                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1081n.06

                                           No. 10-3735                                   FILED
                                                                                     Oct 16, 2012
                          UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


RALPH GATES, III                      .       )
                                              )
       Plaintiff - Appellant                  )      ON APPEAL FROM THE UNITED
                                              )      STATES DISTRICT COURT FOR THE
v.                                            )      NORTHERN DISTRICT OF OHIO
                                              )
UNITED STATES POSTAL SERVICE                  )
                                              )
       Defendant - Appellee.                  )



       Before: CLAY and WHITE, Circuit Judges; and HOOD, District Judge.*


       HOOD, District Judge. Plaintiff-Appellant Ralph Gates, III, appeals from the judgment

entered in favor of the Defendant-Appellee the United States Postal Service by the district court on

Gates’ interference and retaliation claims under the Family and Medical Leave Act (“FMLA”).

Gates argues that the district court erred when, with the assistance of an advisory jury pursuant to

Fed. R. Civ. P. 39(c)(1), it found that Gates’ employment would have been terminated regardless of

the exercise of his rights under the FMLA because he had an excessive number of unscheduled

absences unrelated to his FMLA leave. For the reasons that follow, we affirm the district court’s

judgment.




       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
                                                 I.

          Appellant Gates brought this action against Appellee USPS, alleging that USPS terminated

him in violation of the FMLA (Count 1); terminated him in retaliation for exercising his rights under

the FMLA (Count 2); terminated him in violation of public policy under Ohio law (Count 3); and

violated the wage and labor laws by failing to pay him for required work hours. (Count 4). The

district court entered summary judgment for USPS to Counts 3 and 4 of the Complaint, but found

that genuine issues of material fact precluded summary judgment on Counts 1 and 2, the FMLA

claims.

          The bench trial commenced on May 17, 2010, with the assistance of an advisory jury of

twelve people pursuant to Fed. R. Civ. P. 39(c)(1). At the conclusion of the case, the advisory jury

returned a verdict for USPS. The advisory jury unanimously determined that, although Gates

“proved by a preponderance of the evidence that [USPS] interfered with his right to take unpaid

leave from work under the FMLA or retaliated against him because he opposed a practice made

unlawful by the FMLA,” USPS also showed by a preponderance of the evidence “that [Gates] would

have been terminated from his job even if he had not taken FMLA leave.” [R. 39, 40, Verdict,

Interrogatory 1, 2]

          The district court incorporated specific findings of fact into the Amended Judgment, as

required under Fed. R. Civ. P. 52 (a)(1), and adopted the advisory jury’s verdict. Gates appeals from

the Amended Judgment.

                                                 II.

          Gates was employed as a Transportation Networks Specialist by USPS. USPS approved

Gates for intermittent FMLA leave due to gout in May 2006. Gates’ certification in support of his


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FMLA leave provided that he might need to miss one (1) to five (5) days of work per week

depending on his gout pain.

       Evidence at trial showed that Gates had a history of attendance issues involving unscheduled

absences predating his application for FMLA leave. Following his application for FMLA leave,

Gates continued to have unscheduled absences, some of which were related to his FMLA-certified

condition, but many were not.

       In order to demonstrate that his absences were due to his FMLA-certified condition, Gates

was required to call in to the Interactive Voice Response (“IVR”) telephone system to report

unscheduled absences. USPS also required its employees to complete PS Form 3971 to request

approval for absences, whether scheduled or unscheduled. Supervisors were responsible for

approving leave requests for pay purposes, while FMLA coordinators approved or disapproved

FMLA leave requests. When an employee sought FMLA leave for a particular condition, an FMLA

case number for that request was generated. By using case numbers, USPS protected employees’

privacy by avoiding disclosure of their medical condition, and attempted to accurately track

employees’ usage of FMLA leave. When an employee with an existing FMLA case number called

in to the IVR system for FMLA leave, the employee was supposed to provide that number. If an

employee with an approved FMLA condition did not provide the employee’s case number or the

system improperly recorded it, the employee could simply write his or her FMLA number on his or

her leave slip, which the employee would submit upon returning to work. An employee who called

in to the IVR system and requested FMLA leave but did not provide a case number indicated to the

computer system that the employee did not have an approved FMLA condition on file, and that the

employee needed to complete the paperwork necessary to receive FMLA coverage. Consequently,


                                                3
the computer system would generate an FMLA “packet,” which contained documents that had to be

completed in order for the employee to obtain FMLA coverage. The cover letter of the packet

informed the employee that if the absence was related to a condition for which the employee already

had been approved for FMLA leave, the employee had to contact the local FMLA coordinator within

five days. Employees could contact the FMLA coordinator in person, by email or by telephone. If

an employee did not respond to a packet or put the FMLA case number on the employee’s leave slip,

the FMLA coordinator could not ascertain whether the absence was covered by the employee’s

existing FMLA-approved condition, meaning that the leave could not be approved as FMLA

qualifying.

