                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0481n.06

                                         Case No. 18-2444

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                     FILED
 KEVIN LABELLE,                                    )                           Sep 13, 2019
                                                   )                       DEBORAH S. HUNT, Clerk
          Plaintiff-Appellant,                     )
                                                   )          ON APPEAL FROM THE UNITED
 v.                                                )          STATES DISTRICT COURT FOR
                                                   )          THE WESTERN DISTRICT OF
 CLEVELAND CLIFFS, INC.,                           )          MICHIGAN
                                                   )
          Defendant-Appellee.                      )                       OPINION
                                                   )



BEFORE: ROGERS, GRIFFIN, and NALBANDIAN, Circuit Judges.

       NALBANDIAN, Circuit Judge. After working for about a decade as a quality-control lab

technician at Cleveland Cliffs, Inc.’s mining operation in Michigan, Kevin LaBelle was fired.

LaBelle claims that, by firing him, Cliffs interfered with, and retaliated against him for, his use of

the Family and Medical Leave Act (“FMLA”), under which LaBelle was entitled to intermittent

leave because of severe shoulder pain. Cliffs argues that it terminated him not for use of leave,

but for abuse of leave: LaBelle repeatedly stacked his FMLA leave with scheduled vacation days

and at least twice used his FMLA leave to play golf. LaBelle agrees that he did these things. But

he argues that this does not constitute abuse. So LaBelle sued Cliffs, bringing claims for

interference and retaliation under the FMLA and violation of Michigan’s Persons with Disabilities

Civil Rights Act. The district court merged the interference and retaliation claims under the
No. 18-2444, LaBelle v. Cleveland Cliffs, Inc.


retaliation framework and then dismissed the remaining two claims on summary judgment.

We affirm.

                                                 I.

       Kevin LaBelle worked as a quality-control lab technician at Cleveland Cliffs’ northern

Michigan mining company from 2007 to 2017. His job required him to pour and weigh mined

materials. That meant he made repetitious motions while standing with his arms outstretched in

front of him, sometimes up to twelve hours a day.

       LaBelle has avascular necrosis—disruption of blood flow to the bones that causes bone

deterioration—which leads to “severe wearing and deformation of the joint.” (DE 19-2, Ex. 1,

LaBelle Aff., Page ID 230.) At first, it affected his hips, and in 2012 he had both hips replaced.

A few years later, the issue reached his shoulders. Thus, LaBelle suffers “constant pain” in his

shoulders as well as more concentrated “shooting pain” that “feels like almost part of [his] bicep

muscle is almost kind of pulling off.” (DE 14-1, Ex. A, Arbitration Tr., Page ID 79.) LaBelle

contends that his shoulder pain is exacerbated by “anything that is kind of arms up for a long period

of time.” (Id.) For example, he can no longer use a snowblower without triggering pain.

       In 2016, LaBelle received two “counseling and correction notices” for absenteeism at

work. (DE 14-1, Ex. A, Arbitration Tr., Page ID 66.) During the second counseling session,

LaBelle explained that “the missed days were due to [his] shoulder pain” and Cliffs’ management

responded that he should “check into getting FMLA.” (DE 16-5, Ex. E, LaBelle Statement, Page

ID 181.) LaBelle therefore applied for intermittent FMLA leave in May 2016. Cliffs, however,

denied the request. In its denial, Cliffs explained that it could not grant FMLA leave because the

information LaBelle provided did not show that he was incapacitated for more than three calendar

days at a time or that he had a chronic condition that required treatment at least twice a year.




                                                  2
No. 18-2444, LaBelle v. Cleveland Cliffs, Inc.


       In August, using a different certifying doctor, LaBelle reapplied for intermittent FMLA

leave. His doctor wrote that LaBelle “intermittently will have exacerbations that limit work” and

that it was medically necessary for LaBelle to miss work during “flare-ups,” which would occur

about once a month for three-day periods. (DE 15-5, Ex. E, FMLA Request, Page ID 150–51.)

Cliffs approved the request. It notified LaBelle that he was entitled to FMLA leave for up to four

medical appointments per year and for monthly flare-ups, which could last up to three days per

episode. The letter noted that LaBelle’s FMLA leave was “limited to the condition specified in

[his] certification” and that “[i]mproper use or abuse of intermittent leave is grounds for discipline,

up to and including termination.” (DE 15-6, Ex. F, Letter, Page ID 154.)

       Over the next year, Cliffs “detect[ed] a suspicious pattern” in LaBelle’s use of FMLA

leave: LaBelle repeatedly combined his FMLA days with scheduled days off and vacation days.

