                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0118n.06

                                         No. 16-1782

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                   FILED
                                                                                Feb 22, 2017
JOHN LEVAINE,                      )                                        DEBORAH S. HUNT, Clerk
                                   )
     Plaintiff-Appellant,          )
                                   )
v.                                 )                          ON APPEAL FROM THE
                                   )                          UNITED STATES DISTRICT
TOWER AUTOMOTIVE OPERATIONS USA I, )                          COURT FOR THE EASTERN
LLC,                               )                          DISTRICT OF MICHIGAN
                                   )
     Defendant-Appellee.           )
                                   )



       Before: GIBBONS, COOK, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge.          John Levaine sued his former employer, Tower

Automotive, alleging that Tower violated his rights under the Family Medical Leave Act

(FMLA). The district court granted Tower’s motion for summary judgment. We affirm.

                                               I.

       Levaine started working for Active Tool and Manufacturing (a producer of car parts) in

1997 and joined the United Steelworkers of America Local 2-628. Two years later, Tower

bought Active Tool, employed its workers (including Levaine), and entered into a labor

agreement with the Union. The agreement set forth Tower’s policies against harassment and

improper conduct, which themselves prohibited “conduct of any type” that was “contrary to

[Tower’s] value of treating everyone with dignity and respect.” Whether an employee’s conduct

violated these policies was for Tower to determine “in its sole discretion.” Any breach of these
No. 16-1782, Levaine v. Tower Automotive Operations


policies could result in immediate termination, and indeed Levaine himself testified that Tower

had fired employees for threatening supervisors in violation of the anti-harassment policy.

       Under the Family Medical Leave Act, employees can take up to 12 weeks of unpaid leave

under certain circumstances. See 29 U.S.C. § 2612. Over the years, Levaine requested and

Tower granted him FMLA leave on two grounds: to care for his wife’s serious medical

condition, in 2006 and 2013; and for his own work-related stress and anxiety, in 2013 and 2014.

In addition, Tower repeatedly excused Levaine’s absences and late arrivals as FMLA leave.

       The relevant events here occurred in July and August 2014.           Levaine’s immediate

supervisors then were Steven Kreider, Ryan Paxton and Al Whittredge, who themselves reported

to the assembly superintendent, Jeff Muether, who in turn reported to the plant manager, Bill

Junge. On July 29, 2014, according to Levaine’s deposition testimony, he “probably” started

having an anxiety attack when he woke up, and it “probably” continued while he got ready for

and commuted to work. Levaine arrived at work “one or two minutes late,” and he told

Whittredge, the supervisor on duty, that he “was late because of FMLA.” Levaine did not

explain that he was late because of his anxiety, and Whittredge did not say that Levaine’s FMLA

request was approved. Levaine wrote “FMLA” on his timecard.

       Two days later, Kreider, one of Levaine’s supervisors, met with Levaine and his Union

steward, Brent Shears, to discuss a disciplinary write-up for Levaine’s late arrival on July 29.

When Kreider gave Levaine the write-up, Levaine became visibly upset and shouted that

Whittredge had excused his late arrival. Kreider then called his supervisor, Muether, who told

the group to come with him to find Whittredge.

       Muether walked out of the room. Levaine started to leave, but stopped and turned to face

Kreider and Shears, 15 to 20 feet away. Levaine held up the write-up and shouted to Kreider,



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“I’m going to get you on this.” Kreider and Shears ran up to Levaine, and Levaine repeated,

“I’m going to get you on this” and said that he was going to file a complaint with the Department

of Labor.

       Levaine, Kreider and Shears caught up to Muether and told him about the shouting

incident. Muether tried to ask Whittredge about Levaine’s late arrival two days earlier, but

Levaine, still screaming and yelling, would not let Whittredge answer. Muether sent Levaine to

another part of the plant to “settle down.” Muether then took statements from Kreider and

Shears; in separate interviews, each of them independently said Levaine had threatened Kreider.

Muether found their statements credible. Muether also thought that Shears had no reason to lie,

because he was Levaine’s union representative.

        Tower suspended Levaine and began to investigate the incident. Eventually Tower

determined that Levaine had threatened Kreider in violation of the company’s anti-harassment

policy. Tower fired Levaine on August 4, 2014, without determining whether he should have

been granted FMLA leave for his late arrival on July 29.

       Levaine thereafter brought this lawsuit, asserting claims against Tower under the FMLA

and Michigan law. Tower moved for summary judgment, which the district court granted as to

the FMLA claims. The court dismissed the state-law claims without prejudice. This appeal

followed.

                                                 II.

       We review de novo the district court’s grant of summary judgment. Hamilton Cty. Educ.

Ass’n v. Hamilton Cty. Bd. of Educ., 822 F.3d 831, 834 (6th Cir. 2016).




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                                               A.

       Levaine argues that a jury could find that Tower interfered with his rights under the

FMLA when it disciplined him for his late arrival, suspended him for threatening his supervisor

two days later, and ultimately fired him for that same incident. See 29 U.S.C. § 2615(a)(1).

       As an initial matter, Levaine must show that he was entitled to FMLA leave for his late

arrival and that Tower denied it nonetheless. See Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th

Cir. 2012). To be entitled to FMLA leave, an employee must both notify his employer of his

need to take leave and state a qualifying reason for leave. See 29 C.F.R. § 825.301(b). If the

employer lacks sufficient information to determine whether the FMLA applies, the employee

must help his employer gather more details. See id. § 825.303(b). If the employee fails to do so,

and the employer cannot otherwise determine if the request qualifies under the FMLA, then the

employer may deny leave. Id.

       Here, Levaine thought that he was entitled to and had been granted FMLA leave for his

late arrival on July 29. But Tower never officially approved his FMLA request for that day.

When Levaine objected to the disciplinary write-up two days later, his supervisors tried to gather

more details. That investigation conceivably might have led Tower to excuse Levaine’s late

arrival under the FMLA, but Levaine himself aborted the process when he shouted at his

supervisors and prevented Whittredge from answering questions. And Levaine did not otherwise

assist with Tower’s investigation. Tower thus could have properly denied his leave request,

which means Levaine did not establish that he was entitled to FMLA leave. His interference

claim therefore fails.




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No. 16-1782, Levaine v. Tower Automotive Operations


                                                  B.

       Levaine’s remaining claim is that Tower retaliated against him for invoking the FMLA

when he arrived late on July 29. 29 U.S.C. § 2615(a)(2); see generally Donald, 667 F.3d at 761.

To prevail on this claim, Levaine must present evidence that would allow a jury to find that

Tower disciplined, suspended, and ultimately fired him “specifically because [he] invoked [his]

FMLA rights.” Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006) (emphasis in

original). If Tower states a legitimate, non-retaliatory reason for firing him, then Levaine must

show that the company’s stated reason was pretextual. See Grace v. USCAR, 521 F.3d 655, 670

(6th Cir. 2008). Here, Tower stated a perfectly valid reason for firing Levaine—that he had

threatened a supervisor in violation of company policy. Levaine contends that the short time

between his invocation of the FMLA and Tower’s decision to suspend and fire him would allow

a jury to find that Tower’s real reason for these actions was his invocation of the FMLA when he

arrived late on July 29. But “temporal proximity cannot be the sole basis for finding pretext.”

Donald, 667 F.3d at 763. Moreover, any inference based on temporal proximity here is negated

by the fact that Levaine threatened his supervisor during that same time. Levaine therefore

cannot show pretext based on timing. Nor would any of his other arguments about the putative

unfairness of his firing allow a jury to find pretext.

                                           *       *     *

       The district court’s judgment is affirmed.




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