Barnes v. COXCOM, LLC

Filing 45

OPINION AND ORDER by Judge Terence Kern ; dismissing/terminating case (terminates case) ; granting 32 Motion for Summary Judgment (Documents Terminated: 41 MOTION in Limine ) (lmc, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
KUTRELL BARNES,

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Plaintiff,
vs.
COXCOM, LLC d/b/a
Cox Communications,
Defendant.

Case No. 16-CV-764-TCK-FHM

OPINION AND ORDER
Before the Court is Defendant CoxCom, LLC (“Defendant”)’s Motion for Summary
Judgment and Brief in Support (“Motion for Summary Judgment”) (Doc. 32). For reasons
discussed below, Defendant’s Motion for Summary Judgment is GRANTED.
I.

Factual Background 1
A.

Plaintiff’s Employment at Cox

Defendant hired Plaintiff Kutrell Barnes (“Plaintiff”) on September 15, 2014, as a
Communications Center Specialist I, in Tulsa, Oklahoma. Plaintiff was an at-will employee. (Def.
Ex. 1.) Throughout his employment with Defendant, Plaintiff worked Tuesday to Saturday and
reported to Christi Gladden (“Gladden”). On occasions when Gladden was not available, Plaintiff
also reported to other supervisors, including Sheryl Lay (“Lay”). (Pl. Ex. 4, 118:13-120:1.)
At all relevant times, Defendant’s Attendance Policy (“Attendance Policy”) assigned
employees “occurrences” for failing to work an entire shift, for arriving to work late or leaving
early. An employee was assigned half an occurrence for a late arrival or early departure, and one

1

The following facts are undisputed, or as set forth in Plaintiff’s Response in Opposition
to Defendant’s Motion for Summary Judgment (“Response Brief”) (Doc. 38), or in documentary
evidence.
1

full occurrence for an unscheduled absence. (Def. Ex. 6, 8.) Scheduled and approved absences,
including leave taken under the Family Medical Leave Act (“FMLA”), were excluded from this
policy. Presenting a doctor’s note for an unscheduled absence allowed a two-day absence to count
as one occurrence. This policy was available for employees to review on Defendant’s “MyAxis”
system.
The Attendance Policy changed shortly after Plaintiff began his employment with
Defendant, increasing the number of occurrences necessary for each level of discipline by one.
Effective January 1, 2015, employees were disciplined for unscheduled tardies and absences as
follows: a Documented Verbal Warning after six occurrences, a Written Warning after seven
occurrences, and a Final Written Warning after eight occurrences. An employee was terminated
when he or she accrued nine occurrences in a twelve-month period. During the transition between
the 2014 version and the more lenient 2015 version, an employee who had been issued a warning
under the 2014 Attendance Policy was reissued that same warning on his or her next occurrence.
Additionally, under the 2015 policy all occurrences remained on an employee’s record for twelve
months after they occurred.
Plaintiff had attendance problems throughout his employment with Defendant.

On

November 15, 2014, pursuant to the 2014 version of the Attendance Policy, Gladden issued
Plaintiff a Documented Verbal Warning in response to five and a half occurrences. (Def. Ex. 5.)
After another unscheduled absence on December 14, 2014, Gladden issued Plaintiff a Written
Warning. Gladden also counseled Plaintiff about his attendance issues. On his 2014 evaluation,
Plaintiff received a “Meets Expectations” rating as well as an instruction from Gladden to “focus
on his attendance.” (Def. Ex. 10.) Later, on both February 3 and March 4, 2015, Gladden
counseled Plaintiff about taking extended breaks, lunches, and personal time. On March 19, 2015,

2

Gladden also provided Plaintiff with a coaching letter, encouraging him to make the adjustments
necessary for an acceptable improvement level, and informing him that she would be monitoring
his performance over the next ninety days. On the same date, she reissued Plaintiff a Written
Warning for accumulating seven and a half occurrences, based on two unscheduled tardies on
February 17 and March 7, 2015. (Def. Ex. 12.)
On Plaintiff’s mid-year evaluation dated July 31, 2015, Gladden once again discussed his
attendance, noting that she would like him “to fully focus on his attendance to ensure he
successfully completes his corrective action plan.” (Def. Ex. 14.) After Plaintiff’s mid-year
evaluation, one of Plaintiff’s occurrences “dropped” under the Attendance Policy, as it fell outside
the rolling twelve-month period. Another occurrence dropped on October 7, 2015, and another
half occurrence dropped on October 14, 2015. During this time, Plaintiff also accrued occurrences
for unscheduled absences on October 1, 2015, and October 15, 2015. Accordingly, Gladden issued
Plaintiff another Written Warning on October 16, 2015, for having seven occurrences within a
rolling twelve-month period. All Written Warnings, as well as the coaching letter, noted that
continued attendance issues might result in termination. (Def. Ex. 5, 7, 11, 12, 13, and 15.)
B.

Plaintiff’s Initial FMLA Leave

On October 25, 2015, Plaintiff injured his Achilles’ tendon playing basketball. On October
27, 2015, Plaintiff told Gladden that he would need surgery to repair his Achilles’ tendon, and that
he would need FMLA leave. (Def. Ex. 2, at 89:5-9.) Gladden gave Plaintiff the phone number to
call Unum, Defendant’s third-party administrator for FMLA and short-term disability (“STD”), to
inquire about his eligibility. That same day, Plaintiff applied for FMLA and STD benefits with
Unum.