(DE 14-1, Ex. A, Arbitration Tr., Page ID 67.) For example, in March 2017, LaBelle used three

FMLA days (March 22-24) in between scheduled days off and vacation days (March 21 and March

25-April 5). Similarly, in June 2017, after using a combination of sick days, vacation days, and

scheduled days off (June 7-18), LaBelle used FMLA leave (June 19-21).

       Suspicious that LaBelle was abusing his FMLA leave, Cliffs hired a private investigator to

surveil LaBelle twice when he took FMLA leave—June 20 and July 11—both Tuesdays, when his

golf league played. Both times, the investigator recorded LaBelle playing golf. Cliffs manager

Troy Sarles watched the surveillance videos and determined that “LaBelle’s golf game appeared

unimpaired” as “[h]e moved without hesitation and his golf swing was both smooth and powerful”

and he golfed “without any sign of distress or discomfort.” (DE 16, Troy Aff., Page ID 156–57.)

       After reviewing the surveillance material, Cliffs notified LaBelle that it suspected he was

engaged in fraud and abuse of FMLA. Cliffs allowed LaBelle to request a hearing in which he




                                                  3
No. 18-2444, LaBelle v. Cleveland Cliffs, Inc.


could explain his behavior and potentially avoid discipline. Meanwhile, the company placed him

on “administrative, paid leave pending the outcome of the investigatory hearing.” (Id. at 157.)

       On August 3, LaBelle attended the hearing. First, he addressed the suspicious pattern of

combining FMLA days with other days off, explaining that because his “shoulders hurt every day,

[he] was of the understanding these days were available for [him] to use at a time of [his] choosing”

and that he “often attached them to a weekend in order to receive the most time for relief from the

repetitious work that creates the pain.” (DE 16-5, Ex. E, LaBelle Statement, Page ID 181.)

Second, he addressed the golf issue. LaBelle explained that “[g]olfing is much less aggravating

than the full shift of repetitious work required by working in the lab.” (Id.) LaBelle later

expounded that “long sustained periods of repetitious motions creates way more pain than just a

quick swing” because “80 percent of your swing is legs and core,” rather than shoulder action.

(DE 14-1, Arbitration Tr., Page ID 80.) In his affidavit, LaBelle similarly attested that he could

“golf freely without causing any issue to [his] condition,” as golfing did not cause pain that his

work’s “repetitive and stationary motion” created. (DE 19-2, LaBelle Aff., Page ID 230.)

       Following the hearing, Cliffs’ management convened. They “agreed that if Mr. LaBelle

was experiencing a shoulder flare-up that prevented him from working, he would not be able to

golf and that if he could golf, he could work.” (DE 16, Troy Aff., Page ID 158.) So on August

15, they fired him. In his termination letter, they wrote they fired him because of “fraud and abuse

of FMLA leave due to intentionally misleading the company regarding [his] absences.” (DE 16-

6, Termination Letter, Page ID 183.) Cliffs further noted that it was “unable to conclude that

[LaBelle’s] absences from work on June 19-21 and July 11-12 were medically necessary” because

“[t]here [was] no evidence to suggest that [LaBelle was] suffering from a flare-up on either

occasion or even that [he] had been working so much [he] needed a break.” (Id. at 184.)




                                                 4
No. 18-2444, LaBelle v. Cleveland Cliffs, Inc.


       The next day, LaBelle filed a grievance. He claimed that Cliffs wrongfully discharged him

without just cause.1 On November 8, LaBelle and Cliffs entered arbitration; the arbitrator found

that Cliffs had just cause to terminate LaBelle and denied his grievance. In his opinion, the

arbitrator concluded that LaBelle “routinely used his leave time to cover days off when he was

able to work, which constituted misuse.” (DE 16-7, Arbitration Op., Page ID 194–95.) He noted

that “[i]n making that assessment, what may have tipped the balance was [LaBelle’s] use of FMLA

leave time to play golf” as “[t]his is simply not consistent with a claimed inability to work or, even

under [LaBelle’s] explanation, a need to rest his shoulders from the rigors of his job.” (Id. at 195.)

Thus, the arbitrator found, “the Company had just cause for discharge.” (Id.)

       LaBelle disagreed. He filed a three-count complaint in the Western District of Michigan.

