Alexander v. Kellogg USA, Inc.

Filing 28

ORDER GRANTING MOTION 21 FOR SUMMARY JUDGMENT OF DEFENDANT. Signed by Judge S. Thomas Anderson on 3/14/2016. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
CHRISTOPHER ALEXANDER,
Plaintiff,
v.
KELLOGG USA, INC.,
Defendant.

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Case No. 2:15-cv-02158-STA-tmp

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Plaintiff Christopher Alexander filed this action in the Circuit Court of Fayette County,
Tennessee, against his former employer Kellogg USA, Inc., alleging claims of interference and
retaliation under 29 U.S.C. § 2615(a)(1)-(2) of the Family and Medical Leave Act (“FMLA”)
and retaliation under the Tennessee Workers’ Compensation Act, Tenn. Code Ann. §§ 50-6-101
et seq. (ECF No. 1-2.)1 Defendant Kellogg removed the action to this Court. (ECF No. 1.)
Defendant has now filed a motion for summary judgment. (ECF No. 21.) Plaintiff has filed a
response (ECF No. 26), and Defendant has filed a reply to the response. (ECF No. 27.) For the
reasons set forth below, Defendant’s motion is GRANTED.
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.”2
When deciding a motion for summary judgment, the court must review all the evidence and draw
1

On August 4, 2015, this Court consolidated the present action with Christopher Alexander v.
Kellogg USA, Inc., Civil Action No. 2:15-cv-02049-STA-cgc. (Order, ECF No. 16, 2:15-cv02049-STA-cgc.)
2

Fed. R. Civ. P. 56(c).

all reasonable inferences in favor of the non-movant.

3

In reviewing a motion for summary

judgment, the Court views the evidence in the light most favorable to the nonmoving party, and
it “may not make credibility determinations or weigh the evidence.”4 When the motion is
supported by documentary proof such as depositions and affidavits, the nonmoving party may
not rest on his pleadings but, rather, must present some “specific facts showing that there is a
genuine issue for trial.” 5 These facts must be more than a scintilla of evidence and must meet
the standard of whether a reasonable juror could find by a preponderance of the evidence that the
nonmoving party is entitled to a verdict.6
When determining if summary judgment is appropriate, the Court should ask “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.”7 The Court must enter summary
judgment “against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case and on which that party will bear the burden of proof at
trial.”8
The parties have agreed on the following facts.9 Kellogg owns and operates a facility in
Rossville, Tennessee. Plaintiff was hired by Kellogg as a production operator at the Rossville
3

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

4

Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014).

5

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Eastham v. Chesapeake Appalachia,
L.L.C., 754 F.3d 356, 360 (6th Cir. 2014).
6

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

7

Id. at 251–52.

8

9

Celotex, 477 U.S. at 322.
(Def’s St’ment of Mat. Fcts, ECF No. 22-1; Pl’s Resp. to St’ment of Mat. Fcts, ECF No. 26-2.)
2

facility on August 6, 2006.10 Plaintiff remained employed in that role until his terminations on
January 28, 2014.11
Kellogg gave Plaintiff and reviewed with him the “Rossville Plant Attendance Policy”
when he was hired by Kellogg. Employees at the Kellogg Rossville Bakery are expected to
abide by the “Rossville Plant Attendance Policy.” On at least four separate occasions from
August 2006 through January 2013 Kellogg issued Plaintiff a revised attendance policy. The
attendance policy states:
All employees must call in two (2) hours prior to shift start to report off from
work. (In conjunction with this revision, the company will be using
CALLEXPERT, INC (a Call Center) for employees to report their absences.
Kellogg’s call-in requirement is designed to allow the scheduler or the employee’s supervisor to
rework the schedule based on that day’s absences to ensure adequate staffing at each position.
Plaintiff acknowledges Kellogg’s expectation that all employees call the CALLEXPERT service
to report an absence, regardless of the reason for such absence. The attendance policy states:
“Attendance will be measured by ‘Points Accumulation.’ Discipline will be based on the number
of points an employee accumulates.”12
The attendance policy allows for “Approved FMLA” and “Worker’s Compensation
benefits” as excused absences, but it clearly states that, with such absences, “documentation [is]
required.” The policy also states that “[a]n employee who fails to provide sufficient
documentation of a continued absence from work will not discount the level of discipline up to
10

Kellogg contends that Plaintiff’s principal duty was to be generally responsible for machinery
maintenance while Plaintiff contends that he was responsible for the operation of machinery and
not machinery maintenance. (Id. No. 4.) This is not a material dispute for the purpose of
deciding this motion.
11

(Def’s St’ment of Mat. Fcts Nos. 1 – 5, ECF No. 22-1; Pl’s Resp. to St’ment of Mat. Fcts,
ECF No. 26-2.)
12

(Id. Nos. 6 –8, 10 - 13.)
3

and including termination, which is prescribed for a particular occurrence level, because of
his/her absence from work (i.e. an employee may be issued and progress through the
disciplinary steps for attendance even if not at work).” (emphasis in original).13
Kellogg’s FMLA program is administered through CIGNA, a third party vendor.
Employees requesting FMLA certification must submit all requisite doctors’ notes and related
documentation to CIGNA. CIGNA then notifies the employee as to whether FMLA is approved,
denied, or whether further documentation is required. When questions with CIGNA arise,
employees often contact Kellogg’s Human Resources Department who “try and help [the
employee] get the days approved or certified.”

