                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0420n.06

                                           No. 09-6026                                 FILED
                                                                                    Jul 13, 2010
                          UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


HOWARD DEAN GIPSON,                                      )
                                                         )
       Plaintiff-Appellant,                              )
                                                         )
v.                                                       )
                                                         )   On Appeal from the United States
VOUGHT AIRCRAFT INDUSTRIES, INC.                         )   District Court for the Middle
                                                         )   District of Tennessee
       Defendant-Appellee.                               )
                                                         )
                                                         )


Before: BOGGS, ROGERS, and COOK, Circuit Judges.

       BOGGS, Circuit Judge. Plaintiff Howard Dean Gipson appeals the district court’s grant

of summary judgment to defendant Vought Aircraft Industries, Inc. with respect to Gipson’s claims

under the Family and Medical Leave Act. For the reasons described below, we affirm.

                                      I. BACKGROUND

A. Underlying Facts

       Plaintiff Howard Dean Gipson was formerly employed as a plant maintenance worker for

defendant Vought Aircraft Industries, Inc. in Nashville, Tennessee. Gipson also served as president

of the local union. In late 2004, Gipson underwent triple-bypass heart surgery. At that time, he

properly invoked the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601-2654,

to take medical leave, and he returned to work uneventfully.
No. 08-2532
Gipson v. Vought Aircraft Industries, Inc.

       In or about October 2005, Gipson was removed from his position as union president. In late

January 2006, while the removal was still under appeal, Gipson’s successor removed Gipson’s

personal effects from the union office in the Vought plant’s Human Resources department, placed

them in the adjacent lobby, and asked Gipson to retrieve them. He did not.

       On January 26, 2006, Gipson arrived at work feeling “decent.” At the beginning of Gipson’s

shift, his supervisor, Charlie King, instructed Gipson to remove his effects from the Human

Resources lobby. Half an hour later, when Gipson still not had complied, King repeated the

instruction; again, Gipson did not obey. He concedes that he did not feel ill at the time and could

have physically performed this task. King reported Gipson’s noncompliance to his own supervisor,

Ed Young.

       Subsequently, King asked Gipson a third time to remove his effects. This time, Gipson

replied that this was a union-related matter and stated that he would not comply without a written

order. King responded, “I’m giving you a direct order to go do it,” became red-faced and loud, and

warned that if Gipson did not comply, he would be subject to disciplinary action, up to and including

discharge. According to Gipson, King also said, “I’m not giving you a damn [written order].” At

this point, Gipson subjectively began to feel unwell; he alleges that King’s behavior exacerbated his

underlying heart condition. However, he did not complain about his health or otherwise indicate he

needed medical attention. Rather, he simply walked away.

       At some point thereafter, Gipson requested a pass to go to First Aid, which he alleges that

King denied. Gipson does not claim that he told King why he needed the pass; nor does he allege

that he mentioned any specific medical symptoms or that he voiced his belief that his discomfort was

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No. 08-2532
Gipson v. Vought Aircraft Industries, Inc.

connected to his underlying heart condition. He went to First Aid anyway, where a nurse checked

his blood pressure and found that it was “a little high, but nonetheless within normal limits.” Gipson

asked the nurse for permission to go home but was told that he had to obtain authorization from his

supervisor. Gipson does not claim that he told the nurse about any specific symptoms or that he

mentioned his heart condition.

       On the way back from First Aid, Gipson asked Robert Hinson, the safety committeeman for

the union, to call King and request a medical pass for Gipson; he allegedly told Hinson that he

intended to use the pass to go home and get his medicine or see his doctor. Gipson does not claim

that he told Hinson what medicine he required or what his particular ailment was.

       When Gipson returned to the maintenance department, he told King that he was in pain and

needed to go home to get his medication; once again, he does not claim to have described the pain

or identified the medicine. King said that Gipson could not leave “until we take care of business.”

At that point, King’s supervisor, Young, arrived. According to King and another employee who

witnessed the exchange, Young asked Gipson to turn in his employee badge and offered to give

Gipson a medical pass once he had done so.1 The employee witness testified that Gipson told King

and Young, “That’s not the proper procedures” and “That’s not the way you do it.” Gipson

acknowledges that he heard “something to that effect about a badge,” but did not comprehend that

he was being offered a medical pass because his headache kept him from thinking clearly.



