                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0135n.06

                                         Case No. 18-3831

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                        FILED
                                                                                  Mar 19, 2019
NICK NJAIM,                                            )
                                                                              DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellant,                            )
                                                       )      ON APPEAL FROM THE UNITED
v.                                                     )      STATES DISTRICT COURT FOR
                                                       )      THE NORTHERN DISTRICT OF
FCA US LLC,                                            )      OHIO
                                                       )
       Defendant-Appellee.                             )


       BEFORE: BATCHELDER, ROGERS, and THAPAR, Circuit Judges.

       THAPAR, Circuit Judge. FCA fired Nick Njaim after he repeatedly violated FCA’s

attendance policy. So Njaim sued FCA, claiming that FCA actually fired him because he exercised

his Family and Medical Leave Act rights. The district court granted summary judgment for FCA.

We affirm.

                                                  I.

       FCA’s attendance policy requires employees to call in and report an absence or tardy at

least thirty minutes before their shift is scheduled to begin. Failure to call in on time results in an

employee receiving a half “occurrence” for a tardy and a full “occurrence” for an absence. An

“occurrence” essentially works like a demerit or strike. But unlike in baseball, FCA allows seven

strikes before it fires an employee.
Case No. 18-3831, Njaim v. FCA US LLC


       When Nick Njaim started working at FCA, he complied with this policy. Yet things

changed when Njaim began struggling with mental health and substance abuse problems. Njaim

was often tardy or absent because of these problems. He eventually sought treatment, taking paid

time off through FCA’s employer-sponsored leave program. And when Njaim returned to work,

he went on intermittent Family and Medical Leave Act (FMLA) leave. But his problems with

FCA’s attendance policy did not stop: Njaim violated the policy by missing work or calling in late

at least eighteen times, and he ultimately reached seven occurrences. Accordingly, FCA followed

its policy and fired him.

       Njaim sued FCA under the FMLA. The FMLA guarantees twelve weeks of unpaid leave

to an eligible employee if, among other things, the employee cannot perform his job because he

has “a serious health condition.” 29 U.S.C. § 2612(a)(1), (c); Brenneman v. MedCentral Health

Sys., 366 F.3d 412, 420 (6th Cir. 2004). Njaim argued that FCA violated this guarantee by

(1) interfering with his right to take FMLA leave and (2) retaliating against him for taking such

leave. The district court granted FCA summary judgment, and we review de novo. Brenneman,

366 F.3d at 417.

                                               II.

       Njaim argues that FCA interfered with his FMLA rights because it did not tell him that he

could use FMLA leave in 2014. Njaim claims that if he had known he could use FMLA leave and

then did so, FCA could not have given him occurrences for three of his absences in July. Nor

could FCA have given him a half occurrence for being tardy when he returned from leave in

August. Without those July and August occurrences, Njaim would not have reached the seventh

occurrence that resulted in his dismissal. We review each challenge in turn.




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Case No. 18-3831, Njaim v. FCA US LLC


       July absences. Njaim argues that if FCA had told him about his FMLA rights, it could not

have given him three occurrences in July. FCA does have a duty to inform its employees about

their right to take FMLA leave, but Njaim must show he triggered that duty by giving FCA notice

that he was requesting leave. See 29 C.F.R. §§ 825.300(b)(1), 825.302(c); Brenneman, 366 F.3d

at 421. Njaim’s notice did not have to expressly say “FMLA,” but it did need to convey enough

information to let FCA know that he was requesting “leave for a serious health condition that

rendered him unable to perform his job.” Brenneman, 366 F.3d at 421. The timing of this notice

is also critical. Njaim must prove that he gave this notice before his absences because FCA is not

required to designate absences as FMLA-covered leave after the fact. See 29 C.F.R. § 825.301(d)

(explaining that retroactive designation is permissive).

       But Njaim has not presented any evidence that he notified FCA of his request for FMLA-

qualifying leave before his July absences. As of July 24, 2014—the date of the third challenged

absence—all that FCA knew was that Njaim had been absent three days that week and called in

late each day. Njaim does not claim that he gave FCA notice during these calls, and his three

absences alone were insufficient to put them on notice. See Brenneman, 366 F.3d at 421, 423–24

(holding that notice was insufficient where the employee called in to report an absence and only

said he “wasn’t doing well and . . . wouldn’t be in [that day]”).