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Plaintiff was on continuous FMLA/STD leave from October 27 through December 17,
2015. During this time, he received six weeks of full pay and benefits while he underwent surgery
to repair his Achilles’ tendon and recovered. While Plaintiff was on leave, Gladden completed his
annual evaluation for 2015. Plaintiff received a “Meets Expectations” rating on this evaluation, as
well as a $1.01 per hour pay raise, effective upon his return to work. Gladden also instructed
Plaintiff, “I encourage you to focus on your attendance; successfully completing your corrective
action plan.” (Def. Ex. 22.) On December 17, 2015, Plaintiff’s doctor cleared him to return to
work with no restrictions, although he was required to wear a medical boot and to remain seated.
(Pl. Ex. 5.)
C.

Plaintiff’s Return to Work and Subsequent Termination

Plaintiff was scheduled to return to work on December 19, 2015. He did not report to work
that day and was assigned one occurrence. Plaintiff also had unscheduled absences from work on
December 23 and 24, 2015. He was assigned an occurrence for each of those days.
On December 23, 2015, Plaintiff left a telephone message on Defendant’s Employee Status
Line at 10:00 a.m., stating that he had “[taken] some pain medication and overslept,” but would
“be at work shortly.” (Def. Ex. 3.) He also spoke to supervisor Lay. Though the contents of this
call are disputed, Plaintiff contends that he told Lay he had reinjured his Achilles’ tendon getting
out of bed, and that a member of his doctor’s staff had told him to “resume my medicine that I was
taking for—for a couple of days and stay off of it.” (Pl. Ex. 4, at 120:4-11.) Plaintiff contends
Lay informed him that he would not need to contact Unum to request his FMLA/STD benefits if
he would only be absent for two days, but that if he would be absent for three or more days, then
he would need to do so. (Id. at 121:7-12.) At approximately 5:38 p.m., Plaintiff left another
message on the Employee Status Line indicating that he would not be at work, as he might have

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ripped some scar tissue, and he had been told to return to “non-weight bearing” activity and
continue taking Demerol. He also stated that his doctor was unavailable until January 5, 2016, but
that he had spoken with a member of the doctor’s staff. Plaintiff was also absent the following
day, December 24, 2015.
After his absence on December 24, 2015, Plaintiff was tardy on December 26, 2015, stating
that his apartment had been broken into overnight. He was assigned half an occurrence for this
tardy. Plaintiff was also tardy for his scheduled shifts on January 1 and 6, 2016, and was assigned
half an occurrence for each date. Defendant determined that, including the two occurrences on
December 23 and 24, 2015, Plaintiff had nine and a half occurrences under the Attendance Policy.
Gladden asked Melissa Cruts (“Cruts”), Defendant’s Human Resources Manager, whether
Plaintiff was on FMLA “protected leave” status on those December 23, 24, and 26, 2015. (Pl.
Resp. Br., Doc. 38, at 8). After Cruts indicated that he was not, Gladden asked Plaintiff at least
once before January 6, 2016 to provide a doctor’s note.2 Plaintiff never provided this note. Both
Cruts and Gladden knew that Plaintiff had been on FMLA from October 27 through December 17,
2015. (Pl. Resp. Br., at 15-16).
Gladden conducted Plaintiff’s annual review on January 6, 2016, in which she reviewed
the annual evaluation that she had completed while he was on leave. She did not mention that
Plaintiff’s absences on December 23 and 24, 2015 counted as occurrences, and did not mention
that, if Plaintiff produced a doctor’s note pursuant to those two absences, they would only count
as one occurrence, reducing his occurrence total to eight and a half, below the nine that trigger

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Defendant alleges “Gladden asked Plaintiff at least once before January 6, 2016, to
provide her with a doctor’s note or contact Unum.” (Def. Br., at 11.) Plaintiff disputes this fact
“only insofar that he believes Gladden asked him one time for a doctor’s note.” (Pl. Resp. Br., at
8.) Though it is unclear from Plaintiff’s language if he disputes that Gladden told him to contact
Unum, for the purposes of this analysis, the Court will assume that he does.
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termination. She also did not mention that she planned to begin termination review of Plaintiff.
(Pl. Resp. Br., at 13; Pl. Ex. 8.) Cruts and Gladden participated in an email thread on January 11,
2016 beginning termination review and seeking approval for Plaintiff’s termination, but neither
Cruts nor Gladden mentioned on the thread that the December 23 and 24, 2015 absences might
have been covered by FMLA. (Pl. Ex. 9; Pl. Resp. Br., at 16).
Plaintiff was terminated on January 12, 2016, in a meeting with Gladden and another
employee of Defendant, Joe Scranton (“Scranton”). Gladden did not issue Plaintiff a Final Written
Warning prior to terminating his employment. (Pl. Resp. Br., at 14). In the termination meeting,
Gladden and Scranton told Plaintiff that he was being discharged because of his attendance. At
his request, they showed him a list of the days he was absent or tardy. Plaintiff contends that he
told Gladden and Scranton that he believed that the December 23 and 24, 2015 absences were
protected by FMLA. (Pl. Resp. Br., at 13-14). Later, Gladden wrote a memorandum to file about
this meeting. She addressed Plaintiff’s failure to produce a doctor’s note, but not the fact that
Plaintiff claimed that his absences were covered by FMLA. (Pl. Ex. 9.) After his termination by
Defendant, Plaintiff began work at EAN Holdings LLC, operating as Enterprise Rent-a-Car, as an
account coordinator, on March 23, 2016.
D.