       1
          King testified that the reason for this was to force Gipson to check in through the human
resources department upon returning to the plant, presumably to attend to his personal effects still
located there.

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Gipson v. Vought Aircraft Industries, Inc.

       At that point, Maxie Garrett, the plant human resources manager, arrived. Garrett told

Gipson to come with him and retrieve his personal effects from the human resources lobby, but

Gipson declined to do so, stating for the first time that he had a “very bad headache.” Gipson admits

that Garrett gave him a direct order to move his belongings and that he did not comply. Garrett then

turned to King and Young and asked if they had witnessed Gipson refuse a direct order; they replied

that they had. Garrett then terminated Gipson for insubordination.

       Thereafter, Gipson walked to his car (located approximately 20-25 minutes away on foot)

and drove himself to his doctor’s office in Lebanon, Tennessee (about 30 miles from the plant).

Once there, he did not receive immediate medical attention; rather, he made an appointment for a

date three weeks in the future. He then went home.

       Subsequently, Gipson grieved his termination under the procedures provided in the applicable

collective bargaining agreement. The grievance proceeded to arbitration, and a full hearing was held,

including examination and cross-examination of multiple witnesses. The arbitrator upheld the

termination as “premised upon ‘proper cause,’” finding, in relevant part:

       [Gipson] did violate Work Rule 23 on January 26, 2006, as is charged, and . . .
       committed the offense of insubordination in his repeated failures and refusals to
       obey the unambiguous “direct orders” of no fewer than three (3) different
       supervisory personnel.

                                               ***

       [T]he “direct orders” that were repeatedly given to [Gipson] were completely
       unambiguous that he must promptly retrieve his personal possessions from the
       human resources lobby. . . . [Gipson’s] sole retort – other than with respect to his
       alleged medical problem, a matter discussed below – was to the effect that
       Management should refrain from meddling in the internal affairs of the Local Union,
       inasmuch as his personal belongings had apparently been ejected from the Local

                                                -4-
No. 08-2532
Gipson v. Vought Aircraft Industries, Inc.

       Union’s offices following a change of command, and while that matter was still
       being contested. While [Gipson’s] reluctance to [comply] may have been the result
       of his unwillingness to appear to have conceded the propriety of his removal from his
       Union position, such a sentiment did not entitle him to disobey the clear directives
       of the Employer.

                                                ***

       The undersigned Arbitrator is keenly aware of the risks associated with heart disease,
       having lost his own father during a triple bypass procedure in 2001. Such a
       sympathetic predisposition, however, should not be confused with naivete. [Gipson]
       himself expressed no physical discomfort to anyone until, suspiciously, the moment
       when he was first [sic] ordered to retrieve his effects. Plainly, from his commentary
       to [a co-worker] that the matter was a Local Union issue and “none of . . . [the
       Company’s] concern,” [Gipson] was simply nettled that he was being forced to
       remove his belongings, an unwillingness which entirely explains his coincident,
       subjective and sudden onset of claimed physical distress. Any lingering doubt as to
       his possible veracity in this respect was completely resolved by the testimony of [the
       nurse], who related that [Gipson] displayed and expressed irritation with his
       supervisor, that she nevertheless took [his] blood pressure, and that the same seemed
       to be only slightly elevated. The totality of this evidence, in the opinion of the
       Arbitrator, inescapably yields the conclusion that [Gipson] was shamming a physical
       ailment [on] January 26, 2006, so as to evade the command to perform a task which
       he found to be distasteful.

B. Procedural History

       Gipson filed a complaint in Tennessee state court on January 17, 2007, alleging that Vought

violated the FMLA by refusing Gipson’s request for medical leave and terminating him in retaliation

for exercising his rights under the FMLA. Vought removed the complaint to federal court.

