons stated herein, Pella Corporation’s Motion for Summary
Judgment, [DN 20], is DENIED.
IT IS SO ORDERED.
Date:
cc:

October 20, 2017

Counsel of Record

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