Employee fired for threatening supervisor after tardiness write-up failed to revive FMLA claims

An employee who was suspended and discharged after threatening a supervisor who gave him a write-up for a tardy that the employee claimed was covered by the FMLA, failed to revive his FMLA interference and retaliation claims. In an unpublished opinion, the Sixth Circuit determined that he failed to show that he was entitled to FMLA leave on the day in question or that the employer’s proffered reason for his discharge was pretextual. Accordingly, dismissal of his claims on summary judgment was affirmed.

Prior approved FMLA leave. The employee worked for a company that produced automotive parts. In 2006 and 2013, he was granted FMLA leave to care for his wife’s serious medical condition. He was also granted FMLA leave for his own work-related stress and anxiety in 2013 and 2014. His employer also repeatedly excused his absences and late arrivals as FMLA leave.

Claims late arrival excused as FMLA-related. The employee arrived at work “one or two minutes” late on July 29, 2014. He claimed that when he woke up he “probably” started having an anxiety attack and it “probably” continued while he got ready for and commuted to work. He told the on-duty supervisor that he “was late because of FMLA” and wrote “FMLA” on his timecard. However, he did not explain that he was late because of his anxiety and the on-duty supervisor did not say that his FMLA request was approved.

Disciplined for tardiness. Two days later, the employee was called into a meeting with his supervisor and a union steward and given a disciplinary write-up for his late arrival on July 29. He became visibly upset and shouted that the on-duty supervisor had excused his late arrival. His supervisor called the superintendent, who told the group to come with him to find the on-duty supervisor.

After the superintendent walked out of the room, the employee held up the write-up and shouted “I’m going to get you on this” to his supervisor. After repeating this statement a second time, he also stated that he was going to file a complaint with the Department of Labor. The three eventually caught up to the superintendent and told him about the shouting incident. He then tried to question the on-duty supervisor about the employee’s late arrival, but the employee kept screaming and yelling and would not let him answer.

Fired for threatening supervisor. The superintendent sent him to another part of the plant to “settle down” and then took statements from the supervisor and union steward, who both stated that the employee had threatened the supervisor. The company then suspended the employee pending an internal investigation, and eventually determined that he had threatened his supervisor in violation of the company’s anti-harassment policy. It terminated him without determining whether he should have been granted FMLA leave for his late arrival on July 29.

The employee brought the instant action, asserting claims against his employer under the FMLA and Michigan law. Specifically, he alleged that his employer interfered with his FMLA rights by disciplining him for his late arrival and then suspending and firing him for threatening his supervisor. The district court granted the employer’s motion for summary judgment on his FMLA claims and dismissed the state law claims without prejudice.

No interference since no leave entitlement. The employee was unable to revive his FMLA interference claim because, as an initial matter, he was required to show that he was entitled to FMLA leave for his late arrival and denied it nonetheless. His failure to make that showing was fatal to his claim. Notably, his employer never officially approved his FMLA request for that day.

When the employee objected to the disciplinary write-up two days later, his supervisors tried to gather more details. That investigation conceivably might have led the company to excuse his late arrival under the FMLA, but the employee himself aborted the process when he shouted at his supervisors and prevented the on-duty supervisor from answering questions. He also failed to otherwise assist with the company’s investigation. Thus, since the employer could have properly denied his leave request, he did not establish that he was entitled to FMLA leave.

No FMLA retaliation. The employee fared no better with his retaliation claim since there was no evidence demonstrating that his employer suspended and fired him because he invoked the FMLA when he arrived late on July 29. Rather, it proffered a perfectly valid reason for discharging him—his threatening of a supervisor in violation of company policy. Though he contended that the short time between his invocation of the FMLA and management’s decision to suspend and fire him indicated a retaliatory motive, temporal proximity cannot be the sole basis for finding pretext. Moreover, any inference based on this temporal proximity was negated by the fact that the employee threatened his supervisor during that same time. Accordingly, summary judgment was affirmed on this claim as well.

SOURCE: Levaine v. Tower Automotive Operations USA I, LLC, (CA-6), No. 16-1782, February 22, 2017.

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