Every time an employee is certified for

intermittent FMLA leave, CIGNA notifies the employee that, to be approved for any particular
absence, the employee must report that absence as intermittent leave within forty-eight hours of
the absence. CIGNA provides employees with two options for reporting intermittent leave: by
telephone or through the Internet. The process for requesting approval of individual intermittent
leave - notifying CIGNA through one of the two approved methods within forty-eight hours of
missing work - was the same each time Plaintiff requested FMLA leave throughout his tenure
with Kellogg. Plaintiff used both approved reporting methods.14
Plaintiff requested and was approved for either continuous or intermittent FMLA on
approximately ninety separate occasions during his employment. Between June and September
2009, Plaintiff requested and received intermittent leave on twelve separate occasions.15
13

(Id. Nos. 16-17.) Plaintiff admits the wording of the policy only. (Pl’s Resp. to St’ment of
Mat. Fcts,, p. 2 No. 17, ECF No. 26-2.)
14

(Def’s St’ment of Mat. Fcts Nos. 18-23, ECF No. 22-1; Pl’s Resp. to St’ment of Mat. Fcts,
ECF No. 26-2.)
15

(Id. Nos. 24-25.)

4

Plaintiff sustained two separate workplace injuries during his employment with Kellogg.
In 2010, Plaintiff suffered an injury to one of his toes as a result of a chemical spill. As a
consequence, Plaintiff was placed on short-term disability leave for approximately six to eight
months and received workers’ compensation benefits during the leave. Plaintiff did not suffer
any adverse employment action as a result of his leave or for filing a workers’ compensation
claim about his toe.16
In June 2012, Plaintiff slipped on a wet floor and injured his neck. As a result, Plaintiff
was once again placed on short-term disability leave for approximately eight months and
received workers’ compensation benefits for the duration of the leave.17
On November 6, 2013, Plaintiff received a letter from CIGNA notifying him that he was
certified for intermittent FMLA leave for the period beginning October 24, 2013, until April 24,
2014. The CIGNA letter reminded Plaintiff, “During your leave, you will need to report your
intermittent leave time within 48 hours…” The letter also provided the phone number and
Internet website which Plaintiff should use to report his leave.18 On November 20, 2013, only
two weeks after the date of the CIGNA letter, Plaintiff took a day of intermittent leave.19
CIGNA sent Plaintiff a letter notifying him that the leave request for November 20, 2013,
had been denied. Kellogg calculated that this attendance violation placed Plaintiff with 7.5
attendance points, which was sufficient for a final reprimand under the attendance policy, but
16

(Id. Nos. 27-30.)

17

(Id. Nos. 32-33.)

18

Plaintiff contends that the correct phone number was not provided to him. (Pl’s Resp. to
St’ment of Mat. Fcts, p. 3 No. 36, ECF No. 26-2.)
19

(Def’s St’ment of Mat. Fcts Nos. 35-37, ECF No. 22-1; Pl’s Resp. to St’ment of Mat. Fcts,
ECF No. 26-2.)

5

Plaintiff was not issued a final reprimand.20
Plaintiff again missed work on December 9, 10, and 11, 2013.

Plaintiff called

CALLEXPERT for each of those days as required by the attendance policy but failed to call
CIGNA within forty-eight hours to report the December 9 and 10 absences. Instead, Plaintiff
discussed the matter with Olga Terry in Kellogg’s Human Resources Department. On December
16, 2013, Plaintiff received a letter from CIGNA notifying him that his absences of November
20 and December 9, 10, and 11, 2013, were being denied for failure to provide the required
notice.21
Plaintiff went on leave on December 17, 2013, and remained off work until January 9,
2014. On January 10, 2014, the day after Plaintiff returned from leave, Kellogg issued Plaintiff a
Final Reprimand for accumulating 8.5 attendance points due to his December 9, 2013, absence.
The Disciplinary & Coaching Action Form issued to Plaintiff noted that, under the attendance
policy, a ninety day probation was warranted, but he was issued only a Final Reprimand.22
On January 10, 2014, Kellogg issued Plaintiff a ninety day probation notice for
accumulating 9.5 attendance points due to his December 10, 2013, absence. The Disciplinary &
Coaching Action Form noted that under the attendance policy, a Suspension Pending Discharge
Hearing was warranted, but he was only issued a ninety day probation.23

20

(Id. Nos. 39-42.)

21

(Id. Nos. 43-46.) Plaintiff acknowledges receiving the letter but points out that he notified
Olga Terry of his intent to use FMLA for December 9, 10, and 11, and he contends that he called
CIGNA but “did not get anyone.” (Pl’s Resp. to St’ment of Mat. Fcts p. 46, ECF No. 26-2.)
22

(Def’s St’ment of Mat. Fcts Nos. 47-49; ECF No. 22-1; Pl’s Resp. to St’ment of Mat. Fcts,
ECF No. 26-2.)

23

(Id. Nos. 50-51.) “Stacking” refers to issuing more than one discipline for a concurrent string
of infractions, thereby accelerating an employee through the progressive discipline process.
6

Kellogg also issued a notice of Suspension Pending Discharge Hearing for accumulating
10.5 attendance points due to his December 11, 2013, absence. On January 28, 2014, Kellogg
terminated Plaintiff's employment on the ground of excessive unexcused absences under the
attendance policy.24
Plaintiff, through his Union, grieved the termination as an issue of “stacking” disciplines.
The Union progressed the grievance through the third step of the grievance process but did not
advance the grievance to arbitration.25
Before November 20, 2013, Kellogg took no adverse employment action as a result of
Plaintiff’s taking FMLA leave. Plaintiff took FMLA leave in excess of ninety times over the
course of four and a half years without suffering any adverse action. Plaintiff failed to contact
CIGNA within the requisite forty-eight hours for his November 20, December 9, and 10
absences. 26
On December 16, 2013, Plaintiff properly requested and was approved for intermittent
FMLA leave. While out on that leave, Kellogg reached out to Plaintiff to encourage him to file
for continuous FMLA leave and short-term disability to ensure that he was adequately covered
and received payment while out on leave.27
Plaintiff’s supervisor at the time of his 2012 workers’ compensation claim had no
involvement or input into the decision to discharge Plaintiff since the supervisor was no longer

24

(Id. Nos. 52-53.)

25

(Id. Nos. 54-55.)

26

(Id. Nos. 60-61, 63.)