Procedural History

Plaintiff filed this action on December 28, 2016, and filed an Amended Complaint on May
16, 2017. In his Amended Complaint, Plaintiff brought claims of FMLA interference and FMLA
retaliation. On November 29, 2017, Defendant filed its Motion for Summary Judgment.
II.

Summary Judgment Standard
Summary judgment is proper only if “there is no genuine issue as to any material fact, and

the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving party

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bears the burden of showing that no genuine issue of material fact exists. See Zamora v. Elite
Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir. 2006). In its summary judgment analysis, the Court
resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party.
Id. However, the party seeking to overcome a motion for summary judgment “must do more than
simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A movant that “will not bear the burden of persuasion at trial need not negate the
nonmovant’s claim,” but may “simply . . . point[] out to the court a lack of evidence for the
nonmovant on an essential element of the nonmovant’s claim.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 671 (10th Cir. 1998) (internal citations omitted). If the movant makes this prima
facie showing, “the burden shifts to the nonmovant to go beyond the pleadings and ‘set forth
specific facts’ that would be admissible in evidence in the event of trial from which a rational trier
of fact could find for the nonmovant.” Id. (citing FED. R. CIV. P. 56(e)). To meet this burden, the
nonmovant must set forth facts “by reference to affidavits, deposition transcripts, or specific
exhibits incorporated therein.” Id. (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d
1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992)). “In response to a motion for summary
judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion, and may not
escape summary judgment in the mere hope that something will turn up at trial. The mere
possibility that a factual dispute may exist, without more, is not sufficient to overcome convincing
presentation by the moving party.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) (internal
citations omitted).
Neither party is required to submit evidence in any particular form, and a party who bears
the burden of proof at trial need not produce evidence that would itself be admissible at trial in

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order to survive a motion for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). However, that party must be able to produce the material that supports these facts in an
admissible form at trial. FED. R. CIV. P. 56(c)(2). For example, though a nonmovant is not required
to depose its own witnesses, it must produce these witnesses at trial to testify on the claims on
which the nonmovant will bear the burden of proof. See id., Celotex, 477 U.S. at 324.
III.

Summary Judgment Analysis
The FMLA “entitles eligible employees of covered employers to take up to twelve weeks

of unpaid, job-protected leave each year due to, among other things, ‘a serious health condition
that makes the employee unable to perform the functions of the position of such employee.’” See
Harbert v. Healthcare Servs. Group, Inc., 391 F.3d 1140, 1147 (10th Cir. 2004) (quoting 29 U.S.C.
§ 2612(a)(1)(D)). The FMLA makes it unlawful for an employer to interfere with, restrain, or
deny an employee’s exercise or attempt to exercise his or her FMLA rights. See Jones v. Denver
Pub. Sch., 427 F.3d 1315, 1319 (10th Cir. 2005); 20 U.S.C. § 2615(a)(1). The FMLA also makes
it unlawful for any employer to retaliate against an employee for exercising or attempting to
exercise his or her FMLA rights. See Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164,
1170-71 (10th Cir. 2006); 29 U.S.C. § 2615(a)(2). Plaintiff has alleged both interference and
retaliation by Defendant. The parties do not dispute that Defendant is a covered employer, and
that at all times relevant to this case, Plaintiff was an FMLA-eligible employee.
A.

Interference Claim
1.

Standard of Proof

Plaintiff alleges that Defendant interfered with his ability to take FMLA leave on December
23 and 24, 2015. To establish a claim of FMLA interference, a Plaintiff must show (1) that he was
entitled to FMLA leave; (2) that some adverse action by the employer interfered with his right to

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take FMLA leave, such that he was prevented from taking the full twelve weeks of leave
guaranteed by the FMLA, that he was denied reinstatement following leave, or that he was denied
permission to take leave; and (3) that the employer’s action was related to the exercise or attempted
exercise of the plaintiff’s FMLA rights. See Dalpiaz v. Carbon County, 760 F.3d 1126, 1132 (10th
Cir. 2014) (citing Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007).
In such claims, an employer’s subjective intent is irrelevant. See Smith v. Diffee Ford-LincolnMercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002) (citing King v. Preferred Technical Group, 166
F.3d 887, 891 (7th Cir. 1999)). If a plaintiff shows that his employer did interfere with his right
to take FMLA leave, the burden shifts to the employer to show that it would have taken the adverse
action regardless of the employee’s FMLA leave. See id., at 963. Here, Defendant contends
Plaintiff cannot establish the first of these elements, that Plaintiff was entitled to FMLA leave.
(Def. Reply Br. (“Reply Brief.”), Doc. 40, at 2.)
2.

Was Plaintiff Entitled to Take FMLA Leave?

