               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 12a0506n.06

                                          No. 10-4396
                                                                                       FILED
                         UNITED STATES COURT OF APPEALS                           May 16, 2012
                              FOR THE SIXTH CIRCUIT                         LEONARD GREEN, Clerk
DALE KRUMHEUER,

       Plaintiff-Appellant,

v.                                                  ON APPEAL FROM THE UNITED
                                                    STATES DISTRICT COURT FOR THE
GAB ROBINS NORTH AMERICA, INC.,                     NORTHERN DISTRICT OF OHIO

       Defendant-Appellee.

                                              /




BEFORE:       CLAY and GIBBONS, Circuit Judges; KORMAN, District Judge.*

       CLAY, Circuit Judge. Plaintiff Dale Krumheuer appeals an order of the district court

granting summary judgment to Defendant GAB Robins North America, Inc. (“GAB Robins”) on his

claim under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Plaintiff alleged

that he was discharged by Defendant in retaliation for exercising his rights under the FMLA. For

the reasons set forth below, we AFFIRM the district court’s order.

                                       BACKGROUND

       Defendant is an insurance appraisal provider that provides loss adjusting and claims

administration services to insurance carriers and self-insured entities. Plaintiff was formerly


       *
      The Honorable Edward R. Korman, United States District Judge for the Eastern District of
New York, sitting by designation.
employed as a claims adjuster at the Cleveland, Ohio office of GAB Robins from the Fall of 2002

until his discharge in February 2007. Beginning in July 2006, Plaintiff’s work performance declined

and Plaintiff’s supervisors, Gary Gottschalk (“Gottschalk”) and Lynn Kral (“Kral”), documented

several issues with Plaintiff’s performance, including his failure to respond to telephone and email

messages regarding payment requests and his failure to adhere to the company’s attendance policy.

On October 9, 2006, Kral issued Plaintiff a written warning that stated the following:

       This memo is to inform you that as of today, you have overdue diary from June 31,
       2006 through October 9, 2006. You have been notified three prior times of the
       overdue diary, especially from July, and you have assured me that it would be done.
       To date, this has not been completed.
       ....
       There are many times when you just do not show up to work, and we have no idea
       where you are until you either call in later that day or just show up.

(R.13–2: Krumheuer Dep. 85–86.) In addition, the memo indicated that Plaintiff failed to update

and regularly submit expense reports to his supervisors and the memo stated that Plaintiff’s expense

reports from August and September remained outstanding. Kral ended the memo by stating that

“failure to comply with the above may result in additional disciplinary action, which may include

termination of employment.” (Id. 87.)

       Plaintiff stated in his deposition that on Saturday, October 7, 2006, he began to experience

symptoms of a heart attack. On October 9, 2006, Plaintiff called GAB Robins and spoke with one

of the company’s clerks. Plaintiff advised the clerk that he was going to the hospital and requested

a medical leave of absence until December 1, 2006, which was the date his short-term disability

insurance expired. Defendant granted Plaintiff’s request. Plaintiff was later diagnosed with coronary

heart disease. Plaintiff stated that this was the first time he requested medical leave from Defendant.

Plaintiff acknowledged that prior to his absence, he was aware of his work performance issues.


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       On December 1, 2006, Plaintiff was cleared by his family physician to return to work and he

returned on that day. However, on December 12, 2006, a different physician recommended that

Plaintiff limit his work hours to half days until December 25, 2006. Based on his physician’s

recommendation, Plaintiff filed a second medical request with Defendant, which was granted.

       On December 13, 2006, Plaintiff met with Kral to discuss his work performance issues,

including, his workload, general feeling about his work responsibilities, and also his medical

condition. After the discussion, Plaintiff and Kral agreed that Plaintiff’s workload would be reduced.

Later that evening, Kral sent an email to Plaintiff, which summarized their earlier conversation. Kral

stated that Plaintiff would still be held accountable for performing at an acceptable level despite his

reduced workload. The email also mentioned that one of Plaintiff’s current claims would be

reassigned to a different employee due to his prior issues of failing to timely respond to clients and

co-workers. In addition, the email restated the company’s procedures for filing claims, completing

expense reports, as well as the company’s attendance and absence policy. Kral ended her email by

advising Plaintiff that his failure to adhere to the company’s policies and procedures “may result in

further disciplinary action up to and including termination.”

       Plaintiff met with Kral on January 16, 2007, to request additional time off in order to receive

medical treatment for his heart condition. Kral stated that she would “need to know what dates you

are going to be off and will need additional medical documentation to back any further time off work

until further notice.” On January 17, 2007, Plaintiff submitted a copy of a doctor’s note to Kral to

supplement his request.