27

(Id. Nos. 67-68.)
7

with Kellogg in January 2014.28
In response to Defendant’s motion, Plaintiff has submitted the affidavit of Lashonia
Williams, chief shop steward at Kellogg’s Rossville facility.29 Ms. Williams assists employees
when they have been disciplined and was present at Plaintiff’s grievance hearing. Defendant
contends that Ms. Williams’ affidavit contains inadmissible hearsay and statements lacking
personal knowledge and should be disregarded. Specifically, Defendant objects to the following
statements by Ms. Williams: (1) “Olga Terry, the HR Generalist, testified that she told Mr.
Alexander on December 12 and 13 that she did not have time to help him after he told her that he
was having problems with his FMLA and needed help.”30 (2) “Because of my position, I know
specifically of employees that are still employed at Kellogg’s Rossville Plant that have more
points than Alexander had when he was terminated.”31 (3) “In 2013, the plant manager, John
Heilman, would hold town hall meetings where he would talk about the large amount of
employees who were using FMLA and the need to get the percentages down.”32 (4) “At
Kellogg’s, the rule is that you can miss 7 days and only get one point with a doctor's excuse.”33
(5) “Christopher Alexander is the only employee I have seen that has remained terminated using
the stacking of discipline before and after his termination.”34
28

(Id. No. 68.)

29

(Williams’ Affidavit, ECF No. 26-3.)

30

(Id. para. 6.)

31

(Id. para. 7.)

32

(Id. para. 9.)

33

(Id. para.10,)

34

(Id. para.12.)

8

Federal Rule of Civil Procedure 56(c)(4) requires an affidavit to be based on personal
knowledge:
An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated.35
Accordingly, a Rule 56 affidavit must fairly present evidence that will be admissible at trial, and
it is the burden of the party submitting the affidavits to demonstrate that the witness has personal
knowledge of the statements contained in the affidavit.36 The Court cannot rely on inadmissible
hearsay as a basis for a summary judgment decision.37
In the present case, the Court need not decide whether Ms. Williams’ statement that Ms.
Terry “testified” that she did not have time to help Plaintiff with his FMLA is admissible because
Plaintiff admitted in his deposition that Ms. Terry advised Plaintiff that she was “doing payroll”
and, thus, could not assist him at that time and that the assistance Ms. Terry provided on January
10, 2014 - bringing Plaintiff to her office so they could both call CIGNA - was typical of the
assistance Plaintiff regularly received from Human Resources with regard to his FMLA leave
requests.38 In ruling on Defendant’s motion for summary judgment, to the extent that it is
relevant, the Court will consider the fact that Ms. Terry did not have time to immediately assist
Plaintiff with his FMLA because she was processing payroll. At most, the statement is evidence
that Ms. Terry assisted Plaintiff with his FMLA when not involved with something more
35

Fed. R. Civ. P. 56(c)(4); see Mitchell v. Toledo Hosp., 964 F.2d 577, 584–85 (6th Cir. 1992)
(district court properly disregarded affidavit submitted in opposition to summary judgment that
was not based on personal knowledge and that did not set forth facts that would be admissible
into evidence).

36

Long v. Procter & Gamble Mfg. Co., 2005 WL 1631033, *1 (W.D. Tenn. July 8, 2005).

37

See Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (“Hearsay evidence ... must
be disregarded.”)
38

(Plaintiff Dep. pp. 39-40, 93. ECF No. 22-3.)
9

pressing.
As for Ms. Williams’ statement that she knows “specifically of employees that are still
employed at Kellogg’s Rossville Plant that have more points than Alexander had when he was
terminated,” the Court will not consider this statement because Plaintiff has not provided a
foundation for the statement. In order for inferences and/or opinions to be properly included in a
Rule 56 affidavit, they must be premised on firsthand observations or personal experience and
established by specific facts.39 An affidavit must lay a foundation as to why the affiant is
competent to testify to the matters stated therein.40 Without a proper foundation, the affidavit
may be disregarded.41
Although Ms. Williams states that she has personal knowledge of this fact because of her
position as union steward, she has not explained how her position made her privy to such
information nor has she specified how many employees are still employed who have more points
than Plaintiff, how many more points those employees have, to what extent those employees
were in a similar position to Plaintiff, and the names of any of those employees.
There is also no foundation for Ms. Williams’ statement that, at Kellogg, “the rule is that
you can miss 7 days and only get one point with a doctor's excuse.” The statement contains no
information to establish that Ms. Williams’ statement is based on personal knowledge or any
foundation as to the validity of “the rule.” Plaintiff has pointed to nothing in Kellogg’s written
attendance policy that suggests such a “rule.”
In her affidavit, Ms. Williams asserts that, in 2013, the plant manager, John Heilman,
39

See Buchanan v. City of Bolivar, 99 F.3d 1352, 1355 n. 2 (6th Cir. 1996); Drake v. Minn.
Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) (“Although ‘personal knowledge’ may
include inferences and opinions, those inferences must be substantiated by specific facts”).

40

Lewis v. Horace Mann Ins. Co., 410 F. Supp. 2d 640, 647 (N.D. Ohio 2005).

41

Id.
10

would hold town hall meetings where he would talk about the large amount of employees who
were using FMLA and the need to get the percentages down. Ms. Williams does not state that
she was at one of the town hall meetings or that she personally heard Heilman’s statements.
Even if she was at the meetings, Plaintiff has not explained how Ms. Williams’ recitation of
Heilman’s statements are not inadmissible hearsay. Hearsay is a statement “the declarant does
not make while testifying at the current trial or hearing[,] and ... [that] a party offers in evidence
to prove the truth of the matter asserted in the statement.”42 “[T]he burden of proving that the
statement fits squarely within a hearsay exception’ rests with the proponent of the hearsay
exception.”43 Plaintiff has not met that burden, and the Court will not consider the alleged
statements made by Heilman at town hall meetings.
Finally, Kellogg objects to the statements made by Ms. Williams about “stacking”
disciplinary actions. As noted by Kellogg, Plaintiff, through his Union, grieved his termination
as an issue of “stacking” discipline, but the Union did not advance the grievance to arbitration.44
To the extent that Plaintiff complains of stacking in and of itself, that issue was properly a
Union/employer issue that was handled through the internal grievance process. Plaintiff cannot
present stacking as a claim in this Court.
To the extent that Plaintiff attempts to provide evidence through Ms. Williams’ affidavit
that he was subjected to discipline that other employees were not subject to as part of his FMLA
retaliation claim, that attempt also fails.