An employee is entitled to FMLA leave, among other reasons, if the leave is (1) the result
of a “serious health condition” that (2) “makes the employee unable to perform the functions” of
his or her job. See Crowell v. Denver Health & Hosp. Auth., 572 F. App’x 650, 654 (10th Cir.
2014) (unpublished) (quoting Stoops v. One Call Commc’ns, Inc., 141 F.3d 309, 313 (7th Cir.
1998) (internal citations omitted)); 29 C.F.R. § 825.112(a)(4). An employee must meet both of
these elements to be entitled to FMLA leave. See id. For the purposes of the Motion for Summary
Judgment, the parties do not dispute that Plaintiff had a “serious health condition.” Accordingly,
this Court must only evaluate whether that serious health condition made Plaintiff “unable to
perform the functions” of his job.

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An employee is unable to perform the functions of his position when a “health care provider
finds that the employee is unable to work at all, or is unable to perform any one of the essential
functions of the employee’s position.” 29 C.F.R. § 825.123(a). The employee bears the burden
of proving that he is unable to perform any one of the essential functions of his or her position.
See Dalpiaz, 760 F.3d at 1132; Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 254 (3rd Cir.
2014) (“The [FMLA] regulations place the onus on an employee’s health care provider—not her
employer—to certify whether the employee is unable to perform any essential function of her
job.”). A health care provider must be the one to determine and certify whether an employee is
unable to perform any one of the essential functions of his position. See id.; 29 C.F.R. 825.123(a).
Here, it is undisputed that Plaintiff did not physically go to his doctor’s office and did not
speak to his doctor in connection with his absences on December 23 and 24, 2015. It is also
undisputed that Plaintiff never provided a doctor’s note in connection with those absences.
However, Plaintiff contends a material dispute exists as to whether he was unable to perform any
one of the essential functions of his position for two reasons. First, Plaintiff contends that the
presence of a serious health condition—undisputed for the purposes of this motion—in itself
demonstrates a genuine dispute as to whether an employee is able to perform the functions of his
position. Second, Plaintiff cites his own testimony describing his condition and his conversation
with a member of his doctor’s staff.3
a.

Presence of a Serious Health Condition

Plaintiff argues that the fact that he has a serious health condition—undisputed for the
purposes of this motion—creates a genuine dispute as to whether he was unable to perform any

3

In his Response Brief, Plaintiff refers to this person as a “physician’s assistant” (Pl.
Resp. Br., at 7, 8, 12 and 19). Defendant refers to this person as a “nurse practitioner.” (Def.
Br., at 10, 20 and 21).
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one of the essential functions of his position. In support of this argument, Plaintiff cites Crowell
v. Denver Health & Hospital Authority, the only Tenth Circuit case to construe 29 C.F.R. §
825.123(a). See No. 12-CV-00019, 2013 U.S. Dist. LEXIS 28322 (D. Colo. Mar. 1, 2013).
However, Plaintiff’s reliance on Crowell is misplaced. The court in Crowell held that, as
a factual matter, the same disputed facts that created a triable issue of fact as to whether the plaintiff
had a serious health condition also created a triable issue of fact regarding whether the plaintiff
was able to perform any one of the essential functions of her job. The court based this holding on
testimony and documentation from plaintiff’s doctors. However, the court did not hold that the
presence of a serious health condition automatically creates a jury issue regarding whether a
plaintiff can perform his job. Unlike in Crowell, Plaintiff in this case has presented no testimony
from a doctor and no documentation as to a serious health condition. Accordingly, the undisputed
presence of a serious health condition is not sufficient here to create a genuine dispute of material
fact as to whether Plaintiff was unable to perform any one of the essential functions of his position.
b.

Plaintiff’s Testimony

Plaintiff contends that he “can testify as to the physical and mental condition he was in,”
and that this testimony creates a genuine dispute as to whether he was unable to perform any one
of the essential functions of his position. (Pl. Resp. Br., at 19.) Plaintiff testified that a member
of his doctor’s staff gave him oral instructions to return to non-weight bearing activity and to
continue taking Demerol. However, Plaintiff has not offered any documentary or medical
testimony evidence in support of these facts. (Pl. Ex. 4, at 120:5-11.) This evidence is insufficient
to demonstrate a genuine dispute, as a plaintiff’s testimony alone is never enough to support a
genuine dispute of material fact, and Plaintiff has offered no admissible evidence to support his
claim that he was unable to perform any one of the essential functions of his position.

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The plain text of the implementing regulations indicate that a health care provider must be
the one to determine and certify whether an employee is unable to perform any one of the essential
functions of his position. See 29 C.F.R. 825.123(a); Dalpiaz, 760 F.3d at 1132; Budhun, 765 F.3d
at 254. Moreover, in cases where the Court has considered a plaintiff’s testimony in finding a
genuine dispute of material fact, the testimony did not stand on its own, but rather, supplemented
existing medical and documentary evidence. See Branham v. Gannett Satellite Info. Network, Inc.,
619 F.3d 563, 570 (6th Cir. 2010) (finding a genuine dispute of material fact where plaintiff’s
testimony, her medical records, and the testimony of a Nurse Practitioner conflicted with another
doctor’s evaluation); Barker v. R.T.G. Furniture Corp., 375 F. App’x 966, 968 (11th Cir. 2010)
(unpublished) (finding no genuine dispute of material fact where the plaintiff offered no medical
testimony demonstrating incapacity and offered only his own testimony of his symptoms, but no
testimony that he was unable to complete his work). By contrast, in this case Plaintiff has offered
no evidence other than his own testimony to show that he was unable to perform any one of the
essential functions of his position. (Pl. Resp. Br., at 19.) Without additional documentary or
testimonial evidence, Plaintiff cannot show any specific facts to support a genuine issue as to any
material fact.
Further, any testimony Plaintiff might offer regarding the contents of his call with his
doctor’s office are out-of-court statements offered to prove the truth of the matter asserted, and as
such, are inadmissible hearsay. See FED. R. EVID. 801(c), 802; McClure v. Comair, Inc., No. 04107, 2005 U.S. Dist. LEXIS 46170, *16-*17 (E.D. Ky. July 20, 2005) (a plaintiff’s testimony
about the treatment she received was not sufficient to demonstrate that a health care provider found
her unable to perform any one of the essential functions of the employee’s position); Austin v.
Haaker, No. 98-2283, 76 F. Supp. 2d 1213, 1221 (D. Kan. 1999) (same); Matewksi v. Orkin

