                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0787n.06
                                                                                              FILED
                                             No. 10-3842
                                                                                        Nov 22, 2011
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


JAMI L. COFFMAN,                       )
                                       )
      Plaintiff-Appellant,             )                    ON APPEAL FROM THE
                                       )                    UNITED STATES DISTRICT
v.                                     )                    COURT FOR THE SOUTHERN
                                       )                    DISTRICT OF OHIO
FORD MOTOR COMPANY,                    )
                                       )
      Defendant-Appellee.              )                            OPINION
_______________________________________)


Before: MARTIN, MOORE, and COOK, Circuit Judges.

        KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Jami L. Coffman filed

suit in 2008 against her former employer, Defendant-Appellee Ford Motor Company (“Ford”),

alleging that Ford unlawfully retaliated against her after she sought to exercise her rights under the

Family and Medical Leave Act (the “FMLA”). Finding both that Coffman’s evidence failed to

establish that Ford’s reason for her termination was pretextual and that Coffman did not show the

willfulness required to bring her claim within the applicable statute of limitations, the district court

granted Ford summary judgment. We AFFIRM on the ground that Coffman fell short of

demonstrating a material issue of fact on the merits of her retaliation claim. Because we decide the

case on pretext grounds, we do not address Coffman’s statute-of-limitations argument.
No. 10-3842
Coffman v. Ford Motor Company


                             I. BACKGROUND & PROCEDURE

       Coffman began working as a manufacturing technician at Ford’s Sharonville, Ohio

transmission plant in July 1999. In 2001, she became a quality coordinator, a position that she held

until her termination in July 2005. Coffman was also a member of the United Auto Workers, Local

863 (“Union”). In late 2004, Coffman began frequently missing work days and requesting leave

through Ford’s medical department (the “Plant Hospital”). Although Coffman properly supported

her absences on many of those dates—from 2004 to 2005 Ford approved eighty-six work days (688

hours) of medical leave—Ford cited at least ten periods for which Coffman did not submit timely

documentation. Those ten occurrences resulted in progressive disciplinary action, which culminated

in Coffman’s termination shortly after she was diagnosed with obstructive sleep apnea.

       Ford employees were eligible for leave under both the FMLA and the company’s collective

bargaining agreement (“CBA”). Upon requesting leave, employees would receive two documents:

a Form 5166, which was to be completed by the treating physician, and an FMLA notice stating that:

       [i]f your leave request is based on your own or an eligible family member’s serious
       health condition you must complete and return appropriate medical certification (e.g.,
       Form 5166, 5166B or 5166E), for the initial leave or an extension, within 15 calendar
       days of the Company’s written request. This notice is the Company’s written request
       for this certification. If you fail to return the completed certification within 15
       calendar days, the Company may delay commencement of your FMLA leave until the
       certification is submitted, you may be classified as absent without leave, and you may
       not have any rights under FMLA for the portion of the absence or leave before you
       do return a completed certification. In addition, you may lose your rights under
       FMLA altogether and be subject to termination.




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Coffman v. Ford Motor Company


R. 18-4 (Def.’s Mot. for Summ. J. Ex. 4).1 At that time, a Plant Hospital staff member would also

indicate on the Form 5166 whether the requesting employee was eligible for FMLA leave. To do

this, the staff member would check computer records to ensure that the employee had worked the

requisite 1,250 hours during the previous twelve months and that the employee had not already used

her 480-hour allotment of FMLA leave. See 29 U.S.C. § 2611(2) (defining “[e]ligible employee”).

       Ford’s policies were clear that failure to provide timely justification would result in an

employee being designated absent without leave (“AWOL”). If an employee was AWOL three times

in three months, the company would begin instituting progressive discipline. The discipline policy

imposed penalties ranging from unpaid suspension at the time of the employee’s disciplinary hearing

for the first set of occurrences to termination upon the tenth occurrence. An employee with multiple

occurrences leading up to a disciplinary hearing would receive a separate penalty for each infraction.