Once again, personal knowledge and a proper

foundation are lacking for Ms. Williams’ statement. There is nothing in the affidavit to indicate
42

Fed. R. Evid. 801(c).

43

United States v. Arnold, 486 F.3d 177, 206 (6th Cir. 2007) (quoting United States v. Kendrick,
853 F.2d 492, 496 n. 3 (6th Cir. 1988)).
44

(Id. Nos. 54-55.)

11

that Ms. Williams was privy to the disciplinary records of all or even most of Kellogg’s other
employees. Additionally, the fact that Ms. Williams was “unaware” of any other employee
receiving stacked discipline does not mean that no other employee did not, in fact, receive such
discipline.
In summary, in reaching its decision, the Court will disregard the statements discussed
above that were made by Ms. Williams that lack personal knowledge and/or a proper foundation.
The statement concerning the help or lack thereof provided by Ms. Terry to Plaintiff will be
considered in context with Plaintiff’s deposition testimony explaining why Ms. Terry was unable
to help Plaintiff on the date in question.
Federal Rule for Civil Procedure 56(c)(1) requires that “a party asserting that a fact
cannot be or is genuinely disputed must support the assertion by: citing to particular parts of
materials in the record” and Local Rule 56.1(b)(3) of this Court requires that “each disputed fact
must be supported by specific citation to the record...supporting the contention that such fact is in
dispute.”

The “non-moving party’s failure to respond as required to the moving party’s

statement of material facts ‘shall indicate that the asserted facts are not disputed for purposes of
summary judgment.’”45
In the present case, Plaintiff cites to Ms. Williams’ affidavit to support his own statement
of material facts.46 Because the Court has found the statements in the affidavit that support
Plaintiff’s “facts” to be inadmissible, the Court will not consider those facts. The Court will also
not consider Ms. Williams’ statements to support Plaintiff’s denial of Defendant’s statement of
material facts.
45

Burke v. Regions Bank, 2013 WL 164260 at *2 (W.D. Tenn. Jan. 15, 2013) (citing L.R.
56.1(d)).

46

Pl’s Resp. to St’ment of Mat. Fcts Nos. 73- 81, ECF No. 26-2.)
12

Plaintiff has failed to cite to any portion of the record for his denial of the following
statements: “Plaintiff notified both the Company and CIGNA on eight of these occasions of his
request for intermittent leave in a manner consistent with the contact requirements contained in
the attendance policy.”

47 “

Plaintiff acknowledges that he did not experience any adverse

employment action as a result of this [neck] injury, or the corresponding workers’ compensation
claim and leave, prior to his discharge in January 2014.”48

“This attendance violation

[November 20, 2013] placed Plaintiff with 7.5 attendance points, sufficient for a Final
Reprimand under the attendance policy.”49

“Plaintiff admits that the Company’s notice

requirement for intermittent FMLA leave obligates the employee to call CIGNA, not the
Company, within 48 hours of the leave in order to substantiate the absence as intermittent FMLA
leave.”50 “Plaintiff admits that when he provided proper notification, he was approved for
FMLA leave in excess of 90 times since 2009.”51 “Plaintiff admits that on November 6, 2013, he
received a letter from CIGNA reminding him of the 48-hour call-in requirement.”52 “Plaintiff
admits that on December 16, 2013, days after having received the attendance point infractions
47

(Id. No. 26.)

48

(Id. Nos. 30 – 34.)

49

(Id. No. 41.)

50

(Id. No. 56.)

51

(Id. No. 57.)

52

(Id. No. 58.) Although Plaintiff now contends that the phone number stated in the letter “was
wrong” (id.), he acknowledged in his deposition that the number was correct and that he left a
voicemail. (Plaintiff Dep. p. 80, ECF No. 22-3.) A party cannot create a disputed issue of
material fact by filing an affidavit that contradicts the party's earlier deposition testimony. See
Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir. 1997) (“[A] party cannot create a
genuine issue of material fact by filing an affidavit, after a motion for summary judgment has
been made, that essentially contradicts his earlier deposition testimony.”); see also Reid v. Sears,
Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986).

13

for the November 20, December 9, 10 and 11, 2013 absences, Plaintiff properly requested, and
was once again approved for, intermittent FMLA leave.”53 “Plaintiff admits that neither the
Company nor the Union mentioned Plaintiff’s workers’ compensation leave or claims, at any
time, during Plaintiff’s discharge meeting.”54 Because Plaintiff failed to cite to the record to
dispute these statements, they will be accepted as true for the purpose of deciding this motion.
FMLA Claim
The FMLA allows qualifying employees to take up to twelve weeks of unpaid leave so
that they may recover from serious medical problems or so that they can attend to family
members who may suffer from such problems.55 “If an employer takes an employment action
based, in whole or in part, on the fact that the employee took FMLA-protected leave, the
employer has denied the employee a benefit to which he is entitled.”56 To thwart attempts by
employers to discriminate against employees for taking such leave by retaliating against them,
Congress made such actions a violation of the FMLA as follows:
Interference with rights
(1) Exercise of rights
It shall be unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under this subchapter.
(2) Discrimination
It shall be unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful by
this subchapter.57
53

(Pl’s Resp. to St’ment of Mat. Fcts No. 66, ECF No. 26-2.)

54

(Id. No. 69.)

55

See Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005) (citing 29 U.S.C. § 2615).