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Exterminating Co., No. 02-233, 2003 U.S. Dist. LEXIS 11127, *26-*27 n.26 (D. Me. July 1, 2003)
(adopted, No. 02-233, 2013 U.S. Dist. LEXIS 15217 (D. Me. Sept. 3, 2003)) (Report and
Recommendation holding that an unauthenticated note from Plaintiff’s doctor was admissible
generally, but was not to be used to establish the truth of the matter asserted in the note).
While inadmissible hearsay is permissible in response to a motion for summary judgment,
the party offering that evidence must be able to offer material that supports these facts in an
admissible form at trial. See FED. R. CIV. P. 56(c)(2); See Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986). In this case, however, Plaintiff has represented only that he would present this same
inadmissible material at trial. (Pl. Resp. Br., at 19.) Plaintiff cannot use that evidence at trial to
establish that he was entitled to FMLA leave. Because Plaintiff could not present these facts in
admissible form at trial, he may not appropriately rely on them at summary judgment.
3.

Equitable Estoppel

Plaintiff also contends that Defendant is estopped from arguing that Plaintiff was not
eligible for FMLA leave because Defendant initially represented to Plaintiff that he was eligible
for FMLA leave.4 Plaintiff contends that he was misinformed by Lay that he did not need to
contact Unum if he was only absent for two days.5 For the purpose of this analysis, the Court

4

Plaintiff describes this argument as waiver argument, as an employer may waive its
right to the notice that employees are required to provide before taking FMLA leave. See 29
C.F.R. § 825.304(e). However, this argument is misplaced, as the Tenth Circuit does not require
notice to prove an interference claim. See Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 877 n.2
(10th Cir. 2004); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d at 960-61. Based on the
substance of Plaintiff’s argument, as well as the substance of Defendant’s construction of this
argument, the Court construes this argument as an equitable estoppel argument.
5
The Tenth Circuit has not determined whether equitable estoppel may apply in an
FMLA action. Banks v. Armed Forces Bank, 126 F. App’x 905, 906-907 (10th Cir. 2005)
(unpublished). However, several other circuit courts have recognized that employers may be
equitably estopped from denying FMLA benefits under certain circumstances. See Fryman v.
West Telemarketing, L.P., No. 06-CV-327, 2007 U.S. Dist. LEXIS 42591 (N.D. Okla. June 4,
2007) (citing Minard v. ITC Deltacom Communications, Inc., 447 F.3d 352 (5th Cir. 2006);
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assumes without deciding that equitable estoppel may apply; however, Plaintiff has failed to satisfy
the required elements.
To prove a claim of FMLA equitable estoppel under federal law, a party must establish:
(1) that the employer knew all the facts, (2) that the employer intended that the employee would
act on the employer’s representations or conduct, (3) that the employee was ignorant of the true
facts, and, (4) that the employee relied on the employer’s conduct, to the employee’s detriment.
See Sutherland v. Goodyear Tire & Rubber Co., 446 F. Supp. 2d 1203, 1211 (D. Kan. Feb. 14,
2006) (citing Rios v. Ziglar, 398 F.3d 1201, 1208 (10th Cir. 2005)) (internal citations omitted);
Banks v. Armed Forces Bank, 313 F. Supp. 2d 1095, 1108 (D. Kan. 2004); aff’d 126 F. App’x 905
(10th Cir. 2005). Equitable estoppel is also a heavily fact-based inquiry. See Davis v. Staffmark
Inv., LLC, No. 05-CV-706, 2006 U.S. Dist. LEXIS 29618 (N.D. Okla., May 12, 2006).
Although it is not clear from their Reply Brief, Defendant appears to argue that Plaintiff
cannot satisfy the third element, reasonable reliance. In claiming equitable estoppel, an employee
cannot rely on unreasonable ignorance of facts he should know; the employee’s reliance must be
objectively reasonable. See Heckler v. Community Health Servs., 467 U.S. 51, 59 (holding that
reliance must have been reasonable); Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 494 (8th Cir.
2002) (upholding a finding of equitable estoppel where the plaintiff’s reliance was “not
unreasonable”).
Here, the undisputed facts show that Plaintiff was on notice that he must contact Unum to
request FMLA leave. Plaintiff’s two-day absence occurred two days after Plaintiff returned from