       In response, Njaim alleges that FCA had notice before his three July absences because he

requested leave for inpatient mental health and substance abuse treatment. But this notice came

too late. See Coble v. City of White House, 634 F.3d 865, 868–69 (6th Cir. 2011) (explaining that

the plaintiff’s version of the facts does not need to be accepted as true for summary judgment when

the record clearly contradicts it). The earliest that FCA could have learned of Njaim’s request for

leave was when Njaim began treatment, July 30, 2014—a week after his last July absence. The



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Case No. 18-3831, Njaim v. FCA US LLC


next day, FCA’s leave administrator wrote a letter to Njaim, confirming that it began processing

his request for employer-sponsored leave. While Njaim attempts to point to a doctor’s note in the

record to show FCA knew earlier than that date, this too was late. The doctor’s note says Njaim

was “temporarily disabled and unable to work” from July 21 through August 19. But that note

could not have been written until July 30 at the earliest—when Njaim began his treatment at the

substance abuse and mental health facility. And neither FCA nor its leave administrator even

learned of this note until August. Thus, Njaim cannot prove that he gave FCA notice of his intent

to take FMLA leave before any of the July absences.

       August tardy. Next, Njaim challenges the half occurrence FCA gave him when he was

tardy on August 23, the day he returned from employer-sponsored leave. He argues that if he had

been on FMLA leave rather than employer-sponsored leave, FCA could not have marked him as

tardy when he returned to work late on August 23 because employers cannot force employees to

work while on FMLA leave. But whatever kind of leave Njaim had taken, it was over on August

23. By that day, Njaim’s doctor had cleared him to come back to work, and Njaim decided to do

so. And once he came back from leave (either FMLA or employer-sponsored), Njaim had to

follow FCA’s reinstatement procedures to return to work. See 29 U.S.C. § 2614(a)(4); Hoge v.

Honda of Am. Mfg., Inc., 384 F.3d 238, 246–47 (6th Cir. 2004). FCA requires employees coming

back from medical leave to go through a medical-clearance process, which the employees must

finish “in time to start [their] shift.” R. 23-3, Pg. ID 153. But Njaim did not do so—he was late

again. Although Njaim’s shift began at 5:00 P.M., he did not start the medical-clearance process

until 5:18 P.M. So even if Njaim had been on FMLA leave, he would have been “tardy” under

FCA’s policy. Accordingly, Njaim cannot prove that FCA interfered with his FMLA rights on

August 23.



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Case No. 18-3831, Njaim v. FCA US LLC


         Thus, Njaim’s FMLA-interference claim fails because (1) for his July absences, he is

unable to prove that he gave FCA prior notice of his intention to take leave, and (2) for his August

tardy, FCA did not deny Njaim FMLA “benefits to which he was entitled” because Njaim did not

comply with FCA’s procedures for returning from leave. See Walton v. Ford Motor Co., 424 F.3d

481, 485 (6th Cir. 2005).

                                                III.

         Njaim also argues that the district court should not have granted FCA summary judgment

on his FMLA-retaliation claim. His retaliation claim stems from the absence that earned him his

seventh occurrence. While Njaim was on intermittent FMLA leave, he reached his seventh

occurrence when he called in late to report his absence on May 22, 2015. He argues that FCA

fired him, seven days later, in retaliation for exercising his right to take FMLA leave on May 22.

To prove FMLA retaliation, Njaim must show that his FMLA leave on May 22 was a “protected

activity” that was causally connected to FCA firing him. See Ferrari v. Ford Motor Co., 826 F.3d

885, 897 (6th Cir. 2016); see also Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 707 (6th Cir.

2008).

         Njaim cannot show “protected activity” because here, too, Njaim was late. FCA required

Njaim to comply with its call-in policy to take his intermittent FMLA leave during 2015,

something the law permitted FCA to do. 29 C.F.R. § 825.302(d); Srouder v. Dana Light Axle

Mfg., LLC, 725 F.3d 608, 614–15 (6th Cir. 2013). Under FCA’s call-in policy, FCA requires its

employees to call in to report an absence thirty minutes before the start of their shift. Instead of

calling in on time, thirty minutes before his shift, Njaim called in late, only nine minutes before

his shift. Accordingly, Njaim did not take FMLA leave on May 22, and FCA could not retaliate

against him for taking FMLA leave on that date. In a case with very similar facts, we explained



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Case No. 18-3831, Njaim v. FCA US LLC


that an employee cannot “satisfy the first element of a prima facie FMLA case” when he does not

follow the employer’s leave policies. Alexander v. Kellogg USA, Inc., 674 F. App’x 496, 501 (6th

Cir. 2017). The same result applies here.

          Njaim responds by arguing that the policy is different in practice than it is on the books.

He claims that FCA sometimes did not impose occurrences after employees failed to call in their

absences. But the attendance policy recognizes that not all absences will result in occurrences.

FCA imposes an occurrence only if the absence is caught on time. Njaim is then in the odd position

of criticizing FCA for holding itself up to the standard of being on time to defend his repeated

lateness.    In any event, merely pointing out that some absences have gone unpunished is

insufficient to re-define what the policy is or change the fact that Njaim violated it. Thus, Njaim’s

absence was not a “protected activity” under the FMLA because Njaim did not comply with FCA’s

policy.

          We affirm.




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