       Ford terminated Coffman on July 25, 2005 for repeated absenteeism resulting from ten

AWOL occurrences in an eight-month period. Coffman filed this action alleging FMLA retaliation

on July 23, 2008. According to Coffman, some of those occurrences were FMLA protected because

a jury could determine both that she had submitted appropriate documentation and that her March

and June absences constituted intermittent leave related to her diagnosis of obstructive sleep apnea



       1
         The CBA similarly provided that “[a]n employee who is unable to work because of injury
or illness, and who furnishes satisfactory evidence thereof, shall be granted an automatic sick leave
of absence covering the period of such disability.” R. 39-1 (Supp. Info. Ex. A). Longstanding
company procedure mandated that an employee who took CBA leave submit supporting documents
within five days of his or her return, though the presence of “extenuating circumstances” could
justify a two-to-three-day grace period. R. 18-3 (Snell Aff. ¶ 6).

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Coffman v. Ford Motor Company


in the summer of 2005. Ford filed a motion for summary judgment, which the district court granted

on two grounds. First, the district court held that although Coffman had established a prima facie

case of retaliation, she failed to rebut Ford’s nondiscriminatory explanation for her dismissal.

Coffman v. Ford Motor Co., 719 F. Supp. 2d 856, 863, 867 (S.D. Ohio 2010). Second, the district

court held that Coffman had not shown that Ford acted willfully, which rendered her action time-

barred under the two-year statute of limitations for nonwillful FMLA violations. Id. at 867–68.

Coffman filed this timely appeal.

                                          II. ANALYSIS

       “We review a district court’s grant of summary judgment de novo and draw all reasonable

inferences in favor of the nonmoving party.” Branham v. Gannett Satellite Info. Network, Inc., 619

F.3d 563, 568 (6th Cir. 2010). Summary judgment is warranted when 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 . P.

56(a). A genuine dispute exists “only when there is sufficient ‘evidence on which the jury could

reasonably find for the plaintiff.’” Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th

Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

       The FMLA entitles eligible employees to twelve weeks of leave per year for, among other

things, “a serious health condition that makes the employee unable to perform the functions of the

position of such employee.” 29 U.S.C. § 2612 (a)(1)(D).2 Employers are prohibited from retaliating


       2
        A “serious health condition” is defined in relevant part as “an illness, injury, impairment,
or physical or mental condition that involves . . . continuing treatment by a health care provider.”
29 U.S.C. § 2611(11).

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Coffman v. Ford Motor Company


or discriminating against an employee who exercises her rights under the Act. Id. § 2615(a)(2); see

also 29 C.F.R. § 825.220(c) (2004)3 (prohibiting employers from “discriminating against employees

. . . who have used FMLA leave”).

       Retaliation claims based on indirect evidence are subject to the McDonnell Douglas burden-

shifting test. Skrjanc, 272 F.3d at 313 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973)). Once Coffman presented a prima facie claim of retaliation, the burden shifted to Ford to

state a nondiscriminatory reason for her termination. See id. at 315. The burden then shifted back

to Coffman to demonstrate that Ford’s explanation was mere pretext for discrimination. See id. At

that point, her burden was to produce “evidence from which a jury could reasonably doubt the

employer’s explanation.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009).

       Because Ford does not contest the district court’s conclusion that Coffman stated a prima

facie case of retaliation, the only question on appeal is whether Coffman established that Ford’s

justification for terminating her was pretextual. Coffman may establish pretext by showing that

Ford’s proffered reasons “(1) have no basis in fact; (2) did not actually motiv[at]e the action; or (3)

were insufficient to warrant the action.” Staunch v. Continental Airlines, Inc., 511 F.3d 625, 631

(6th Cir.), cert. denied, 555 U.S. 883 (2008). “[R]etaliation claims turn on the employer’s motive

for discharging the plaintiff.” Bryson v. Regis Corp., 498 F.3d 561, 572 (6th Cir. 2007). Thus,