He alleged that the company: (1) interfered with his right to take leave under the FMLA by

consistently following him and seeking to fire him without good cause; (2) discriminated or

retaliated against him for using FMLA leave by terminating him; and (3) violated the Michigan

Persons with Disabilities Civil Rights Act by terminating him because of his use of leave. To

show Cliffs’ discriminatory animus, LaBelle pointed to internal communications among

management. For example, in an email chain from May 11, 2017, in response to a request for the

spreadsheet documenting LaBelle’s absences, Area Manager Scott Rasmussen wrote: “Does this

mean that you’re actually discussing this hot potato?” (DE 19-10, Email, Page ID 260.) In another

internal email, Rasmussen wrote that he had “[b]een keeping an eye on a few of [their] folks and

mapping out their absences” and that he would “dearly love to get at least one of these slackers.”


1
 Not challenged on appeal, LaBelle also claimed that Cliffs improperly denied him “Justice and
Dignity.” The Arbitrator agreed with LaBelle, writing that LaBelle was “not guilty of fraud
because he received profit-sharing payments that included FMLA time” and that LaBelle therefore
“was improperly denied Justice and Dignity.” DE 16-7, Arbitration Op., Page ID 194. LaBelle
does not raise this issue on appeal.


                                                  5
No. 18-2444, LaBelle v. Cleveland Cliffs, Inc.


(DE 19-9, Email, Page ID 246.) Thus, LaBelle contended that Cliffs “wanted to terminate [him]

based on his disability and his use of FMLA leave.” (DE 1, Compl., Page ID 3.)

       After conducting some discovery, Cliffs filed a motion for summary judgment in May

2018. The district court granted it in full. First, the district court found that “[w]hile LaBelle has

presented his interference and retaliation claims as stand-alone causes of action, it is apparent to

the Court that the essence of his claim is retaliation, not interference with substantive FMLA rights,

so his FMLA claims should be merged and analyzed under the retaliation framework.” (DE 36,

Op. and Order, Page ID 299 (internal quotation marks and citation omitted).) Thus, the district

court declined to analyze LaBelle’s claims under the interference framework. Applying the

McDonnell-Douglas burden-shifting framework to the retaliation claim, the district court found

that although LaBelle established a prima facie case of FMLA retaliation, Cliffs articulated a

legitimate and nondiscriminatory reason for terminating LaBelle: fraud and abuse of FMLA leave.

The district court then determined that because LaBelle did not demonstrate that Cliffs’

justification was pretextual, Cliffs was entitled to summary judgment on the FMLA claim. Last,

the district court decided that LaBelle’s state-law claim failed for the same reason. Thus, the

district court dismissed the case with prejudice. LaBelle timely appealed the district court’s

dismissal of the federal law claims.

                                                 II.

        This court reviews de novo a district court’s grant of summary judgment. Seeger v.

Cincinnati Bell Tel. Co., 681 F.3d 274, 281 (6th Cir. 2012). Summary judgment is appropriate

only when there is no genuine issue of material fact and the moving party is entitled to judgment

as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986) (citing Fed. R. Civ. P.

56(c)). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict




                                                  6
No. 18-2444, LaBelle v. Cleveland Cliffs, Inc.


for the nonmoving party,” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986), and a fact is

“deemed material only if it might affect the outcome of the lawsuit under the governing substantive

law.” Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015). In considering a motion for summary

judgment, this court considers “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits,” and draws all reasonable inferences in favor of

the nonmoving party. Nat’l Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir. 1997). Thus, “[t]he

central issue is whether the evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of law.” Sommer v. Davis,

317 F.3d 686, 690 (6th Cir. 2003) (internal citations omitted).

                                                 III.

       On appeal, LaBelle raises three arguments. First, he contends that the district court erred

when it merged his interference and retaliation claims under the FMLA. Second and third,

respectively, he argues that the district court erred in granting summary judgment for Cliffs on the

interference and retaliation claims under the FMLA. LaBelle does not challenge the district court’s

disposition of the state-law claim. We find LaBelle’s arguments unpersuasive and affirm the

district court’s grant of summary judgment for Cliffs.

                                                 A.

       The FMLA entitles an employee with a “serious health condition that makes the employee

unable to perform the functions” of his position to twelve weeks of leave per year, which can be

taken intermittently or on a reduced leave schedule. 29 U.S.C. §§ 2612(a)(1)(D), (b)(1). Upon

returning from FMLA leave, the employer must reinstate the employee to his position or an

equivalent position with regard to pay, benefits, and other conditions of employment.            Id.

§ 2614(a)(1)(A)–(B). The Act prohibits an employer from interfering with an entitled employee’s




                                                  7
No. 18-2444, LaBelle v. Cleveland Cliffs, Inc.


use of FMLA leave (interference or entitlement theory), see id. § 2615(a)(1), or retaliating against

an employee who exercises his rights under the Act (retaliation or discrimination theory), see id.