       During discovery, Gipson’s Federal Rule of Civil Procedure 26(a)(1) initial disclosures

identified “Benny Riggins” or “Wiggins” as an individual likely to have unspecified discoverable

knowledge or information. In response to Vought’s interrogatory asking Gipson to give a description

of this relevant knowledge, Gipson replied only that this individual “told [Gipson] to go to first aid


                                                -5-
No. 08-2532
Gipson v. Vought Aircraft Industries, Inc.

if he was suffering chest pains” (emphasis added). Gipson did not identify Riggins/Wiggins in

response to Vought’s subsequent interrogatories asking Gipson (1) to “identify any and all witnesses

to each [of Vought’s alleged wrongful] ‘act[s]’ or ‘omission[s]’” and (2) to “set forth in detail . . .

any and all witnesses to [Gipson’s claimed] exercise of rights [under the FMLA].” Vought did not

seek to depose this individual. Discovery closed on December 12, 2007.

       Thereafter, Vought filed a motion for summary judgment. Gipson accompanied his response

with an affidavit sworn by Benny Wigginton, a secretary in Vought’s maintenance department.

(Wigginton is clearly the “Benny Riggins”/“Wiggins” identified in Gipson’s initial disclosure and

interrogatory response.) The Wigginton affidavit bore a stamp indicating that it had been notarized

over two months prior to the close of discovery. In the affidavit, Wigginton averred, in relevant part:

       4. During the course of my employment I was sitting at my desk working when I saw
       Howard Dean Gipson. I heard Mr. Gipson say that his chest hurt and he was not
       feeling well. I told him to go to the First Aid Department.

                                                ***

       8. [Later,] Mr. Gipson stated [to Maxie Garrett] that he could not [pick up his effects
       from the human resources department] now because he wanted to get his medicine.
       He was taking Nitroglycerin to ease the pain and needed to get them.

       9. Mr. Gipson asked if he could go get his medicine first and Mr. Garrett said no, to
       go and get the papers right then.

       Vought moved to strike the Wigginton affidavit pursuant to Federal Rule of Civil Procedure

37. On October 17, 2008, the district court held that Rule 37 sanctions were warranted because

Gipson had not disclosed during discovery the extent of Wigginton’s purported knowledge; it

therefore ordered stricken from the record the portions of the Wigginton affidavit that went beyond


                                                 -6-
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Gipson v. Vought Aircraft Industries, Inc.

Gipson’s interrogatory responses (i.e., everything but the statement that Wigginton had “told

[Gipson] to go to first aid if he was suffering chest pains”).

        On July 29, 2009, the district court granted summary judgment to Vought. Gipson timely

filed a notice of appeal from the order granting summary judgment; the notice stated that Gipson was

appealing “the Order of [the district court] dated July 29, 2009, wherein Judge Nixon granted the

defendant’s motion for summary judgment and dismissed plaintiff’s claims.” It did not mention the

October 17, 2008 order striking portions of the Wigginton affidavit.

                                  II. STANDARD OF REVIEW

        We review for abuse of discretion a district court’s decision to exclude evidence under Rule

37 as a sanction for discovery noncompliance. River City Capital, L.P. v. Bd. of County Comm’rs,

Clermont County, 491 F.3d 301, 309 (6th Cir. 2007). We review a district court’s grant of summary

judgment de novo. Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th Cir. 2009). “Summary

judgment is appropriate 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 movant is entitled to a judgment as a matter of law.’” Moses v. Providence Hosp. &

Med. Ctrs., Inc., 561 F.3d 573, 578 (6th Cir. 2009) (quoting Fed. R. Civ. P. 56(c)). In reviewing the

district court’s decision, we view all evidence in the light most favorable to, and make all reasonable

inferences in favor of, the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).




                                                 -7-
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Gipson v. Vought Aircraft Industries, Inc.

                                         III. ANALYSIS

A. The District Court’s Decision To Strike the Wigginton Affidavit

1. Do We Have Jurisdiction?

       Gipson argues that “[the district court’s] striking of the essential parts of the Wigginton

Affidavit was . . . [an] abuse[] of discretion.” Appellant Br. at 9. In response, Vought argues that

we lack jurisdiction over this issue because Gipson did not specifically mention the district court’s

order striking those parts of the Wigginton affidavit in his notice of appeal.

       An appellant’s notice of appeal must, among other things, “designate the judgment, order,

or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). This rule “imposes jurisdictional

requirements that this court cannot waive,” Martin v. Gen. Elec. Co., 187 F. App’x 553, 557 (6th Cir.