Coffman must put forward evidence that would allow a reasonable fact-finder to conclude that



       3
       Unless otherwise noted, we apply the 2004 regulations that were in place at the time of
Coffman’s termination.

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No. 10-3842
Coffman v. Ford Motor Company


Ford’s stated reason for her termination “is not the true reason and is simply a pretext for unlawful

retaliation.” Id. In other words, she “must show that the sheer weight of the circumstantial evidence

of discrimination makes it more likely than not that the employer’s explanation is a pretext, or

coverup.” Abdulnour v. Campbell Soup Supply Co., 502 F.3d 496, 503 (6th Cir. 2007) (internal

quotation marks omitted).

        Coffman has not come forward with facts to support such a conclusion. As discussed below,

we generally agree with the district court’s evaluation of Coffman’s absences, and, because she has

presented no other facts to support a reasonable juror’s conclusion that Ford engaged in intentional

discrimination, we affirm.

A. THE DISPUTED ABSENCES

        1. November 18–19 and December 16–17, 2004

        Coffman first disputes Ford’s reliance on the November and December 16 occurrences on

the ground that Ford did not cite them at her final disciplinary hearing as absences that contributed

to her termination. In making this argument, however, Coffman fails to mention the undisputed fact

that Ford’s progressive discipline policy required three occurrences in a three-month period before

an employee would be subject to penalty. Consistent with that requirement, the disciplinary action

report completed at the initial hearing mentioned all of these dates as justifying the initial adverse

action. Thus, Ford’s current reliance on the November and December 16 occurrences is fully

consistent with its earlier treatment of Coffman’s conduct and provides no support for her allegations

of pretext.


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No. 10-3842
Coffman v. Ford Motor Company


       Coffman’s challenge to the underlying factual bases for the November and December

occurrences also fails to raise any material dispute. Coffman neglected to provide Ford with support

for her November absences until December 16, rendering the documentation untimely under both

the FMLA and the CBA. Coffman’s December absences suffered from a similar deficiency.4 Even

if we assume, as Coffman argues, that she did everything possible to return the appropriate forms

after her January 21, 2005 disciplinary hearing, that does not change the fact that she again failed to

justify her absences within the time period that would have entitled her to leave. Cf. Coulter v.

Deloitte Consulting L.L.C., 79 F. App’x 864, 868 (6th Cir. 2003) (unpublished opinion) (stating that

“bare denials” and “subjective beliefs” are “an insufficient basis upon which to vacate summary

judgment”).

       2. March 16–18 and March 21–22, 2005

       Coffman’s claim that Ford improperly classified her as AWOL for two periods in March

presents a closer question but also ultimately fails. Coffman argues that she timely certified her

March absences via two Form 5166s, which she submitted on April 1. Unlike the other absences,

the issue here is not timeliness, but instead centers on the validity of the documentation.

       Coffman submitted her paperwork for the March 16 to 22 absences on two separate forms,

each presented within hours of the other, and with one citing “anxiety due to medication adjustment”


       4
         Coffman’s argument that a nurse in the Plant Hospital found her “unfit for work,” Appellant
Br. at 20 (citing R. 35 (Coffman Dep. Ex. 19)), also fails to raise any material dispute, as Coffman
failed to show that the designation reflected anything more than her request for leave. That initial
request did not eliminate her responsibility to provide timely documentary support for her absences.
See R. 38-1 (Lin Supp. Decl. ¶ 4).

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No. 10-3842
Coffman v. Ford Motor Company


and the other citing “EEG & other testing [and] petite mall [sic] seizures” as justification for her

leave. R. 35-1 (Coffman Dep. Ex. 32–33). Neither form provided any additional medical facts to

support the diagnoses. After reviewing the documents, Dr. Lin, who was responsible for evaluating

the sufficiency of medical certifications, made an initial determination that the forms were medically

insufficient to justify FMLA leave. His conclusion was based on two observations: (1) the divergent

diagnoses for the same period, which left him unable to discern “what medical condition (if any)

actually prevented [Coffman] from working from March 16 through March 22,” R. 39-2 (2d Supp.