Sorrell v. Rinker Materials Corp., 395 F.3d 332 (6th Cir. 2005); Kosakow v. New Rochelle
Radiology Associates, 274 F.3d 706 (2nd Cir. 2001) (applying estoppel when plaintiff could have
elected to postpone surgery until after FMLA requirements met); Dormeyer v. Comerica BankIllinois, 223 F.3d 579 (7th Cir. 2000)).
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FMLA leave. It is unreasonable to think that just eight weeks after the start of his initial FMLA
leave, Plaintiff would be entirely ignorant as to the process for requesting FMLA leave. Further,
at least once before January 6, 2016, Gladden asked Plaintiff to provide her a doctor’s note, clearly
indicating to Plaintiff that she considered his December 23 and 24, 2015 absences as occurrences,
and that they would not qualify for FMLA leave without more documentation. (Def. Br., at 18).
It is unreasonable to believe that Plaintiff would rely only on Lay’s statements over the phone, to
the exclusion of an explicit statement by his own manager upon his return to work. Furthermore,
there is no indication that Defendant intended to mislead Plaintiff.
By contrast, cases where Courts have applied equitable estoppel generally involve far more
explicit representations, prolonged courses of conduct, or “close calls” in which an employee could
have been eligible for FMLA leave if he or she had altered his or her behavior slightly. See Davis,
2006 U.S. Dist. LEXIS 29618, at *10. For example, the Eighth Circuit applied equitable estoppel
to bar an employer from asserting that leave in excess of twelve weeks was not protected under
the FMLA when they notified the plaintiff in writing that his entire thirty-four week sick leave
qualified under the FMLA. See Duty, 293 F.3d at 493; c.f. Banks, 126 F. App’x at 906-907 (10th
Cir. 2005) (unpublished) (declining to apply equitable estoppel where the plaintiff was initially
informed that she could use FMLA leave, and then, after making plans based on this representation,
informed that she could not). Here, the reading of Lay’s alleged comments most favorable to
Plaintiff, in combination with Gladden’s request for a doctor’s note, still falls far short of the
affirmative misrepresentations that other courts have found to warrant equitable estoppel.
Plaintiff relies on Murphy v. FedEx Nat’l. LTL, Inc., another Eighth Circuit case, in support
of his equitable estoppel argument. See 618 F.3d 893, 899-200 (8th Cir. 2010). In Murphy, an
employer called an employee who was already on FMLA leave to inform her that her leave had

15

expired, and ask her how much more leave she anticipated taking. The employer represented to
the employee that they had granted her 30 additional days of leave, but then called her again, four
days later, to terminate her employment. This employer was estopped from arguing that an
employer was not in fact entitled to FMLA leave.
Murphy is materially distinguishable from the record here. For example, unlike in Murphy,
Plaintiff returned to work from his FMLA leave after his doctor cleared him to return to work.
This makes it significantly less likely that, like the plaintiff in Murphy, he could reasonably
understand his subsequent absences to be part of the same FMLA absence. Additionally, the
parties do not dispute that after returning to work, Plaintiff had at least one conversation with
Gladden, in which she advised him to produce a doctor’s note regarding to his absences on
December 23 and 24, 2015. These intervening events make it substantially less likely either that
Plaintiff relied on Lay’s statement, or that, if he did so, his reliance was reasonable. Accordingly,
Murphy does not change the Court’s conclusion that equitable estoppel is unwarranted here.
B.

Retaliation Claim

Plaintiff alleges that Defendant retaliated against him for his use of FMLA leave. Though
Plaintiff’s pleadings are not clear on this matter, the Court presumes based on his Response Brief
that Plaintiff bases his retaliation claim exclusively on his termination. Additionally, for the
purposes of Plaintiff’s retaliation claim, this Court construes Plaintiff to argue that Defendant
retaliated against both Plaintiff’s use of FMLA leave from October 27 through December 17, 2015,
and Plaintiff’s alleged attempted use of FMLA leave on December 23 and 24, 2015.
1.

Standard of Proof

The FMLA prohibits an employer from retaliating against an employee for exercising his
rights under the FMLA. 29 U.S.C. § 2615(a)(2). Retaliation claims under the FMLA are subject

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to the burden-shifting analysis of McDonnell Douglas. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973); Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1135 (10th Cir.
2003). To establish a prima facie case of FMLA retaliation, an employee must show that (1) he
engaged in protected activity, (2) his employer took an action that a reasonable employee would
have found materially adverse, and (3) a causal connection between the protected activity and the
adverse action. If the plaintiff establishes the prima facie elements, then the defendant must offer
a legitimate, non-retaliatory reason for the employment action. The plaintiff then bears the
ultimate burden of demonstrating that the defendant’s proffered reason is pretextual. See Metzler,
464 F.3d at 1170-72. Here, it is undisputed that Plaintiff engaged in protected activity when he
took FMLA leave, and that his termination constituted an adverse action. (Def. Br., at 29-31; Pl.
Resp. Br., at 24.) Accordingly, this Court must only determine whether Plaintiff has shown a
causal connection between the protected activity and the adverse action before engaging in
McDonnell Douglas burden-shifting analysis.
2.