56

Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir. 2007).

57

29 U.S.C. § 2615(a).

14

Thus, the FMLA creates two types of claims: interference claims,58 in which an employee asserts
that his employer denied or otherwise interfered with his rights under the FMLA, and retaliation
claims, in which an employee asserts that his employer discriminated against him because he
engaged in activity protected by the FMLA. In the present case, Plaintiff has brought both
interference and retaliation claims.
FMLA Interference
“The issue [under the interference theory] is simply whether the employer provided its
employee the entitlements set forth in the FMLA - for example, a twelve week leave or
reinstatement after taking a medical leave.”59 To prevail on an interference claim, an employee
must prove that: (1) he was an eligible employee, (2) the defendant was an employer as defined
under the FMLA, (3) he was entitled to leave under the FMLA, (4) he gave the employer notice
of his intention to take leave, and (5) the employer denied the employee FMLA benefits to which
he was entitled.60
Defendant Kellogg does not dispute that Plaintiff has shown the first three elements of a
prima facie case. Instead, Kellogg contends that Plaintiff has failed to show the fourth element,
i.e., that he gave notice of his gave notice of his intent to take leave. 61 Kellogg argues that
58

The “interference” or “entitlement” theory is derived from the FMLA’s creation of
substantive rights. Arban v. W. Pub. Corp., 345 F.3d 390, 401 (6th Cir. 2003).
59

Id.; cf. Culpepper v. BlueCross BlueShield of Tenn., Inc., 321 Fed. App’x. 491, 496 (6th Cir.
2009) (“[The plaintiff’s] FMLA [interference] claim ... must fail. Culpepper received exactly
what her doctor ordered—six days of FMLA leave. No additional leave was authorized by the
Certification, and Culpepper has not shown that the five [unexcused] absences at issue were
taken for one of the reasons enumerated in the FMLA.”).
60

See Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005).

61

Plaintiff admits that, when he provided proper notification, he was approved for FMLA leave
in excess of ninety times since 2009. (Plaintiff Dep. p. 83, ECF No. 22-3.)
15

Plaintiff was not eligible for FMLA protection because he did not follow the established
procedures for requesting FMLA leave. Specifically, Kellogg asserts that, even though it is
undisputed that Plaintiff was familiar with Kellogg’s notice requirement that obligates the
employee to call CIGNA within forty-eight hours of intermittent FMLA leave and had been
reminded of that procedure in a letter dated November 6, 2013, Plaintiff failed to follow the
procedure for leave on November 20, December 9, 10, and 11, 2013.62
During his deposition, Plaintiff admitted that he did not call CIGNA as required by
Kellogg on November 20, December 9, and December 10.63 However, he argues that Kellogg
was put on notice that he had taken FMLA leave on December 9, 10 and 11, 2013, when he went
to Human Resources to talk to Ms. Terry, Kellogg’s Human Resources Generalist, on December
12. Plaintiff argues that approaching Ms. Terry about the letter from CIGNA denying his
November 20, 2013, absence constituted sufficient notice of intermittent leave. In support of his
argument, Plaintiff relies on Cavin v. Honda of Am. Mfg., Inc.,64 for the proposition that
“Employers cannot deny FMLA leave on the grounds that an employee failed to comply with
internal procedures - as long as ‘the employee gives timely verbal or other notice.’”65
Although Plaintiff is correct that prior to 2009 the Sixth Circuit did not allow employers
to deny FMLA relief for failure to comply with internal notice requirements, a 2009 amendment
of 29 C.F.R. § 825.302(d) “explicitly permits employers to condition FMLA-protected leave
62

(Id., pp. 43, 78, 83.)

63

“Q. On November 20th … you never called CIGNA. A. Correct.” (Id., p. 85.) “Q. You did
not call CIGNA to report the December 9th within 48 hours; correct? A. No.” (Id., p. 89.) “Q.
Okay. You did not call CIGNA to report the December 10th within 48 hours; correct? A. No.”
(Id., p. 90.)
64

346 F.3d 713, 723 (6th Cir. 2003).

65

(Pl’s Resp. Memo, p. 8, (quoting Cavin) ECF No. 26-1.)

16

upon an employee’s compliance with the employer’s usual notice and procedural requirements,
absent unusual circumstances.”66 The amended regulation provides that when “an employee does
not comply with the employer’s usual notice and procedural requirements, and no unusual
circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.”67
Therefore, “[i]f an employee does not comply with an employer’s usual and customary notice
and procedural requirements, then the FMLA does not give the employee the right to take
leave.”68
Here, it is undisputed that Plaintiff was aware of the requirements of Kellogg’s leave
policy but did not follow that policy on November 20, December 9, and December 10, 2013.
Nothing in the policy allowed Plaintiff to give notice of taking FMLA leave by talking to Ms.
Terry instead of calling CIGNA. Therefore, Plaintiff’s claim that Kellogg interfered with his
leave on those dates is without merit.
As for his December 11 absence, Plaintiff states that, on December 13, he called CIGNA
and left a voicemail.69 In support of his argument, Plaintiff has pointed to a call log for his
66

Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 614 (6th Cir. 2013). The question
before the Strouder Court was “whether an employer may impose and enforce its own internal
notice requirements, even if those requirements go beyond the bare minimum that would
generally be sufficient under the FMLA to constitute proper notice.” Id. The Court answered in
the affirmative based on the amended regulation. “Thus, to the extent Cavin held to the contrary,
its holding has been effectively abrogated by the subsequent revisions to § 825.302(d).” Id. at
614-15.
67

29 C.F.R. § 825.302(d).

68

Cundiff v. Lenawee Stamping Corp., 597 F. App’x 299, 300 (6th Cir. 2015). In the present
case, Plaintiff has pointed to no evidence demonstrating the type of “unusual circumstances” that
would have justified his failure to follow the requirements of Kellogg’s attendance policy. To
the extent that he had trouble calling CIGNA, he could have used the alternate website method of
providing notice. Plaintiff has not explained why he did not provide notice to CIGNA through its
website if, as he alleges, he was unable to talk with CIGNA.
69