       On January 18, 2007, Kral issued a second written warning memo to Plaintiff regarding his

frequent absences. The memo acknowledged that Plaintiff had made significant improvements in a


                                                  3
number of areas outlined in the email sent on December 13, 2006, but the memo also indicated that

Plaintiff failed to comply with the attendance policy. The memo stated that Plaintiff was being

placed on “written warning as a result of extensive absenteeism and failure to provide proper absence

notification.” The memo further documented that Plaintiff had missed fifteen days or partial days

from December 1, 2006 to January 18, 2007 without proper notification. The memo ended with the

following statement:

       It is to your advantage and to the Company’s advantage that you sustain acceptable
       performance. Failure to meet and to sustain the expected performance may result in
       termination of your employment with the Company. The Company reserves the right
       to accelerate this action process, up to and including termination in the event that
       there is deterioration in your performance or attendance. Please be reminded that
       notwithstanding this Corrective Action memorandum, your employment with the
       Company remains “at-will,” meaning either you or the Company may terminate the
       employment relationship at any time for any reason, with or without notice.

(R.13-7: Def. Mot. for Summ. J. Ex. G.) Plaintiff offered no explanation at his deposition for his

frequent absences and conceded that he did not provide any further documentation of his need for

time off from December 26, 2006 to January 18, 2007. Plaintiff explained in the employee comment

section of his written warning memorandum that his current medical condition was the sole reason

for his excessive absences.

       On January 24, 2007, Plaintiff verbally notified Kral that he needed additional heart surgery

that was scheduled for February 13, 2007. Kral requested that Plaintiff submit the appropriate

documentation for her review. Plaintiff then submitted a note from his cardiologist to notify Kral

of the procedure on February 7, 2007. That same day, Plaintiff changed his time-off request because

the cardiologist needed to reschedule the procedure. In accordance with the company’s absence

policy, Plaintiff submitted a new request to Kral. Plaintiff recalled that Kral stated that she was



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                                             No. 10-4396

“tired of me going to the doctor” and that Gary Gottschalk, a former supervisor at GAB Robins was

a witness to the conversation. Shortly after Plaintiff submitted his request, Plaintiff met with Kral

and was informed that he was being laid off because “there was a reduction of staff at GAB.”

        Plaintiff filed this action in the Cuyahoga County Court of Common Pleas asserting seven

claims against his former employer, GAB Robins: (1) disability discrimination in violation of the

Ohio Revised Code (ORC) § 4112.99; (2) age discrimination in violation of ORC § 4112.14(B); (3)

interference with rights under the FMLA, 29 U.S.C. § 2601 et seq.; (4) retaliation for exercising

FMLA rights; (5) breach of implied contract; (6) intentional infliction of emotional distress; and (7)

promissory estoppel.

        Defendant removed the case to the United States District Court for the Northern District of

Ohio pursuant to 28 U.S.C. § 1441. On January 15, 2010, Defendant filed a motion for summary

judgment. Plaintiff opposed Defendant’s motion and Defendant filed a reply in support of its

summary judgment motion.

        Defendant also filed a motion to strike portions of Plaintiff’s affidavit on the basis that the

affidavit contained conclusory statements, subjective beliefs, and other statements, which

contradicted Plaintiff’s deposition testimony. The district court issued its memorandum and opinion

on September 27, 2010 granting Defendant’s summary judgment motion. The district court also

granted in part Defendant’s motion to strike Plaintiff’s affidavit. Plaintiff timely filed his notice of

appeal, on October 27, 2010. We dismissed for want of prosecution, but later reinstated Plaintiff’s

appeal, in which he challenges the grant of summary judgment on his FMLA claims.




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                                            No. 10-4396

                                           DISCUSSION

       I.      Standard of Review

       We review a district court’s grant of summary judgment de novo. Binay v. Bettendorf, 601

F.3d 640, 646 (6th Cir. 2010). Summary judgment is appropriate where “there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro.

56(a) (2011). Evidence in the record is viewed in the light most favorable to the nonmoving party,

and all reasonable inferences are drawn to the benefit of that party. Combs v. Int’l Ins. Co., 354 F.3d

568, 576–77 (6th Cir. 2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).

Summary judgment is appropriate only where the evidence raises no genuine issues of material fact

“such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

       II.     Analysis

               A.      The FMLA

       The FMLA protects employees who have worked for the same employer for at least one full

year and who have provided at least 1,250 hours of service within that time period. See 29 U.S.C.

