                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0224n.06

                                           No. 17-6066

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

JUSTIN SLUSHER,                                          )                        FILED
                                                         )                      Apr 30, 2018
       Plaintiff-Appellant,                              )                 DEBORAH S. HUNT, Clerk
                                                         )
v.                                                       )       ON APPEAL FROM THE
                                                         )       UNITED STATES DISTRICT
UNITED STATES POSTAL SERVICE,                            )       COURT FOR THE EASTERN
                                                         )       DISTRICT OF KENTUCKY
       Defendant-Appellee.                               )
                                                         )
                                                         )



       Before: GIBBONS, BUSH, and LARSEN, Circuit Judges.

       LARSEN, Circuit Judge. Justin Slusher sued the United States Postal Service, claiming it

had interfered with his Family and Medical Leave Act (FMLA) rights, retaliated against him for

taking FMLA leave, and constructively discharged him. After a bench trial, the district court

found for USPS on all claims. Slusher appeals that decision, arguing that the district court erred

in finding that he had not established his retaliation claim. We affirm.

                                                 I.

       Slusher began working for the United States Postal Service in 1994. In 2011, Slusher

became the manager of customer services at the Dixie Branch office, which was a permanent,

level-20 position. Elaine Huhn was Slusher’s direct supervisor while he held that position.

While Slusher was at the Dixie Branch, employees filed two grievances against him alleging that

he had created a hostile work environment. The first grievance was filed by one employee, and
No. 17-6066
Justin Slusher v. United States Postal Service

the second was filed jointly by twenty-nine employees. USPS resolved the first grievance

without disciplining Slusher.     Two USPS administrative managers investigated the second

grievance.

       While the second grievance was pending, USPS assigned Slusher to a temporary detail as

officer in charge of the Batavia Branch office, a level-21 position. While working at that branch,

Slusher went on leave from May 30 until August 10, 2014. He emailed Brandy Seanor, his

supervisor at the Batavia Branch, on May 30 to tell her that he “w[ould] be off until further

notice pending seeing a doctor.” He attached a form requesting sick leave beginning May 30

with no specified end date. Later that day, Slusher separately submitted a request for FMLA

leave, which was processed by the USPS FMLA office in Greensboro, North Carolina. That

office approved all but the last week of Slusher’s leave under the FMLA.

       On June 30, the managers investigating the second grievance reported their findings.

Deborah O’Neal, the USPS human resources administrator, asked for an outside group to

perform an additional investigation. On August 7, after discussions with O’Neal and David

Caproni, the executive plant manager at the Cincinnati Processing and Distribution Center,

Edward Harants, the area’s senior operations manager, called and emailed Slusher to tell him to

report to the Cincinnati plant beginning on August 11 because he was being temporarily

reassigned to work there as an operations support specialist, a level-17 position. Because that

was a temporary position, USPS continued to pay Slusher a level-20 salary. Slusher reported to

the plant as instructed and, in October, accepted a voluntary downgrade to a level-17 position as

the supervisor of transportation operations at the facility.

       Meanwhile, in November, USPS concluded its review of the second Dixie Branch

grievance. USPS issued Slusher a warning letter regarding his workplace conduct but did not


                                                 -2-
No. 17-6066
Justin Slusher v. United States Postal Service

suspend him.      Slusher initially appealed the letter, but he resigned from USPS and began

working for DHL in February 2015, before USPS heard his appeal.

       Slusher then sued USPS. He alleged that USPS had interfered with his FMLA rights by

not approving his final week of leave, had retaliated against him for taking FMLA leave by

demoting him to the level-17 position at the plant, and had created conditions that constructively

discharged him.

       After a bench trial, the district court found that USPS had not interfered with Slusher’s

rights by failing to approve his request for FMLA leave for August 4 through 8 because Slusher

had not provided the required documentation for that period. The district court also found that

Slusher had not proved his retaliation claim because he had not shown that “the employees who

took action in his case knew of his FMLA leave.” The district court also said that, even

assuming Slusher had shown that the employees who made the decision knew about his FMLA

leave, Slusher had failed to show that USPS took adverse action against him by placing him on

temporary detail to a level-17 position but continuing to pay him as a level-20 employee.

Furthermore, the district court said that the retaliation claim failed because, even assuming the

employees knew of his leave and took adverse action against him, Slusher had not shown that

USPS’s justification for the temporary assignment and the disciplinary letter—the grievances

filed against Slusher at Dixie Branch—was a pretext for discriminating against him for taking

FMLA leave. Finally, the district court said that Slusher’s constructive discharge claim failed

because he had not proved “that he was subjected to intolerable working conditions before




                                                 -3-
No. 17-6066
Justin Slusher v. United States Postal Service

leaving.” On appeal, Slusher challenges only the district court’s findings related to his retaliation

claim.1

                                                 II.