§ 2615(a)(2).    The Act provides a private cause of action for aggrieved employees.              Id.

§ 2617(a)(1).

                                                 1.

       LaBelle argues that the district court erred when it merged LaBelle’s interference and

retaliation claims and evaluated them under only the retaliation framework. In explaining the

merger, the district court wrote that “[w]hile LaBelle has presented his interference and retaliation

claims as stand-alone causes of action, it is apparent to the Court that the essence of his claim is

retaliation, not interference with substantive FMLA rights.” (DE 36, Op. and Order, Page ID 299

(internal quotation marks and citation omitted).) LaBelle contends that the district court should

have independently analyzed the interference claim, as Cliffs interfered with his right to FMLA

leave by being “hostile toward [him] when he would call in for his FMLA leave[,]” making “it

very clear that it did not approve of LaBelle’s taking the intermittent leave in question,” and

ultimately terminating his employment. (CA6 R. 14, Appellant Br., at 19.) We disagree.

       Under the interference theory, an employer violates the FMLA when it “interfere[s] with,

restrain[s], or den[ies] the exercise of or the attempt to exercise” FMLA rights. 29 U.S.C.

§ 2615(a)(1). To prevail on an interference claim, an employee must prove: (1) he was an FLMA-

eligible employee, (2) the defendant was an “employer” as defined under the FMLA, (3) he was

entitled to FMLA leave, (4) he gave the employer notice of his intention to take leave, and (5) the

employer denied the employee FMLA benefits to which he was entitled. Wallace v. FedEx Corp.,

764 F.3d 571, 585 (6th Cir. 2014). Thus, “[t]he issue is simply whether the employer provided its

employee the entitlements set forth in the FMLA—for example, a twelve-week leave or




                                                 8
No. 18-2444, LaBelle v. Cleveland Cliffs, Inc.


reinstatement after taking a medical leave.” Arban v. West Publ’g Corp, 345 F.3d 390, 401 (6th

Cir. 2003) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998)). LaBelle

does not dispute that he received all the FMLA leave he requested. His claim, then, is not one of

interference.

        But several internal company emails show hostility toward his use of leave, he argues,

which “made it very clear that [Cliffs] did not approve of” what he did. Although Cliffs might

have been hostile, internally, to LaBelle’s use of leave, there is no evidence that he saw these

emails during his employment or that they otherwise “affected or otherwise interfered with [his]

FMLA use.” (CA6 R. 16, Appellee Br., at 13.) So even if the emails suggest frustration with

LaBelle’s absences, they do not show any interference with, or denial of, LaBelle’s entitled leave.

        Alternatively, LaBelle contends that Cliffs interfered with his FMLA rights by ultimately

terminating his employment. But in Seeger, this court explained that it is proper to confine analysis

to the retaliation framework when the aggrieved employee receives all FMLA leave to which he

is entitled and is terminated after he returns from leave. 681 F.3d at 283 (analyzing interference

and retaliation claims under only the retaliation framework). For example, in Seeger, this court

limited its analysis to the retaliation theory when the employee received all the FMLA leave to

which he was entitled, resumed his normal work routine after taking leave, and then was terminated

three weeks later. See id. In doing so, this court looked to the Eighth Circuit’s decision in Stallings,

when the court found that the employee’s claim was “fundamentally a claim for retaliation and

should be analyzed as such” where the employer granted the employee’s requests to take FMLA

leave, did not “impede[]” the employee’s use of FMLA leave, and “only after [the employee]

returned from FMLA leave . . . question[ed] whether [he] fraudulently used his FMLA leave and

fire[d] [him].” Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir. 2006). Given that




                                                   9
No. 18-2444, LaBelle v. Cleveland Cliffs, Inc.


LaBelle received all the FMLA leave he requested and was terminated afterward for suspected

fraud, the district court correctly found that “the essence” of LaBelle’s claim is retaliation, not

interference. (CA6 R. 36, Op. and Order, Page ID 299 (quoting Seeger, 681 F.3d at 282).) Thus,

the district court properly merged the two claims under the retaliation framework.

                                                 2.