§ 2611(2)(A). Eligible employees are entitled to up to twelve weeks of leave per year if the

employee has a “serious health condition that makes the employee unable to perform the functions

of the position of such employee.” Id. § 2612(a)(1)(D). An eligible employee who takes leave

pursuant to the FMLA “shall be entitled, on return from such leave, to be restored by the employer

to the position of employment held by the employee when the leave commenced,” id. §




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                                             No. 10-4396
2614(a)(1)(A), or “to an equivalent position with equivalent employment benefits, pay, and other

terms and conditions of employment.” Id. § 2614(a)(1)(B).

        We “recognize two distinct theories for recovery under the FMLA: (1) the ‘entitlement’ or

‘interference’ theory arising from 29 U.S.C. § 2615(a)(1); and (2) the ‘retaliation’ or ‘discrimination’

theory arising from 29 U.S.C. § 2615(a)(2).” Hoge v. Honda of America Mfg., Inc. 384 F.3d 238,

244 (6th Cir. 2004).

        In this case, Plaintiff’s claim falls under the retaliation/discrimination theory,1 which

prohibits an employer from discriminating or retaliating against an employee for taking FMLA leave.

See 29 U.S.C. § 2615(a)(2). An employer is prohibited from “us[ing] the taking of FMLA leave as

a negative factor in employment actions.” 29 C.F.R. § 825.220(c); Arban v. West Publ’g Corp., 345

F.3d 390, 403 (6th Cir. 2003). Employers who violate the FMLA are liable to the employee for

damages. 29 U.S.C. § 2617(a)(1); see, e.g., Bryant v. Dollar Gen. Corp., 538 F.3d 394, 397 & n.1

(6th Cir. 2008) (noting that damages are awarded pursuant to 29 U.S.C. § 2617). In analyzing an

FMLA discrimination claim, we employ the burden shifting analysis set forth in McDonnell

Douglas. See McDonnell Douglas v. Green, 411 U.S. 792 (1973). Under the burden shifting

analysis Plaintiff must establish that:

        (1) she was engaged in an activity protected by the FMLA; (2) the employer knew
        that she was exercising her rights under the FMLA; (3) after learning of the
        employee’s exercise of FMLA rights, the employer took an employment action



        1
         Plaintiff’s brief also perfunctorily refers to his interference claim but he fails to develop an
argument to support that claim. Even if Plaintiff intended to appeal that claim, he has waived it.
Regardless, the claim is easily disposed of on reasoning similar to that outlined in connection with
the retaliation claim.

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                                            No. 10-4396
       adverse to her; and (4) there was a causal connection between the protected FMLA
       activity and the adverse employment action.

Killian v. Yorozu Automotive Tenn, Inc., 454 F.3d 549, 556 (6th Cir. 2006) (citing Arban, 345 F.3d

at 404). Plaintiff “bears the burden of demonstrating a causal connection . . . and must show that the

employer’s stated reason for [termination] was pretextual and that the true reason for [his] dismissal

was [his] medical leave.” Id. If the employee establishes a prima facie case of discrimination under

the FMLA, then the burden shifts to the employer to offer a legitimate non-discriminatory reason for

the termination. Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th Cir. 2006). This appeal only

involves the fourth prong of the analysis—whether Plaintiff has demonstrated a causal connection

between the protected FMLA activity and his termination.

               B.      Plaintiff’s Retaliation Claim

       Plaintiff asserts that Defendant terminated his employment after he exercised his right to take

FMLA leave to treat his heart condition. He argues that the district court erred in granting summary

judgment to Defendant because (1) he provided sufficient notice of his intent to take FMLA leave

and Defendant granted his request, and (2) there was a close temporal proximity between the time

he provided notice to exercise his right under the FMLA and his discharge.