       Between 2006 and 2008, Gates was subject to disciplinary actions regarding his unscheduled

absences. Gates and his representative from the National Association of Postal Supervisors entered

into several settlement agreements to resolve the disciplinary actions. Many of the absences forming

the basis for Gates’ discipline were not related to his FMLA-certified condition. However, in other

circumstances, Gates failed to comply with the procedure set forth by USPS, so that the FMLA

requests were disapproved by the FMLA coordinators, rather than by Gates’ supervisors, for failure

to write his FMLA case number on his leave slips or to respond to the FMLA packets issued to him.

Gates often did not provide his FMLA case number (as required) when he did call in to the IVR

system, and received at least sixteen different FMLA packets in 2007 and 2008. Gates did not

contact the FMLA coordinator in response to any of these packets. Gates often neglected to write

his FMLA case number on his leave slips, even after meeting with FMLA coordinators to discuss

the requirements.




                                                 4
        Nonetheless, many of the absences forming the basis for these disciplinary actions were

absences for which Gates had not requested FMLA leave. On February 11, 2008, Gates received

another Letter of Warning in Lieu of a 14-Day Suspension. During the time period covered by this

letter of warning, Gates had twenty-six absences. On two of those, he was absent without leave. He

did not request FMLA leave for two tardy appearances on September 20, 2007 and October 1, 2007.

Gates did not call in to report fifteen of the twenty-six absences included in the letter of warning,

despite agreeing to do so in an earlier September 2007 settlement agreement. When Gates did call

in and request FMLA leave, he failed to follow proper procedures, so that the FMLA requests were

disapproved by the FMLA coordinators for failure to write his FMLA case number on his leave slips

or to respond to the FMLA packets issued to him.

        USPS issued a notice of proposed removal to Gates on October 7, 2008. The notice of

proposed removal identified sixteen unscheduled absences over a thirteen-week period. Four of the

absences identified in the notice were for emergency annual leave requested for transportation

problems not related to FMLA leave. Gates was absent without leave for an entire day on June 27,

2008. Only three of the sixteen absences identified on the notice of proposed removal were absences

for which Gates had requested FMLA leave that had been disapproved. The remaining thirteen

absences were not covered by the FMLA, and Gates never requested FMLA leave for those absences.

Gates did not call in to notify USPS about seven of the sixteen unscheduled absences. On December

10, 2008, USPS issued a decision letter, and terminated Gates’ employment effective January 1,

2009.

        The district court found that neither of the supervisors involved in the termination decision

terminated Gates in retaliation for his use of FMLA leave and that those supervisors would have


                                                 5
terminated Gates whether or not he took FMLA leave. Pennington, who made the decision to

terminate Gates, testified that she approved the proposed removal because Gates had exhibited a

pattern of not showing up, calling in late or failing to call in at all during the entire time he had

worked for her, beginning sometime in 2002 or 2001. Lindsey testified that she began disciplining

Gates for his attendance problems in 2005. She requested Gates’ termination because “Mr. Gates

did not improve his attendance or absences. He was constantly absent, late, AWOL, emergency

annual.” [R. 54, Tr., Lindsey Test., Page ID # 1187.] The district court ultimately found that

“[Gates] failed to prove that his termination was related to FMLA and that Defendant proved by a

preponderance of the evidence that [Gates’] termination was justified and due to excessive

unscheduled absences not related to the FMLA.” [R. 47, Amend. J., Page ID # 893.] The court then

entered judgment for USPS.

                                                  III.

        This Court reviews “the factual findings of the district judge in a bench trial for clear error,

and the legal findings de novo.” Taylor Steel, Inc. v. Keeton, 417 F.3d 598, 604 (6th Cir. 2005). “A

district court’s factual findings are clearly erroneous if, based on the entire record, we are ‘left with

the definite and firm conviction that a mistake has been committed.’” Shelby Cnty. Health Care

Corp. v. Majestic Star Casino, 581 F.3d 355, 364–65 (6th Cir. 2009) (quoting Sanford v. Harvard

Indus. Inc., 262 F.3d 590, 595 (6th Cir. 2001)). “It is the appellant who must shoulder the burden

of proving such a mistake, and this burden is not met merely by demonstrating a conflict in the

testimony, nor by seeking to redetermine the credibility of witnesses.” Sawyer v. Arum, 690 F2d.