          To establish an FMLA retaliation claim, Slusher must show that: (1) he was engaged in

FMLA-protected activity; (2) his employer knew that he was exercising his FMLA rights; (3) he

suffered an adverse employment action; and (4) “there was a causal connection between the

protected FMLA activity and the adverse employment action.” Killian v. Yorozu Auto. Tenn.,

Inc., 454 F.3d 549, 556 (6th Cir. 2006). The district court found, and neither party contests, that

Slusher’s approved FMLA leave from May 30 to August 3, 2014, was statutorily protected

activity. Slusher contests the district court’s finding that he did not show the remaining elements

of his claim.

          Slusher argues that the district court erred in finding that his employer did not know he

was exercising his FMLA rights when it took the allegedly adverse action of temporarily

reassigning him to the Cincinnati plant. Because that is a factual question, we review the district

court’s finding for clear error. Fed. R. Civ. P. 52(a); Hoffman v. Prof’l Med Team, 394 F.3d 414,

417 (6th Cir. 2005). The district court commits clear error when “the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed.”

Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S.

Gypsum Co., 333 U.S. 364, 395 (1948)). “Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.”             Id. at 574.

1
  In his reply brief, Slusher attempts to revive his FMLA interference claim, arguing that, even if
the decisionmakers were not aware of his FMLA status, that would not defeat his FMLA
interference claim, which does not require any showing of motive. In his opening brief,
however, Slusher challenged only the retaliation claim; he cannot raise an issue related to his
interference claim for the first time in his reply brief. See Eagle Supply & Mfg., L.P. v. Bechtel
Jacobs Co., 868 F.3d 423, 429 n.1 (6th Cir. 2017).
                                                 -4-
No. 17-6066
Justin Slusher v. United States Postal Service

“[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of two or

more witnesses, each of whom has told a coherent and facially plausible story that is not

contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never

be clear error.” Id. at 575. We review any legal conclusions de novo. T. Marzetti Co. v. Roskam

Baking Co., 680 F.3d 629, 633 (6th Cir. 2012).

       Slusher’s claim fails. Although Slusher notes that USPS had institutional knowledge of

his FMLA status, Slusher had to prove that the decisionmakers involved in the determination to

temporarily transfer him to the Cincinnati plant had knowledge of his FMLA status. Mulhall v.

Ashcroft, 287 F.3d 543, 551–52 (6th Cir. 2002); see Scott v. Eastman Chem. Co., 275 F. App’x

466, 482 (6th Cir. 2008).2 He failed to do so.

       The district court found that O’Neal, Caproni, and Harants made the decision to

temporarily reassign Slusher. Slusher makes no argument that either O’Neal or Caproni knew of

his status. Slusher alleges that he told Harants that he was on FMLA leave over the phone and in

writing. The district court, however, credited Harants’s testimony that he did not know about

Slusher’s status until after he had informed Slusher on August 7 that Slusher was being

temporarily reassigned to the level-17 position at the Cincinnati plant. And Slusher’s only

documentary proof—an email Slusher sent to Harants that mentioned Slusher’s “certified FMLA

case”—was sent on August 7 after Harants had called and emailed Slusher to notify him of the

temporary reassignment.3 Slusher essentially asks this Court to believe his testimony over



2
  Although these cases arise under Title VII, rather than under the FMLA, “[w]e have often
relied on Title VII precedent to analyze FMLA retaliation claims.” Hunter v. Valley View Local
Sch., 579 F.3d 688, 691 (6th Cir. 2009).
3
  When Harants sent Slusher the disciplinary letter in November, Harants did know about
Slusher’s FMLA leave. But Slusher makes no argument on appeal that the letter constituted an
adverse employment action. Instead, Slusher argues only that the temporary reassignment to the
                                                 -5-
No. 17-6066
Justin Slusher v. United States Postal Service

Harants’s, but “[our] function is not to decide factual issues de novo.” Anderson, 470 U.S. at 573

(quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969)). Instead, we

owe great deference to the trial court’s factual determinations, particularly when they rest on its

assessment of the credibility of witnesses. Id. at 574–75.

       Slusher also asserts that Seanor and Huhn knew of his FMLA leave. But, regardless of

the conflicting testimony regarding their knowledge, Slusher makes only a conclusory assertion,

with no record support, that the two women were involved in the decision to temporarily reassign

him to the Cincinnati plant. That is not sufficient for us to find that the district court, which

heard the witnesses and considered the evidence, clearly erred in finding that they were not

among the decisionmakers.

       The district court determined that Slusher had failed to show that the USPS employees

who made the allegedly adverse decision to temporarily reassign him to the Cincinnati plant

knew about his FMLA leave when they made that decision.                We cannot say that this

determination was clearly erroneous.4 Slusher’s FMLA retaliation claim, therefore, fails.

                                                 ***

       We affirm the district court’s judgment.




level-17 position was a retaliatory adverse employment action, so Harants’s knowledge when he
made that decision is the only fact relevant to our inquiry.
4
  We need not and do not, therefore, reach the other two arguments that Slusher raises on appeal
regarding his retaliation claim.
                                                 -6-