       This Circuit has not adopted a uniform approach on whether a causal connection may be

established solely on the basis of temporal proximity. On the one hand, we have concluded that

temporal proximity alone is sufficient to establish a prima facie case of FMLA retaliation. See

DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir. 2004) (finding that Plaintiff was terminated by his

employer twenty-one days after he engaged in a protected activity was “significant enough to

constitute indirect evidence of a causal connection so as to create an inference of retaliatory

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                                            No. 10-4396
motive”); Muhammad v. Close, 379 F.3d 413, 417–18 (6th Cir. 2004) (same). But we have also

stated that “temporal proximity is insufficient in and of itself to establish that the employer’s non-

discriminatory reason for discharging an employee was in fact pretextual.” Skrjanc v. Great Lakes

Power Serv. Co., 272 F.3d 309, 317 (6th Cir. 2001). This Circuit has applied this rule to the general

context of retaliation cases. See Holzemer v. City of Memphis, 621 F.3d 512, 526 (6th Cir. 2010)

(stating that temporal proximity cases under a First Amendment retaliation claim requires the court

to always look at the totality of the circumstances to determine whether an inference of retaliatory

motive exists); Parnell v. West, No.95-2131, 1997 WL 271751, at *2 (6th Cir. 1997) (finding that

under a Title VII discrimination claim, “temporal proximity alone will not support an inference of

retaliatory discrimination where there is no other compelling evidence”)).

       In this case, Plaintiff notified Kral of his intent to take FMLA leave on January 24, 2007.

Plaintiff was subsequently terminated on February 7, 2007, or approximately fourteen days after he

notified Defendant of his medical leave. Although Plaintiff has established a close temporal

proximity between his request for medical leave and his discharge, Defendant provided a legitimate,

non-discriminatory reason for terminating Plaintiff’s employment—namely that Plaintiff was

released due to a nationwide staff reduction at GAB Robins and would have been released even if

he had not taken medical leave. The FMLA does not “provide absolute protection from layoff for

protected employees.” Taylor v. Union Institute, 30 F. App’x 443, 453 (6th Cir. 2002) (per curiam).

Moreover, Plaintiff never refuted Defendant’s contention that his termination was based on

economic reasons. In fact, Plaintiff admitted at his deposition that he was aware of the workforce

reduction at GAB Robins, and he has no reason to dispute the fact that 84 employees were laid off


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                                           No. 10-4396
nationwide around the same time of his termination. In addition, Plaintiff was not the only employee

discharged from his office as Defendant identified another claims adjuster, in a different division,

that was also let go. There was also no indication from other employees that Plaintiff was released

as a result of requesting medical leave. Plaintiff’s former supervisor could not identify any other

reason beyond economic reasons to explain Plaintiff’s termination. Furthermore, Plaintiff has failed

to identify any evidence of a retaliatory animus by Defendant.

       Defendant also provided a second legitimate non-discriminatory reason for Plaintiff’s

termination—Plaintiff’s performance issues. The record indicates that Plaintiff would have been

terminated regardless of whether he exercised his FMLA rights. The evidence submitted on the

summary judgment motion highlight a number of performance issues that arose prior to Plaintiff’s

medical condition and continued despite numerous warnings from his supervisor. In the October 9,

2006 memo, Kral issued a written warning to Plaintiff that advised him that his unexcused absences

and his failure to follow the company’s attendance policy were grounds for termination. Plaintiff

never refuted the statements in Kral’s memo.

       Q: Ms. Kral states that “there are many times when you just do not show up to work,
       and we have no idea where you are until you either call in later that day or just show
       up.” Have I read that correctly?

       A: You have.
       ...

       Q: Do you have any reason to believe that the dates identified by Ms. Kral were
       incorrect.

       A. No sir.

(R.13-2: Krumheuer Dep. 86–87.)


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                                             No. 10-4396
        On December 13, 2006, Kral attempted to address Plaintiff’s performance issues through an

email, and also established new work guidelines and deadlines for submitting expense reports and

work files. In addition, the email indicated that Plaintiff was required to provide advance notice of

any absences or tardies. The email further stated that Plaintiff could be subject to disciplinary action,

including termination, if he failed to comply with these requests. Plaintiff subsequently failed to

comply. While Plaintiff did show some improvement in his handling of the files, there remained

other performance issues and Defendant reasonably decided that it was appropriate to issue Plaintiff

a written warning. After this disciplinary action, Plaintiff continued to miss a substantial number

of days of work from December through January, in violation of the company’s attendance policy

and Kral’s directive. Thus, Plaintiff’s work performance provided an additional legitimate non-

discriminatory reason to terminate his employment.

        Plaintiff has failed to establish a causal connection between Plaintiff’s medical leave request

and his discharge. In addition, Defendant provided legitimate non-discriminatory reasons for

Plaintiff’s termination which Plaintiff is unable to rebut as being pretextual. Since Plaintiff cannot

substantiate his FMLA retaliation claim, summary judgment in favor of Defendant was proper.

                                           CONCLUSION

        For the reasons discussed above, we AFFIRM the district court’s order granting summary

judgment to Defendant.




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