2006), and we have stated that “strict obedience to Rule 3(c) is warranted,”United States v. Glover,

242 F.3d 333, 335 (6th Cir. 2001). At the same time, it is “well settled that an appeal from a final

judgment draws into question all prior non-final rulings and orders” on which the final judgment

depends. Westerfield v. United States, No. 08-4458, 2010 WL 653535, at *4 (6th Cir. Feb. 24, 2010)

(quoting McLaurin v. Fischer, 768 F.2d 98, 102 (6th Cir. 1985)); see also Greer v. St. Louis Reg’l

Med. Ctr., 258 F.3d 843, 846 (8th Cir. 2001) (“Ordinarily, a notice of appeal that specifies the final

judgment in a case should be understood to bring up for review all of the previous rulings and orders

that led up to and served as a predicate for that final judgment.”); Pacitti v. Macy’s, 193 F.3d 766,

776 (3d Cir. 1999) (holding that notice of appeal mentioning only order granting summary judgment

also authorizes appellate review of earlier discovery order); 16A Charles Alan Wright & Arthur R.

Miller, Federal Practice & Procedure (4th ed.) § 3949.4 (“A notice of appeal that names the final

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Gipson v. Vought Aircraft Industries, Inc.

judgment suffices to support review of all earlier orders that merge in the final judgment under the

general rule that appeal from a final judgment supports review of all earlier interlocutory orders.”).

       Vought relies on two cases, United States v. Glover and Martin v. General Electric Co.,

where we found that we lacked jurisdiction over orders not explicitly mentioned in a notice of

appeal. However, those cases are distinguishable.

       In Glover, after the defendant was convicted of failure to pay child support, the district court

ruled for the defendant on a contested aspect of the restitution determination. Following entry of

final judgment, the government filed a notice of appeal stating only that the government “hereby

request [sic] a Protective Notice of Appeal in this Matter.” 242 F.3d at 334. We held that such a

vague statement, which “provide[d] not even a clue as to what the Government [sought] on appeal,”

did not give us jurisdiction to hear the government’s appeal of the restitution ruling. Id. at 336-37

(stating that “no amount of liberal construction of the Rules can show that the Government’s notice

of appeal complied with the requirements of Rule 3(c)”). Here, unlike in Glover, Gipson did not

leave his notice of appeal entirely open-ended; rather, he specifically identified the district court’s

final order granting summary judgment, which clearly authorizes us to review that final judgment.

The “well settled” doctrine that appeal from a final judgment embraces all related non-final orders

gives us jurisdiction over the remainder of Gipson’s appeal.

       In Martin, the district court had granted summary judgment to the defendant and, in a later

order, imposed monetary sanctions on the plaintiff. The plaintiff’s notice of appeal was filed

between the issuance of the two orders; as such, while it mentioned the former order, it obviously

did not mention the latter, which did not exist when the notice of appeal was filed. On appeal, the

                                                 -9-
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Gipson v. Vought Aircraft Industries, Inc.

plaintiff argued that the district court had erred both in granting summary judgment and in imposing

sanctions. We held that “Martin ha[d] not perfected her appeal from the district court’s order

awarding sanctions” because she had “fail[ed] either to identify the motion for sanctions in her notice

of appeal or to file a new notice of appeal . . . .” 187 F. App’x at 557 (citation omitted). In this case,

on the other hand, the order striking the Wigginton affidavit is a “prior non-final ruling[]” in

existence at the time the notice of appeal was filed. Westerfield, 2010 WL 653535, at *4 (emphasis

added). Moreover, the discovery order at issue in this case, unlike the monetary sanctions order in

Martin, “served as a predicate for [the] final judgment.” Greer, 258 F.3d at 846. Accordingly,

Martin is equally inapplicable to the situation at hand.

        We therefore have jurisdiction to consider Gipson’s assertion that the district court abused

its discretion by striking most of the Wigginton affidavit.