590, 592 (6th Cir. 1982) (internal citations omitted). A reviewing court may not “reverse a district

court’s findings of fact because the reviewing court is convinced that it would have decided the case


                                                   6
differently.” E.E.O.C. v. Yenkin-Majestic Paint Corp., 112 F.3d 831, 833 (6th Cir. 1997) (citing

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)). “[A] choice between two

permissible views of the weight of evidence is not ‘clearly erroneous.’” United States v. Yellow Cab

Co., 338 U.S. 338, 342 (1949).

                                                 IV.

                                                  A.

       There are two separate theories of recovery under the FMLA: the “interference” theory and

the “retaliation” theory. Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). The

“interference” theory is based on 29 U.S.C. § 2615(a)(1), which states that employers cannot

“interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided . . .” by

the FMLA. In order to state an interference claim pursuant to the FMLA, Gates “must show that (1)

he was an eligible employee; (2) [USPS] was an employer subject to the FMLA; (3) he was entitled

to leave under the FMLA; (4) he gave [USPS] notice of his intention to take FMLA leave; and (5)

[USPS] denied him FMLA benefits to which he was entitled.” Romans v. Mich. Dep’t of Human

Servs., 668 F.3d 826, 840 (6th Cir. 2012). Gates was an eligible employee and USPS was subject

to the FMLA, but the parties disputed the remaining two elements at trial.

       The “retaliation” or “discrimination” theory arises from 29 U.S.C. § 2615(a)(2), which states

that an employer cannot “discharge or in any other manner discriminate against any individual for

opposing any practice made unlawful by this subchapter.” To establish a prima facie case of

retaliation pursuant to the FMLA, Gates must establish that (1) he was engaged in an activity

protected by the FMLA; (2) the employer knew that he was exercising his rights under the FMLA;

(3) after learning of his exercise of FMLA rights, the employer took an employment action adverse


                                                  7
to him; and (4) there was a causal connection between his protected FMLA activity and the adverse

employment action. Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012) (quoting Killian v.

Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006)).

       This Court applies the Title VII burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973), to both FMLA interference and retaliation

claims where, as here, there is no direct evidence of unlawful conduct. Donald, 667 F.3d at 762.

Thus, if the plaintiff establishes a prima facie case as to either an interference or retaliation claim

under the FMLA, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory

reason for the adverse employment action. Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007).

If the employer satisfies its burden of production, the plaintiff must show that the proffered reason

is a pretext for unlawful discrimination. Id.

                                                  B.

       Gates argues that sufficient evidence at trial demonstrated that he provided USPS with all

of the notice necessary for his absences, either by written note or by using the call-in procedure, and

that the absences for which FMLA leave was denied were the sole basis for termination of his

employment, demonstrating an interference claim. Gates argues that the district court erred by

finding, contrary to the advisory jury’s determination, that USPS had not retaliated against Gates for

exercising his FMLA rights, and that the district court did not make a finding regarding whether

USPS interfered with Gates’ FMLA rights. In support of his argument, Gates states that he provided

all of the evidence necessary to obtain FMLA certification for 20 of his absences referenced in the

2008 letter of warning, that the district court ignored evidence that his absences in 2005 were

eventually approved as FMLA leave for a family member, and that USPS expunged his disciplinary


                                                  8
letters received prior to 2007, and, therefore, the district court erred in considering these absences.

Finally, Gates argues that, in light of Cavin v. Honda of America Mfg., Inc., 346 F.3d 717, 723 (6th

Cir. 2003), “employers cannot deny FMLA relief for failure to comply with their internal notice

requirements.”

        However, Gates makes no arguments challenging the district court and advisory jury’s

finding that Gates’ termination was justified and due to excessive unscheduled absences not related

to FMLA. Thus, Gates presents arguments that are simply irrelevant to the inquiry facing this Court.

In Cavin, the court concluded that the employer violated the FMLA because plaintiff was — in any

event — terminated for failing to properly follow his employer’s “internal procedural requirements

that [were] more strict than those contemplated by the FMLA.” Id. at 718, 720. By contrast, Gates

would have been terminated due to excessive unscheduled absences unrelated to his FMLA leave,

regardless of the exercise of his FMLA rights or his compliance with internal USPS procedures

related to FMLA leave. Accordingly, Cavin does not apply to the instant matter.