Causal Connection

To establish a prima facie causal connection, Plaintiff must demonstrate an employer’s
“bad intent” or “retaliatory motive.” See Campbell v. Gambro Healthcare, 478 F.3d 1282, 1287
(10th Cir. 2007). To demonstrate a retaliatory motive, Plaintiff “must show that the individual
who took the adverse action against him knew of the protected activity.” Wood v. Handy &
Harmon Co., No. 05-CV-532, 2006 U.S. Dist. LEXIS 81186 (N.D. Okla. Nov. 6, 2006) (citing
Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) (Title VII retaliation case). Plaintiff must
also demonstrate “but-for” causation. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,
2533 (2013) (Title VII retaliation). The evidence of but-for causation, like all evidence presented

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by the nonmovant, “must be based on more than mere speculation, conjecture, or surmise.” Bones
v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
If a plaintiff shows that the individual who took adverse action against him knew of his
protected activity, a very close temporal proximity can establish a prima facie showing of but-for
causation. See Metzler, 464 F.3d at 1171; Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014)
(explaining that Nasser’s but-for causation standard is consistent with existing Tenth Circuit
precedent regarding temporal proximity); Dulany v. Brennan, No. 16-CV-149, 2017 U.S. Dist.
LEXIS 36132, *22 (N.D. Okla. Mar. 14, 2017). For example, in Metzler, the court held a
termination that occurred four to six weeks after protected activity to be “very closely connected
in time.” Metzler, 464 F.3d at 1172. By contrast, a three-month period between the protected
conduct and the adverse action was too long to infer causation in Anderson v. Coors Brewing Co.,
an EEOC case. See 181 F.3d 1171, 1179 (10th Cir. 1999).
It is undisputed that Defendant knew of Plaintiff’s October 27 through December 17, 2015
FMLA leave, and his subsequent attempted use of FMLA on December 23 and 24, 2015. Further,
only twenty days elapsed between the protected activity and the adverse action, establishing a very
close temporal connection. Accordingly, Plaintiff has presented sufficient facts to demonstrate
causation.
3.

Legitimate, Non-Retaliatory Reason

Because Plaintiff has made out a prima facie case of FMLA retaliation, the Court must
determine whether Defendant has offered a legitimate, non-retaliatory reason for terminating
Plaintiff. The Court finds that it has. Defendant has offered substantial evidence of Plaintiff’s
attendance issues, including repeated warnings and counseling, which eventually led to his
termination.

Plaintiff’s attendance issues are a legitimate, non-discriminatory reason for

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terminating Plaintiff’s employment. See Schrieber v. Fed. Express Corp., No. 09-CV-128, 698 F.
Supp. 2d 1266 (N.D. Okla. Mar. 8, 2010) (three disciplinary actions in twelve months, which
warranted termination under the employer’s policies, was a legitimate, non-retaliatory reason for
termination); Wilbanks v. Nordman Group, Inc., No. 09-CV-0572, 2010 U.S. Dist. LEXIS 113402
(N.D. Okla. Oct. 25, 2010) (a final warning for absences, among other issues, was a legitimate,
non-retaliatory reason for termination); Edwards v. Southcress, LLC, No. 11-CV-0017, 2012 U.S.
Dist. LEXIS 31873, at *19 (W.D. Okla. Mar. 9, 2012) (repeated violations of the employer’s clock
in/clock out policy was a legitimate, non-retaliatory reason for termination); accord Dewitt v.
Southwestern Bell Tel. Co., 845 F.3d 1299 (10th Cir. 2017).
Moreover, there is no evidence that anyone involved in Plaintiff’s termination even
considered FMLA leave when deciding to terminate Plaintiff. (Pl. Ex. 8, 9.) In internal discussions
of whether to terminate Plaintiff, Cruts only mentioned his “ongoing attendance issues” and new
occurrences that have “progressed him to the point of a separation review.” (Pl. Ex. 8.) Similarly,
in Gladden’s memorandum to file discussing Plaintiff’s termination meeting, she only discussed
his attendance issues. She also noted that she had asked Plaintiff for a doctor’s note regarding his
December 23 and 24, 2015 absences at least once, a fact which demonstrates that she did not
believe that Plaintiff’s December 23 or 24, 2015 absences were covered by FMLA, at least without
more documentation.6 (Pl. Ex. 9.) Accordingly, Defendant has offered a legitimate, nonretaliatory reason for terminating Plaintiff.

6

Defendant also contends that when Gladden told Plaintiff to provide her with a doctor’s
note, she told him that, in the alternative, he should call Unum. Though it is unclear if Plaintiff
disputes that Gladden told him to call Unum, this fact, if undisputed, further supports
Defendant’s claim that it terminated Plaintiff for legitimate, non-discriminatory reasons, as it
demonstrates that Gladden indicated to Plaintiff that those absences would not count as
occurrences at all if Unum approved him for FMLA/STD benefits. 
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4.