2. Propriety of the District Court’s Order

        Under Rule 26, “a party must, without awaiting a discovery request, provide to the other

parties . . . the name . . . of each individual likely to have discoverable information – along with the

subjects of that information – that the disclosing party may use to support its claims or

defenses . . . .” Fed. R. Civ. P. 26(a)(1)(A)(i) (emphasis added). Further, “[a] party who has made

a disclosure under Rule 26(a) . . . or who has responded to an interrogatory . . . must supplement . . .

its disclosure or response . . . in a timely manner if the party learns that in some material respect the

disclosure or response is incomplete or incorrect . . . .” Fed. R. Civ. P. 26(e)(1). “If a party fails to

provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that



                                                  - 10 -
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Gipson v. Vought Aircraft Industries, Inc.

information . . . to supply evidence on a motion . . . unless the failure was substantially justified or

is harmless.” Fed. R. Civ. P. 37(c)(1).

        Gipson’s initial disclosures simply stated that Wigginton (a.k.a. “Riggins”/“Wiggins”) “told

[Gipson] to go to first aid if he was suffering chest pains” (emphasis added). Gipson never

supplemented this disclosure to inform Vought that Wigginton had heard Gipson inform anyone in

his chain of command that he was in fact suffering chest pains or that he was taking nitroglycerin –

even though such information would clearly be relevant to Gipson’s claims. Moreover, Gipson

never supplemented his interrogatory responses, which failed to mention Wigginton altogether in

response to Vought’s request (1) to “identify any and all witnesses to each [of Vought’s alleged

wrongful] ‘act[s]’ or ‘omission[s]’” and (2) to “set forth in detail . . . any and all witnesses to

[Gipson’s claimed] exercise of rights [under the FMLA].” Accordingly, the district court correctly

found that Gipson “fail[ed] to provide information . . . as required by Rule 26(a) or (e) . . . .”

        Moreover, Gipson’s failure was neither “substantially justified” nor “harmless.” Because the

Wigginton affidavit apparently existed months before the close of discovery, Gipson was already

aware of the extent of Wigginton’s purported knowledge at that time; therefore, there is no evident

justification for his decision to omit it. And Gipson’s omission harmed Vought’s trial preparation,

because “even if [Vought] might otherwise have been prudent to investigate [Wigginton]’s

knowledge,” Gipson’s omission certainly “suggested to them that such investigation might have been

a waste of resources.” Caudell v. City of Loveland, 226 F. App’x 479, 481 (6th Cir. 2007). While

discovery could theoretically have been reopened to allow Vought to depose Wigginton, the “delay”



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Gipson v. Vought Aircraft Industries, Inc.

that this would have caused is an “additional harm” stemming from Gipson’s totally unjustified

omission. Id. at 482.

        The district court therefore did not abuse its discretion in striking portions of the Wigginton

affidavit.

B. Gipson’s FMLA Claims

        The FMLA affords an eligible employee up to twelve weeks of leave within a twelve-month

period when the employee suffers from “a serious health condition that makes the employee unable

to perform the functions of . . . [his] position.” 29 U.S.C. § 2612(a)(1)(D) (emphases added).2 A

“serious health condition” is defined as “an illness, injury, impairment, or physical or mental

condition that involves . . . (A) inpatient care in a hospital, hospice, or residential medical care

facility or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11); see also 29

C.F.R. §§ 825.114, 825.115 (defining “inpatient care in a hospital, hospice, or residential medical

care facility” and “continuing treatment by a health care provider”).

        Under the FMLA, it is “unlawful for any employer to interfere with, restrain, or deny the

exercise of or the attempt to exercise [the] right” to such leave. 29 U.S.C. § 2615(a)(1). It is also

“unlawful for any employer to discharge or in any other manner discriminate against any individual

for opposing any practice made unlawful” by the FMLA. Id. § 2615(a)(2). Gipson alleges that

Vought violated both of these provisions. We address them in turn.


        2
         Congress amended certain relevant sections of the FMLA as of January 2009. The district
court decided Vought’s motion under the statutory language in effect at the time the underlying
events took place. On appeal, neither party disputes that this was proper. Consequently, we do the
same.

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Gipson v. Vought Aircraft Industries, Inc.

1. Unlawful Denial of FMLA Leave

        For an FMLA denial-of-leave claim to lie, the employee must have given sufficient notice

to apprise the employer that his request for leave was FMLA-qualifying. Brenneman v. MedCentral

Health Sys., 366 F.3d 412, 421 (6th Cir. 2004). While “the eligible employee need not expressly

mention the FMLA as the source of his right to request such leave,” ibid., “the employee must give

‘the employer enough information for the employer to reasonably conclude that an event described

in FMLA § [2612(a)(1)(D)] has occurred,’” Walton v. Ford Motor Co., 424 F.3d 481, 486 (6th Cir.