Decl. of Dr. Chun-I John Lin ¶ 10); and (2) the obvious discrepancy between the physician signatures

on those certifications and the signatures on previous certifications.

       Coffman argues that in light of Dr. Lin’s determination, Ford was obligated to request in

writing the additional information needed to support her request for medical leave before Ford could

issue a blanket denial. Although that obligation exists in most cases, it does not apply here.

       The 2004 version of the regulations stated that “[t]he employer shall advise an employee

whenever the employer finds a certification incomplete, and provide the employee a reasonable

opportunity to cure any such deficiency.” 29 C.F.R. § 825.305(d) (2004) (emphasis added).5 Our

cases have consistently enforced this requirement, reaffirming employers’ affirmative duty to seek

additional information when they have notice of an employee’s potential need for FMLA leave but

are faced with an incomplete medical certification. See, e.g., Novak v. MetroHealth Med. Ctr., 503



       5
        Coffman asserts that the notice had to be in writing. Unlike the current regulation, the 2004
version contained no such requirement.

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No. 10-3842
Coffman v. Ford Motor Company


F.3d 572, 579 (6th Cir. 2007); Sorrell v. Rinker Materials Corp., 395 F.3d 332, 337 (6th Cir. 2005);

Hoffman v. Prof’l Med Team, 394 F.3d 414, 418 (6th Cir. 2005). But incomplete certifications are

distinguishable from invalid ones. See Verkade v. U.S. Postal Serv., 378 F. App’x 567, 574 (6th Cir.

2010) (unpublished opinion). A valid certification “must show that the employee’s serious health

condition makes her unable to perform job functions.” Hoffman, 394 F.3d at 419. Although

certifications that contain all required information6 are presumptively valid, an employer can rebut

the presumption of sufficiency by demonstrating that a certification is invalid, contradictory, or of

an otherwise suspicious nature. Novak, 503 F.3d at 578. If the certification is invalid on its face,

that in some cases may be enough for an employer to deny FMLA leave without engaging in further

inquiry. Verkade, 378 F. App’x at 574.

       Here, when faced with contradictory, questionable certifications, Dr. Lin sought clarification

by asking Coffman to sign a document requesting that her physician provide any medical records

pertaining to the dates in question. In response to the request, Coffman’s physician provided a single

document, which indicated only a March 17, 2005 date of service, a chief complaint of depression

(not seizures), and a list of medications that actually did not support Coffman’s assertion that her

prescriptions had recently changed. Thus, rather than supporting the forms Coffman had already

submitted, the new information only created new contradictions. Under these circumstances, we do

not think Ford had any further duty to seek information to support Coffman’s leave request. See


       6
        At a minimum, this includes “(1) the date on which the serious health condition commenced;
(2) the probable duration of the condition; [and] (3) the appropriate medical facts within the
knowledge of the health care provider regarding the condition.” 29 U.S.C. § 2613(b).

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No. 10-3842
Coffman v. Ford Motor Company


Novak, 503 F.3d at 578; see also Culpepper v. BlueCross BlueShield of Tenn., Inc., 321 F. App’x

491, 496–97 (6th Cir. 2009) (unpublished opinion) (concluding that a document “of questionable

reliability”—e.g., lacking a date, devoid of detailed medical explanations, and containing only the

signature of a staff member in the physician’s office—“[did] not constitute an acceptable form of

certification of a serious health condition under the FMLA”).7

       3. June 8, 13, 15, and 17–20, 2005

       Coffman’s final argument is that her June absences should have been considered intermittent

FMLA leave because a jury could conclude those absences were based on the same illness—her

newly diagnosed sleep apnea—as the March and April absences. As a result, Coffman argues, Ford

incorrectly determined that she had not worked enough hours to be eligible for FMLA leave because

the eligibility determination should have been made in March rather than June. Coffman, however,

provided no evidence to support any request for intermittent leave, let alone evidence suggesting

Ford granted it. Cf. 29 U.S.C. § 2612(b)(1) (“Leave . . . shall not be taken by an employee

intermittently . . . unless the employee and the employer of the employee agree otherwise.”).