       LaBelle argues that the district court erred when “it failed to find that [Cliffs] retaliated

against [him] for taking leave under the FMLA.” (CA6 R. 14, Appellant Br., at 27.) The district

court granted summary judgment for Cliffs on the retaliation claim after finding that LaBelle “has

not proffered evidence from which a reasonable juror could conclude that Cliffs bore a

discriminatory animus towards him for his use of FMLA leave; the only rational conclusion that

can be drawn from the evidence is that Cliffs discharged LaBelle for his abuse of the FMLA

system.” (DE 36, Op. and Order, Page ID 304.) We agree that Cliffs is entitled to summary

judgment on the retaliation claim and therefore affirm.

       Under the retaliation theory, an employer is prohibited from “discriminating against

employees[,]” which includes “retaliatory discharge for taking leave.” Marshall v. The Rawlings

Co., 854 F.3d 368, 376 (6th Cir. 2017) (quoting Arban, 345 F.3d at 403). When an FMLA

retaliation claim is based on indirect evidence, the McDonnell-Douglas burden-shifting analysis

applies. Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006) (“This court applies the

familiar burden-shifting test articulated in McDonnell Douglas . . . to retaliation claims under the

FMLA.”); see generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishing

the analytical framework for discrimination claims under Title VII). First, LaBelle must establish

a prima facie case of retaliation under the FMLA by showing that (1) he engaged in a statutorily

protected activity; (2) Cliffs knew that he was exercising his FMLA rights; (3) he suffered an




                                                 10
No. 18-2444, LaBelle v. Cleveland Cliffs, Inc.


adverse employment action; and (4) there was a causal connection between the protected FMLA

activity and the adverse employment action. Seeger, 681 F.3d at 284. At this stage, the burden of

proof is “minimal,” as all LaBelle must do is “put forth some credible evidence that enables the

court to deduce that there is a causal connection between the retaliatory action and the protected

activity.” Id. at 283 (quoting Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007)). If LaBelle

establishes a prima facie case, he raises a presumption of discrimination. Id. at 285. The burden

then shifts to Cliffs to articulate a nondiscriminatory basis for the adverse action and thus rebut the

presumption. Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012).

       If Cliffs articulates a nondiscriminatory reason for its actions, the burden shifts back to

LaBelle to show that Cliffs’ justification is pretext for retaliation. Seeger, 681 F.3d at 285. LaBelle

may show pretext by showing that the proffered reason (1) had no basis in fact; (2) did not actually

motivate the action; or (3) was insufficient to warrant the action. Id. On appeal, the parties agree

that whether LaBelle gets to a jury depends on whether he can create a genuine dispute over

pretext. He seeks to take solely the first route, arguing that Cliffs’ proffered reason had no basis

in fact; that is, that he did not abuse his FMLA leave. LaBelle does not argue that he possibly

abused his FMLA leave but that this abuse “did not actually motivate” his termination or that his

abuse could not warrant termination.

       There is no evidence in the record to show that Cliffs’ proffered reason lacked a basis in

fact. Cliffs approved LaBelle’s request for intermittent FMLA leave for two reasons: (1) attending

medical appointments and (2) taking three days off per month for a “flare-up.” Even crediting

LaBelle’s explanation of why it was ok for him to golf, or why he “stacked” his leave, LaBelle did

not take FMLA leave for “flare-ups” or medical appointments. He took FMLA leave because he

was in constant pain and would take leave around vacations or weekends to give himself as much




                                                  11
No. 18-2444, LaBelle v. Cleveland Cliffs, Inc.


rest as possible. But occasional rest to alleviate low-level background pain is not what his FMLA

leave was for. Thus, as the arbitrator put it, “[t]here is no doubt that [LaBelle] did not use his

FMLA leave in accordance with the restrictions imposed by [his doctor], or in accordance with the

purposes of the law.” (DE 16-7, Arbitration Op., Page ID 192.) If LaBelle had constant pain that

required occasional long weekends to mitigate, he should have requested FMLA leave for that

purpose.

        Both LaBelle and Cliffs spend much of their time on appeal arguing about whether Cliffs

had an “honest belief” that LaBelle abused his FMLA leave. When an employee shows pretext

through the first route—that the proffered reason for his termination had no basis in fact—the

employer can respond by demonstrating that it nevertheless had an “honest belief” in the factual

basis for the employee’s termination. See Seeger, 681 F.3d at 285. If, for example, LaBelle had

put forth evidence showing that he did not abuse his FMLA leave, Cliffs could respond by arguing

that it honestly believed LaBelle abused his FMLA leave. Here, however, there is no need to

inquire into Cliffs’ “honest belief,” because LaBelle did not show that Cliffs’ proffered reason had

no basis in fact.

                                                 ***

        We affirm the district court’s judgment.




                                                   12