Pretext

Because Defendant has articulated a legitimate, non-discriminatory reason for Plaintiff’s
termination, the burden shifts back to Plaintiff to demonstrate that there is a genuine issue of
material fact as to whether Defendant’s proffered non-discriminatory reason was “unworthy of
credence.” See Burris v. Novartis Animal Health U.S., Inc., 309 F. App’x 241, 244 (10th Cir.
2009) (unpublished) (quoting Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1104 (10th Cir.
2005)). Mere conjecture that the employer’s explanation is pretext is insufficient for denial of
summary judgment. See id.
While the close temporal proximity of Plaintiff’s FMLA leave and his termination is
sufficient to establish a prima facie causal connection, Plaintiff must present additional
circumstantial evidence to establish that Defendant’s reason for terminating him—attendance
issues—is pretextual. Plaintiff argues that Defendant: (1) did not take any actions to determine if
Plaintiff’s absences qualified for FMLA leave; (2) did not take any action to warn Plaintiff that he
was close to termination; (3) is estopped from asserting attendance as a legitimate reason for
termination based on Plaintiff’s conversation with Lay on December 23, 2015; and (4) did not
issue Plaintiff a Final Written Warning, in accordance with the Attendance Policy.
This Court has already held that Plaintiff has not successfully made out an equitable
estoppel argument. Additionally, this Court does not find persuasive Plaintiff’s argument that
Defendant’s failure to take sufficient actions to warn Plaintiff that he was close to termination
demonstrates pretext. While an employer cannot retaliate against an employee for exercising his
or her rights under the FMLA, “an employee who requests leave or is on leave has no greater rights
than an employee who remains at work.” Gunnell v. Utah Valley State College, 152 F.3d 1253,
1262 (10th Cir. 1998). Like all employees, Plaintiff was responsible for producing a doctor’s note

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concerning his absences. Moreover, Gladden instructed Plaintiff at least once to do so, clearly
indicating that Gladden understood these absences to be occurrences under the Attendance Policy.
Plaintiff took no action in response to this request, and cannot now claim Defendant’s failure to
do more demonstrates pretext. Similarly, Defendant issued Plaintiff many written and oral
warnings related to his attendance, all of which noted that continued performance issues could
result in termination. (Def. Ex. 5, 7, 11, 12, 13, and 15.) These undisputed facts vitiate any claim
that Defendant’s failure to take sufficient actions to warn Plaintiff demonstrates pretext.
Plaintiff also points out that Defendant never issued him a Final Written Warning, which
is a departure from the Attendance Policy. Demonstrating that “the defendant acted contrary to
written company policy prescribing the action to be taken by the defendant under the
circumstances” may, in an appropriate case, give rise to a fact issue regarding pretext. See Metzler,
464 F.3d at 1176 (citing Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1230 (10th Cir. 2000)).
For example, an employer departing from employment criteria set out in a job announcement so
as to disadvantage a minority employee seeking a promotion was indicative of discrimination. See
Mohammed v. Callaway, 698 F.2d 395, 400-01 (10th Cir. 1983). However, the mere fact that an
employer failed to follow its own internal procedures does not necessarily demonstrate pretext.
Rather, the Court infers pretext from the falsity of the employer’s explanation, including deviation
from written company policy. See DePaula v. Easter Seals El Mirador, 859 F.3d 957, 976-77
n.25 (10th Cir. 2017); Trujillo v. PacifiCorp, 524 F.3d 1149, 1160 (10th Cir. 2008) (citing Reeves
v. Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000).
The Court finds that a genuine dispute exists as to whether Defendant acted contrary to
written company policy. While the Attendance Policy states that employees will be issued a Final
Written Warning after eight occurrences, Defendant’s policies and communications with Plaintiff

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also state that all employment is at-will and that Defendant reserves the right to take any
employment action as appropriate.

(Def. Ex. 1, 8.)

Moreover, Gladden testified that the

Attendance Policy does not require a Final Written Warning. (Pl. Ex. 10, at 47:9-50:2.) These
conflicting facts raise a question of fact.
Nonetheless, this potential departure from written company policy is not sufficient to
demonstrate pretext, even in combination with the close temporal proximity. For example, in
Randle v. City of Aurora, the City did not announce an open position, even though the City’s
practice, as reflected in the Personnel Manual, was to do so. See 69 F.3d 441, 454 (10th Cir. 1995).
This prevented the plaintiff from applying for and potentially receiving this promotion. However,
the court held that this deviation from the City’s internal procedures was a mistake which did not
reflect pretext, as the City claimed that it promoted the other employee because she was the most
qualified for the position, and the plaintiff had offered no evidence suggesting that this reason was
pretext. Id.
As in Randle, Defendant here may have deviated its Attendance Policy in failing to provide
a Final Written Warning. However, it is undisputed that, counting his absences on December 23
and 24, 2015, Plaintiff had exceeded the nine occurrences that trigger termination under the
Attendance Policy. (Def. Ex. 8, 23.) In addition, Plaintiff received several warnings regarding his
attendance, including one in his annual evaluation, which Gladden reviewed with him on January
6, 2016. All warnings issued pursuant to the Attendance Policy, as well as a coaching letter
Plaintiff received, noted that continued attendance issues could result in termination. (Def. Ex. 5,
7, 11, 12, 13, and 15.) Accordingly, like in Randle, the relatively minor, procedural departure
from Defendant’s written policy in not issuing a Final Written Warning, while an error, cannot
give rise to a fact issue regarding pretext without substantially more supporting evidence.

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IV.

Conclusion
For the reasons set forth above, the Court finds that Plaintiff has failed to establish a

genuine dispute of material fact as to either his FMLA interference claim or his FMLA retaliation
claim. For these reasons, Defendant’s Motion for Summary Judgment is GRANTED. An order
of judgment will be entered separately.

SO ORDERED THIS 7th day of February, 2018.

__________________________________________
TERENCE C. KERN
United States District Judge 

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