2005) (quoting Hammon v. DHL Airways, Inc., 165 F.3d 441, 451 (6th Cir. 1999)). In other words,

“the information that the employee conveyed to the employer [must have been] reasonably adequate

to apprise the employer of the employee’s request to take leave for a serious health condition that

rendered him unable to perform his job.” Brenneman, 366 F.3d at 421 (emphases added); see also

Walton, 424 F.3d at 486.

        Here, the district court correctly held that no reasonable jury could conclude that Gipson gave

sufficient notice to invoke his rights under the FMLA.            The record discloses that Gipson

(1) requested a pass to go to the infirmary from Charlie King; (2) had his blood pressure checked,

with a result that was “a little high, but nonetheless within normal limits”; (3) told Robert Hinson

that he wanted a pass to go home and get his medicine or see his doctor; (4) told King that he was

in pain and needed to go home to get his medicine; and (5) told Maxie Garrett that he had a “very

bad headache.” Even giving Gipson the benefit of the doubt, these facts would not reasonably

inform Vought that Gipson was presently suffering from “an illness, injury, impairment, or physical

or mental condition that involves . . . (A) inpatient care in a hospital, hospice, or residential medical

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No. 08-2532
Gipson v. Vought Aircraft Industries, Inc.

care facility or (B) continuing treatment by a health care provider” as defined in the applicable

regulations. 29 U.S.C. § 2611(11). See, e.g., Walton, 424 F.3d at 486 (employee’s statements that

he was “sick” and had scheduled a doctor’s appointment not sufficient notice); Phillips v. Quebecor

World RAI, Inc., 450 F.3d 308, 311-12 (7th Cir. 2006) (employee’s statement that she was “sick” and

had been seen at health center not sufficient notice); Satterfield v. Wal-Mart Stores, Inc., 135 F.3d

973, 980 (5th Cir. 1998) (employee’s mother’s statements that employee “was sick,” “was having

a lot of pain in her side,” and would not be able to work not sufficient notice); cf. Cavin v. Honda

of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003) (holding that notice was sufficient where

employee informed employer that he had been in motorcycle accident which required hospitalization

and that he would be unable to perform his job).3

       Gipson responds that this case is distinguishable because “Vought knew that . . . Gipson had

undergone triple bypass heart surgery less than two years before the firing.” Appellant’s Br. at 12.

This argument, however, is unavailing. While Gipson indeed exercised FMLA leave in connection

with the surgery itself, the record contains no evidence that Vought was on notice that Gipson had

ongoing heart problems for which he was receiving continuing treatment. Therefore, Vought cannot

be charged with knowledge that Gipson’s headache and other unspecified pain was related to such



       3
          Gipson’s statement that he needed his “medicine” does not change this result. Other than
the reference to nitroglycerin in the stricken Wigginton affidavit, there is no evidence that Gipson
mentioned what medicine he needed, and even the Wigginton affidavit is ambiguous as to whether
Gipson actually stated at the time that he was taking nitroglycerin. Because “the taking of
over-the-counter medications . . . is not, by itself, sufficient to constitute a regimen of continuing
treatment for purposes of FMLA leave,” 29 C.F.R. § 825.113(c), a bare reference to “medicine”
cannot constitute sufficient notice.

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Gipson v. Vought Aircraft Industries, Inc.

a condition.4 See Brenneman, 366 F.3d at 424 n.9 (rejecting argument that, because “defendant knew

the plaintiff has diabetes and that plaintiff had FMLA-qualifying, diabetes-related absences [in the

past],” material issue of fact existed as to whether employer had sufficient notice that later absence

was also diabetes-related, where plaintiff stated only that he “wasn’t doing well” that day); Layman

v. C & D Techs., Inc., No. 1:03-cv-275, 2004 U.S. Dist. LEXIS 27696, at *36 (E.D. Tenn. Nov. 4,

2004) (“That C & D was aware of Layman’s prior medical condition [for which she used FMLA

leave] is inconsequential: Layman still failed to provide C & D any information from which it could

conclude that the May 2002 illness [at issue] was related to her previous condition.”).