(Plaintiff Dep. p. 92, ECF No. 22-3.)
17

phone plan purportedly demonstrating that he did, in fact, call on that date.70 As noted by
Kellogg, there is nothing on the call log that identifies the phone plan’s number, to whom the
number belonged, or any other identifying information. However, even if the Court were to
accept this document as true, Plaintiff testified that he did not actually speak with a CIGNA
representative until December 16, 201371 and, Plaintiff did not use CIGNA’s website to provide
notice when he failed to talk to a representative. Plaintiff further testified that, on January 10,
2014, after he returned from intermittent leave, Plaintiff and Ms. Terry contacted CIGNA, who
confirmed that they had no record of Plaintiff calling within the requisite period.72
Defendant points out that, even if Plaintiff had called in within the forty-eight hour call-in
period for his December 11 absence, he would still have accumulated 9.5 attendance points for
other absences, which is half a point more than what the attendance policy requires for
termination.

Plaintiff has responded that, even though Kellogg’s written policy allowed

termination for 9.5 points, he was given only a ninety day probation for accumulating those
points. The fact that Plaintiff did not receive an authorized discipline does not mean that he
could not have received that discipline. Therefore, Plaintiff’s argument fails.
Plaintiff has not established a prima facie case of FMLA interference because the
undisputed evidence shows that he did not provide proper notice of his intermittent leave for
November 20, December 9, 10, and 11, 2013.

70

(Affidavit, Pl’s Resp., p.13, ECF No. 26-4.)

71

(Plaintiff Dep. p. 96, ECF No. 22-3.)

72

(Id. p. 124.) Although CIGNA may have told Plaintiff to contact Kellogg’s HR Department
to contest the denial of his leave, there is nothing in the record showing that Plaintiff was told to
contact the HR Department, rather than CIGNA, to provide notice when he wanted to take leave.
Instead, it is undisputed that the policy required Plaintiff to notify Kellogg through
CALLEXPERT and to notify CIGNA by telephone or via CIGNA’s website.
18

Even if Plaintiff was able to establish a prima facie case, his FMLA interference claim
still fails. Kellogg had a legitimate, non-discriminatory reason for denying the November 20 and
December 9, 10, and 11 absences as FMLA intermittent leave because Plaintiff failed to notify
CIGNA of his absences within the requisite forty-eight hours on four occasions.73 Pursuant to its
attendance policy, Kellogg issued Plaintiff attendance points for those days and then disciplined
him accordingly.
Once Kellogg articulates a legitimate, nondiscriminatory reason, Plaintiff’s claim can
survive summary judgment only if he can show that Kellogg’s stated reason for the termination
was a pretext for unlawful discrimination.74 To carry his burden, Plaintiff must show that “the
proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged
conduct, or (3) was insufficient to warrant the challenged conduct.”75 Plaintiff has not offered
any admissible evidence that the proffered reason has no basis in fact, did not actually motive the
challenged conduct,76 or was insufficient to warrant the challenged conduct, other than the
argument rejected above by the Court that Plaintiff did, in fact, give proper notice.
Consequently, Kellogg is entitled to summary judgment on Plaintiff’s FMLA interference claim.
FMLA Retaliation
The FMLA makes it “unlawful for any employer to discharge or in any other manner
73

See Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012) (Adopting the burden-shifting
framework of McDonnell Douglas for FMLA interference claims: once a prima facie case has
been established, the burden shifts to the employer to prove it had a legitimate reason for taking
the action it did.); see also Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 282 (6th Cir. 2012).
74

Donald, 667 F.3d at 762.

75

Ritenour v. Tennessee Dep’t of Human Servs., 497 Fed. App’x 521, 532 (6th Cir. 2012).

76

The Court has found that Ms. Wiliams’ affidavit testimony about Heilman’s purported
statements at town hall meetings is inadmissible. Therefore, Plaintiff cannot rely on those
statements as evidence of pretext.

19

discriminate against any individual for opposing any practice made unlawful by this
subchapter.”77 Retaliation claims impose liability on employers who act against employees
specifically because those employees invoked their FMLA rights.78 However, the FMLA does
not prohibit an employer from terminating a person who has exercised rights under the FMLA,
provided that the reasons for termination are unrelated to the exercise of such rights.79 The issue
raised by a retaliation claim is “whether the employer took the adverse action because of a
prohibited reason or for a legitimate nondiscriminatory reason.”80
Plaintiff claims that Ms. Terry’s alleged inability to assist him on December 12, 2013, is
direct evidence of Defendant’s retaliatory behavior. However, as noted above, Plaintiff testified
that Ms. Terry told him that she was processing payroll and, thus, could not assist him at that
time. Plaintiff has not refuted Ms. Terry’s explanation to him as to why she could not help him at
that particular time. Moreover, Plaintiff testified that the assistance Ms. Terry provided on
January 10, 2014, i.e., bringing him to her office so they could both call CIGNA, was typical of
the assistance Plaintiff regularly received from Human Resources.81
Because Plaintiff has not presented any direct evidence of retaliation, the Court will

77

29 U.S.C. § 2615(a)(2).

78

See Kauffman v. Fed. Express Corp., 426 F.3d 880, 885 (7th Cir. 2005) (observing that the
retaliation theory applies when a company seeks to punish an employee “for exercising rights or
opposing an unlawful procedure”). See also Nolen v. FedEx TechConnect, Inc., 971 F. Supp. 2d
694, 702 (W.D. Tenn. 2013) (aff’d May 28, 2014) (“Under the [FMLA] retaliation theory, the
relevant inquiry is whether the employer took the adverse action because of a prohibited reason
or for a legitimate nondiscriminatory reason.”) .

79

See Joostberns v. United Parcel Services, Inc., 166 Fed. App’x 783 *5 - 6 (6th Cir. 2006).