        While Gates argues that the district court ignored the advisory jury’s findings1, the district

court explicitly adopted the jury’s findings by stating that it “finds that the jury’s findings are in

accordance with the findings of fact made by the [district] [c]ourt, thus, the [c]ourt adopts the

[a]dvisory [j]ury’s [v]erdict.” [R. 47, Amend. J., Page ID # 893.] Thus, the district court agreed with

the advisory jury’s findings in Interrogatory One that a preponderance of the evidence demonstrated



        1
           Nonetheless, “[t]he district court was not required to accept the jury’s verdict; in fact, the
district court was required to make independent findings of fact when trying a case with an advisory
jury.” Hickory Specialties, Inc. v. Forest Flavors Int’l, Inc., 215 F.3d 1326, 2000 WL 687681, at
*7 (6th Cir. 2000) (unpublished table decision). “In all actions tried upon the facts without a jury
or with an advisory jury, the court shall find the facts specially and state its conclusions of law
separately.” Fed.R.Civ.P. 52(a)(1).

                                                   9
that USPS interfered with Gates’ FMLA rights or retaliated against him. In other words, the district

court and the advisory jury agreed that Gates succeeded in proving a prima facie FMLA case.

       However, while Gates’ ill-fated analysis ends there, the inquiry does not. The district court

and advisory jury also found, pursuant to the burden-shifting framework set out in Douglas, 667 F.3d

at 762, for interference and retaliation claims, that Gates would have been terminated from his job

even if he had not taken FMLA leave. The non-discriminatory basis for his termination—his

excessive unscheduled absences—were not pretext for his termination. Thus, both the advisory jury

and the district court determined that judgment should be entered in favor of USPS. As the district

court concluded, Gates ultimately “failed to prove that his termination was related to FMLA[,] and

[USPS] proved by a preponderance of the evidence that [Gates’] termination was justified and due

to excessive unscheduled absences not related to FMLA.” [R. 47, Amend. J., Page ID # 893.]

       Thus, Gates’ assertion that sufficient evidence was presented at trial in support of his prima

facie case is true, as the district court shifted the burden to USPS to articulate a legitimate, non-

discriminatory reason for terminating Gates’ employment. However, Gates neglects to point to any

evidence or make any argument that his termination was not justified based on his excessive

unscheduled absences or that it was pretextual. Rather, the evidence submitted at trial supported that

(1) Gates had a history of unscheduled absences before receiving FMLA leave in 2006, (2) Gates did

not request FMLA leave for at least 4 of his unscheduled absences referenced in the Letter of

Warning that he received prior to his Proposed Removal, (3) Gates had only requested FMLA leave

for 3 of his 16 unscheduled absences occurring over a 13 week period that were referenced in his

Notice of Proposed Removal, and (4) Gates’ supervisors, Lindsey and Pennington would have

terminated Gates’ employment whether or not he took FMLA leave. Thus, we are not persuaded that


                                                 10
the district court’s factual finding that termination was justified and due to excessive unscheduled

absences unrelated to his FMLA-certified condition was clearly erroneous and we decline to disturb

the verdict in favor of USPS.

                                                  C.

       Even considering Gates’ arguments relating to the district court’s fact findings made with

respect to his prima facie case, we see no reason to disturb the district court’s findings. Gates argues

on appeal that the district court ignored evidence showing that his absences in 2005 were eventually

approved as FMLA leave for care of a family member. Nonetheless, Gates admitted at trial that

several of his absences in 2005, which formed the basis for his January 2006 Letter of Warning, were

unrelated to his FMLA leave for care of a family member. Additionally, Gates argues that the

district court erred by considering the absences referenced in the disciplinary letters received prior

to 2007 because they had been expunged. Although USPS agreed in its settlement agreement, dated

September 14, 2007, to expunge the pre-2007 disciplinary letters if Gates complied with certain

terms, the parties disagreed as to whether Gates had complied with those terms and, thus, whether

the expungement was required or actually occurred. Nonetheless, there was more than sufficient

evidence entered at trial and relied upon by the district court to show that the unscheduled absences

prior to 2007 occurred and that Gates continued to exhibit attendance issues, thereby relieving USPS

of its duty to expunge those letters. Accordingly, we conclude the district court did not commit clear

error by relying on those findings of fact.

                                                  V.

       For all of the reasons stated above, we AFFIRM the district court’s judgment.




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