       Because Gipson did not, as a matter of law, give the requisite notice to trigger his right to

leave under the FMLA, Vought did not “interfere with, restrain, or deny the exercise of or the

attempt to exercise [his] right” to such leave.5

2. Unlawful Retaliation Under FMLA

       To establish a claim of unlawful retaliation under the FMLA, a plaintiff must show (1) that

“he availed himself of a protected right under the FMLA by notifying [his employer] of his intent

to take leave,” (2) that “he was adversely affected by an employment decision . . . ,” and (3) “a

causal connection between his exercise of a right under the FMLA and the adverse employment



       4
          The only evidence that Gipson had actually claimed to be experiencing chest pain appeared
in the stricken portion of the Wigginton affidavit.
       5
         The district court also held that Vought did not unlawfully deny Gipson FMLA leave
because Young offered to give Gipson a medical pass once he had turned in his employee badge.
Because we need not reach this alternative justification for affirmance, we do not address it.


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Gipson v. Vought Aircraft Industries, Inc.

decision.” Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001). Gipson’s

retaliation claim must fail because, as we have held, Gipson did not “avail himself of a protected

right under the FMLA” by giving notice sufficient to apprise Vought that he was suffering from an

FMLA-qualifying condition. Cf. Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276,

292 (2d Cir. 1998) (stating that, in Title VII retaliation context, no retaliation claim will lie unless

employer “understood, or could reasonably have understood, that the plaintiff’s opposition was

directed at conduct prohibited by Title VII.” (emphasis added)).

        Furthermore, even if Gipson had properly invoked his FMLA rights, no reasonable jury could

find that there was a causal connection between that exercise of rights and his termination. As we

have stated, an employee may not insulate himself from a pending dismissal by opportunistically

invoking the FMLA. See Moorer v. Baptist Mem. Health Care Sys., 398 F.3d 469, 488-89 (6th Cir.

2005). Where, as here, the employer claims that “the dismissal would have occurred regardless of

the employee’s request for . . . FMLA leave,” the employee must convince the trier of fact otherwise.

Id. (quoting Arban v. West Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003)).

        Gipson cannot make such a showing on this record. He admits in his own brief that he “flatly

disobeyed [the] direct order” of his superiors, which is indisputably grounds for termination.

Appellant’s Br. at 12-13. The arbitrator found that Gipson “did violate Work Rule 23 . . . [by]

committ[ing] the offense of insubordination” and concluded that “the termination was premised upon

‘proper cause.’”6 In particular, Gipson did not comply with King’s first three requests to move his


        6
           Gipson asserts that the district court erred by citing the arbitrator’s findings in support of
its grant of summary judgment, since, as a categorical matter, “arbitration proceedings and civil trials

                                                 - 16 -
No. 08-2532
Gipson v. Vought Aircraft Industries, Inc.

personal effects, all of which were issued before Gipson had voiced his medical concerns to anyone.

On the third such occasion, King had stated that he was “giving [Gipson] a direct order to go do it”

and threatened Gipson with termination if he did not comply. Although it was not until after Gipson

had requested a medical pass that Garrett actually issued that termination, “the ‘wheels of

termination’ had already been put into motion before [Gipson] requested leave.” Kennebrew v. New

York City Hous. Auth., No. 01-CIV-1654, 2002 WL 265120, at *20 (S.D.N.Y. Feb. 26, 2002)

(quoting Tuberville v. Personal Fin. Corp., No. 3:95CV150, 1996 WL 407571, at *3 (N.D. Miss.

June 5, 1996)). A reasonable jury could not conclude that it was Gipson’s request for a medical pass,

rather than Gipson’s continuing insubordination, that provoked his firing.

                                         CONCLUSION

       The district court’s orders striking portions of the Wigginton affidavit and granting summary

judgment to Vought are AFFIRMED.




are simply too different.” Appellant’s Br. at 14. This misstates the law; a district court may indeed
admit arbitration findings as evidence under certain circumstances. See Nance v. Goodyear Tire &
Rubber Co., 527 F.3d 539, 549 (6th Cir. 2008). In any event, even if the arbitrator’s findings were
disregarded entirely, the record would still support affirmance.

                                               - 17 -