80

Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006).

81

(Plaintiff Dep. pp. 39-40. 93, 98, ECF No. 22-3.)

20

analyze the retaliation claim under the McDonnell Douglas burden-shifting framework.82 To
establish a prima facie case for retaliation, a plaintiff must establish: (1) that he availed himself
of a protected right under the FMLA; (2) that he was adversely affected by an employment
decision; and (3) that a causal connection exists between the exercise of the protected right and
the adverse employment decision.83 Indirect evidence is sufficient to support a prima facie case
if the evidence is “sufficient to raise the inference that [the] protected activity was the likely
reason for the adverse [employment] action.”84
Plaintiff has not shown the first element of a prima facie case because he has not shown
that he availed himself of a protected right. As discussed above, Plaintiff did not take approved
FMLA leave on the dates in question. Taking unapproved leave was not a “protected right.”
Additionally, he has not shown the third element of a prima facie case - causation. To
establish the requisite causal connection, Plaintiff must produce sufficient evidence from which
an inference could be drawn that his protected activity was a but-for cause of his termination.85
82

Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007) (“An FMLA retaliation claim based
solely upon circumstantial evidence of unlawful conduct is evaluated according to the tripartite
burden-shifting framework set forth in McDonnell Douglas.”).
83

84

See Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001).
Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000).

85

University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2533 (2013);
see also Nguyen, 229 F.3d at 563 (to establish a causal connection the plaintiff must establish
that the adverse action would not have been taken had the plaintiff not engaged in protected
activity); Ozier v. RTM Enterprises of Georgia, Inc., 229 Fed. App’x 371, 377 (6th Cir. 2007)
(“Under federal law, in order to show a causal connection between the protected activity and the
adverse action—the fourth element of the prima facie case - Ozier must produce sufficient
evidence to support an inference that RTM took the adverse employment action because Ozier
had complained of discrimination.”). Although these are Title VII retaliation cases, the Sixth
Circuit has often relied on Title VII precedent in analyzing FMLA claims. See Hoffman v. Prof’l
Med Team, 394 F.3d 414, 422 (6th Cir. 2005) (observing that FMLA retaliation claims use the
same analytical framework as Title VII retaliation claims).

21

It is undisputed that Plaintiff took FMLA leave in excess of ninety times over the course
of four and a half years without suffering any adverse action. He never suffered an adverse
action when he provided proper notice of his intermittent FMLA leave.
Plaintiff contends that the close temporal proximity between the exercise of his FMLA
rights and his termination raises an issue of causation. However, Plaintiff did not exercise
protected rights on November 20, or December 9, 10, or 11 because he did not provide proper
notice. Moreover, only a few days later, on December 16, 2013, Plaintiff properly requested and
was approved for intermittent FMLA leave.86 While on that leave, Kellogg reached out to
Plaintiff to encourage him to file for continuous FMLA leave and short-term disability to ensure
that he was adequately covered.87 Kellogg’s actions undermine Plaintiff’s temporal proximity
argument that he was terminated for engaging in protected activity.
Plaintiff also contends that he was treated differently from similarly situated employees.
Evidence that the employer treated the plaintiff differently from similarly situated employees is
relevant to the issue of causation.88 Such evidence must show that the plaintiff was similarly
situated to the non-protected employees in all relevant respects.89 That is, those other employees
“must have dealt with the same supervisor, have been subject to the same standards and have
engaged in the same conduct without such differentiating or mitigating circumstances that would
distinguish their conduct or the employer’s treatment of them for it.”90

86

(Plaintiff Dep. p. 98, ECF No. 22-3.)

87

(Id,. pp. 98-99.)

88

See Rhynes-Hawkins v. Potter, 2009 WL 5031312 *12 (W.D. Tenn. Dec. 15, 2009).

89

See Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 522 (6th Cir. 2008).

90

Mitchell, 964 F.2d at 583.

22

As evidence of differential treatment, Plaintiff points to the inadmissible statements of
Ms. Williams91 and to his own deposition testimony. According to Plaintiff, “countless amounts
of people” had more points than he did but were not terminated.92 However, Plaintiff did not
review the personnel files of those employees and has no first hand and/or independent
knowledge of any of their attendance points.93

Plaintiff’s source for alleging that those

employees were similarly situated is conversations he had with co-workers.94 Plaintiff’s
testimony concerning statements from an uncorroborated source are insufficient to establish that
he was treated any differently from similarly situated employees.95 Accordingly, Plaintiff has
failed to establish a prima facie case of FMLA retaliation.
Even if Plaintiff had established a prima facie case, Kellogg has shown a legitimate, nondiscriminatory reason for Plaintiff’s termination.

Plaintiff failed to notify CIGNA of his

absences within the requisite forty-eight hours on four occasions, resulting in termination for
accumulating 10.5 attendance points, which was more than the 9 points required for termination
under Kellogg’s attendance policy.
Plaintiff has the burden to prove that Defendant’s stated reason for terminating him was
91

Even if Ms. Williams’ affidavit was admissible, she failed to name any employee who was
similarly situated to Plaintiff or provide any facts to support her conclusory allegation that other
employees had more attendance points than Plaintiff but were not terminated.
92

(Plaintiff Dep. p. 67, ECF No. 22-3.)

93

(Id., pp. 68-76.)

94

(Id., p. 76.)

95

See Coulter v. Deloitte Consulting LLC, 79 Fed. App’x 864 (6th Cir. 2003) (rejecting FMLA
retaliation claim on the grounds that plaintiff had offered “nothing to rebut [the employer’s]
factual assertions and articulated reasons for her discharge other than bare denials and her
subjective beliefs—both of which are insufficient basis upon which to vacate summary
judgment”); Rhynes-Hawkins, 2009 WL 5031312 at *12 (“the Court may not consider the
alleged statements of Plaintiff’s supervisors without some evidentiary support”).