       7
         This is not to say that employers can generally avoid liability by deeming employees’
medical certifications to be facially invalid. Employers facing questionable certifications have two
preferable options: they can require the employee to obtain a second opinion from a different
provider at the employer’s expense or, after granting the employee an opportunity to correct any
shortcomings, they can obtain the employee’s permission to clarify or authenticate a questionable
certification with the original health-care provider. 29 C.F.R. § 825.307(a)–(b) (2010); see also 29
U.S.C. § 2613(c). Although these measures are discretionary, see Sorrell, 395 F.3d at 337, utilizing
them would avoid the factual disputes and questions of reasonableness that conceivably arise from
an employer’s decision to classify an FMLA request as facially invalid without first working with
the employee to resolve any discrepancies.

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No. 10-3842
Coffman v. Ford Motor Company


Coffman’s eligibility for FMLA leave in March therefore had no bearing on her later eligibility, and,

because the evidence is clear that Coffman was ineligible for FMLA leave in June due to insufficient

hours, these absences do not support her retaliation claim. See Staunch, 511 F.3d at 631 (holding

that because the evidence was clear that the plaintiff had not worked the 1,250 hours required to be

an “eligible employee,” her FMLA claims failed as a matter of law).

B. NO EVIDENCE OF DISCRIMINATORY INTENT

        In addition to being unable to show a material dispute as to her individual AWOL

occurrences, Coffman has presented no evidence to suggest that Ford harbored any discriminatory

intent. See Bryson, 498 F.3d at 570 (observing that despite the shifting burdens of production, the

plaintiff never relinquishes the “burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff” (emphasis added) (internal quotation marks omitted)); see also

Chen, 580 F.3d at 400 n.4 (“[A]t bottom, the question is always whether the employer made up its

stated reason to conceal intentional discrimination.” (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 515 (1993) (“[A] reason cannot be proved to be a ‘pretext for discrimination’ unless it is shown

both that the reason was false, and that discrimination was the real reason.” (alteration in original))).

        To support her assertion that the evidence demonstrates an ulterior motive on Ford’s part,

Coffman points to manufactured inconsistencies, but produces no real evidentiary support.

Moreover, our independent review of the record actually cuts against Coffman’s argument that the

AWOL occurrences were not the real reason for her termination. Although far from dispositive,

Coffman conceded that no one so much as suggested that her termination was related to her FMLA


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No. 10-3842
Coffman v. Ford Motor Company


leave. Nor does the record suggest that any of her supervisors ever complained about any of the

eighty-six legitimate leave days she had taken. Finally, when it came to her unsubstantiated

absences, the record indicates that Ford treated her no differently than any other employee who

neglected to submit timely certification. See R. 25 (Howard Dep. at 43–44) (indicating that

Coffman’s Union representative had no reason to believe Ford treated Coffman less favorably

because she had taken medical leave and reiterating that Ford was strict with all of its employees in

enforcing its requirement that they submit certification for FMLA or CBA leave in a “timely

fashion”). Viewed in its entirety, this evidence—and particularly Coffman’s inability to point to any

facts that could suggest an alternative explanation for Ford’s actions—simply does not support the

proposition that Ford’s asserted reason for terminating Coffman was pretextual, and we cannot say

that the district court erred in granting Ford’s motion for summary judgment on the merits.

                                       III. CONCLUSION

       For the reasons discussed above, we conclude that Coffman failed to establish that Ford’s

reason for terminating her was pretextual. Therefore, we AFFIRM the district court’s judgment.




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