23

pretext for discrimination.”96 To carry his burden, Plaintiff may show that (1) Kellogg’s stated
reasons had no basis in fact; (2) the stated reasons were not the actual reasons; or (3) the stated
reasons were insufficient to explain Kellogg’s actions.97 Plaintiff has failed to carry his burden.
Plaintiff points to the alleged temporal proximity of his discharge in January 2014 and the
days in November and December that he attempted to take as FMLA leave. “While temporal
proximity permits Plaintiff to make out a prima facie case of FMLA retaliation, temporal
proximity alone is insufficient to establish pretext…”98 “Moreover, the temporal proximity
argument is especially unconvincing [when] a plaintiff’s prima facie claim of retaliation is
otherwise weak,” as in the present case.99 Accordingly, Kellogg is entitled to summary judgment
on Plaintiff’s FMLA retaliation claim.
Workers’ Compensation Retaliation Claim
Plaintiff alleges that his termination in January 2014 was in retaliation for requesting
workers’ compensation benefits in June 2012 and receiving treatment for the injury through July
2013. Tennessee recognizes a cause of action for retaliatory discharge following an employee’s
claim for workers’ compensation100 and follows the McDonnell Douglas burden-shifting
framework when deciding such claims.101
96

Rhynes-Hawkins, 2009 WL 5031312 at *14.

97

Id. (citing Johnson v. Univ. of Cincinnati, 215 F.3d 561, 573 (6th Cir. 2000)).

98

Rhynes-Hawkins, 2009 WL 5031312 at *14; see also Heady v. U.S. Enrichment Corp., 246
Fed. App’x 766, 770-771 (6th Cir. 2005) (temporal proximity is not alone sufficient to establish
that an employer’s legitimate, non-discriminatory reason for discharge is a pretext).
99

Thompson v. Ameritech Advert. Servs., 40 Fed. App’x 90, 93 (6th Cir. 2002).

100

See Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 444 (Tenn. 1984).

101

Smith v. Bridgestone/Firestone, Inc., 2 S.W.3d 197, 200 (Tenn. Ct. App. 1999).

24

In order to make out a prima facie case for retaliatory discharge, a plaintiff must prove
that (1) he was an employee of the defendant at the time of the injury, (2) he made a claim
against the defendant for workers’ compensation benefits, (3) the defendant terminated his
employment, and (4) the claim for workers’ compensation benefits was a substantial factor in the
employer’s motivation to terminate his employment.102 The first three elements are not in dispute
in this case. Kellogg contends that Plaintiff has not established the “substantial factor” fourth
element.
The cause of action for retaliatory discharge is “a narrow exception to the employment at
will doctrine,” and the evidence must be compelling.103 In order to meet the substantial factor
requirement, a plaintiff must show either direct or “compelling circumstantial evidence” of a
causal connection between the workers’ compensation claim and the termination, not just the fact
that the latter followed the former.104 A plaintiff can present evidence of the following as
circumstantial evidence that may establish causation:
The employer’s knowledge of the compensation claim, the expression of a
negative attitude by the employer toward an employee’s injury, the employer’s
failure to adhere to established company policy, discriminatory treatment when
compared to similarly situated employees, sudden and marked changes in an
employee’s performance evaluations after a workers’ compensation claim, or
evidence tending to show that the stated reason for discharge was false.105
In the present case, Plaintiff points to a purported temporal connection between his June
2012 neck injury and his discharge in January 2014. Plaintiff was released to full duty in March
102

Anderson v. Standard Register Co., 857 S.W.2d 555, 558 (Tenn. 1993).

103

Abraham v. Cumberland-Swan, Inc., 1992 WL 207775 (Tenn. Ct. App. Aug. 28, 1992).

104

Frizzell v. Mohawk Indus., 2006 WL 1328773 (Tenn. Ct. App. May 15, 2006) (citing
Thomason v. Better-Bilt Aluminum Prods., Inc., 831 S.W.2d 291, 293 (Tenn. Ct. App. 1992)).

105

Newcomb v. Kohler Co., 222 S.W.3d 368, 391 (Tenn. Ct. App. 2006).

25

2013 and saw his physician for the last time in July 2013. However, Plaintiff has failed to
provide any evidence that anybody involved in the decision to terminate his employment had any
knowledge about his injury or the workers’ compensation claim he filed eighteen months prior to
his discharge. Plaintiff acknowledges that neither Kellogg nor the Union mentioned Plaintiff's
workers’ compensation leave or claims during Plaintiff’s discharge, and it is undisputed that
Plaintiff’s supervisor at the time of his 2012 workers’ compensation claim had no involvement or
input into the decision to discharge Plaintiff since the supervisor was no longer with Kellogg in
January 2014.106
Plaintiff has failed to establish a prima facie claim of workers’ compensation retaliation
because there is no evidence in the record that his workers’ compensation benefits were a
substantial factor in the decision to terminate his employment other than his own conclusory and
unsupported statements.107 Furthermore, even if Plaintiff had established a prima facie claim,
Kellogg has presented a legitimate non-retaliatory reason for Plaintiff’s termination, i.e., noncompliance with its attendance policy, and Plaintiff has not shown that Kellogg’s stated reason
was a pretext for retaliation. Accordingly, Kellogg is entitled to summary judgment on Plaintiff’s
workers’ compensation retaliatory discharge claim.
The undisputed evidence shows that Kellogg is entitled to judgment as a matter of law on
all of Plaintiff’s claims. Therefore, Kellogg’s motion for summary judgment (ECF No. 21) is
GRANTED.
IT IS SO ORDERED.
106

(Def’s St’ment of Mat. Fcts No. 86; ECF No. 22-1; Pl’s Resp. to St’ment of Mat. Fcts, ECF
No. 26-2.)

107

See Anderson, 857 S.W.2d at 558-59 (“Proof of discharge without evidence of a causal
relationship between the claim for benefits and the discharge does not present an issue for the
jury.”)
26

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: March 14, 2016.

27