                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0350n.06
                                                                                          FILED
                                           No. 09-6284                               May 24, 2011
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

MICHAEL R. CLARK,                                       )
                                                        )
       Plaintiff-Appellant,                             )
                                                        )
v.                                                      )   ON APPEAL FROM THE
                                                        )   UNITED STATES DISTRICT
WALGREEN CO., WALGREEN, DYERSBURG,                      )   COURT FOR THE WESTERN
TENNESSEE, aka Walgreens,                               )   DISTRICT OF TENNESSEE
                                                        )
       Defendants-Appellees.


Before: BATCHELDER, Chief Judge; KEITH and ROGERS, Circuit Judges.

       PER CURIAM. Michael Clark filed an action claiming violations of the Family and

Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., and § 510 of the Employment

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1140, by his former employer,

Walgreen Co. and Walgreen (“Walgreens”). Walgreens moved for summary judgment. The district

court granted Walgreens’ motion for summary judgment and dismissed the action. On appeal, Clark

argues that the district court erred by: (1) analyzing Clark’s FMLA retaliation claim pursuant to the

indirect evidence method rather than the direct evidence method; (2) granting summary judgment

to Walgreens on each of Clark’s claims including (a) FMLA retaliation, (b) FMLA interference, and

(c) a violation of ERISA. For the reasons set forth below, we AFFIRM the district court’s grant

of summary judgment against Clark.




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                                 I. BACKGROUND

The district court aptly summarized the factual background as stated herein:

        Plaintiff Michael Clark began working for Walgreens on or about December
1997. In August 2005, Clark became the manager of the Walgreens retail store
located in Dyersburg, Tennessee. He served in that capacity until his discharge on
or about March 8, 2007. Plaintiff took a medical leave of absence from December
8, 2006 to January 2, 2007 for a heart condition. Plaintiff did not have any additional
flare ups of the heart condition after returning to work. Plaintiff’s treating physician,
Dr. Daniel Fearnow, released Plaintiff to return full-time to his normal duties as a
Store Manger as of January 2, 2007 with a mild decrease in lifting restriction.
Plaintiff disputes this contention and suggests that Dr. Fearnow placed more
extensive lifting restrictions on his return to work.
        After releasing Plaintiff to return to his normal duties, Dr. Fearnow did not
change his opinion or ever indicate to anyone subsequently that Plaintiff was unable
to perform his duties as a store manager for Walgreens. Once Plaintiff was released
by Dr. Fearnow to return to his normal duties, Walgreens returned Plaintiff to the
same position he held before the leave of absence, and he continued to receive the
same salary and benefits and work[] the same schedule as before. Plaintiff’s last
direct supervisor at Walgreens was District Manager (DM) Scott McKillop.
Subsequent to his return to work, Plaintiff did not call McKillop to request an
additional leave of absence. Plaintiff, however, testified that he called the District
Secretary and requested that McKillop call him back. In addition, Plaintiff asserts
that he sent McKillop emails requesting additional leave.
        On or about March 8, 2007, Plaintiff was discharged from Walgreens.
Plaintiff testified that it is his belief that he was fired in retaliation for exercising
rights under FMLA because he called the District Office and asked a secretary to
have Mr. McKillop call him back and sent Mr. McKillop “e-mails” requesting
“leave” but got no response. The Defendant, however, contends that Plaintiff was
fired for falsifying training records [and learning modules], and [for] directing hourly
paid assistant managers to complete their [learning modules] off of the clock.
        Walgreens’ employees are periodically required to complete computer-based
learning modules called People Plus Learning, PPLs, and store managers have the
responsibility to make sure that employees complete their assigned PPLs.
[Walgreens uses PPLs to train employees on such topics] as customer service, how
to operate the photo machine, and basic management skills. Walgreens’ employees
are also required to complete training on legal rules and regulations relating to the
sale of tobacco and pharmaceuticals, among other things. The PPLs at issue here
could be completed in the Dyersburg store in the training room or the main office.
Both a user ID and personalized password were needed to access the system to
perform PPLs. Plaintiff testified that it was a violation of Walgreens’ policy to ask
assistant managers or anyone to work off of the clock and or to falsify a training
record.

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        In February 2007, McKillop received an e-mail from Sharon Messick, an
hourly assistant manager in Walgreens' Dyersburg Store, who complained that
Plaintiff had completed some of her PPLs and had requested that she do her PPLs on
her own time, instead of during scheduled work time. McKillop then spoke to
Messick over the phone and afterwards directed Loss Prevention Supervisor, LPS,
Brian Anderson to go to the Dyersburg Store to investigate Messick's complaint
about the Plaintiff's conduct. In addition, McKillop informed his Regional
Vice-President of Messick's complaint, and the steps that were being taken to
investigate it.
        Anderson, the Loss Prevention Supervisor, went to Dyersburg on February
28, 2007 and interviewed Dennis Yelverton, an hourly assistant manger in the
Dyersburg store, who also provided a voluntary written statement. Yelverton's
statement supported Messick's complaint that Plaintiff allegedly told assistant
managers to get their PPLs done even if they had to be completed on their personal
time off of the clock. The following day, Anderson interviewed Messick and Judy
Smith, a Beauty Advisor at the Dyersburg store, and both Messick and Smith
provided voluntary written statements. Messick stated that Plaintiff did her PPLs,
admitted to her that he had done her PPLs, and instructed her that PPLs needed to be
done by hourly paid assistant managers off the clock if necessary. Anderson printed
off a summary of Messick's completed PPLs for January and February 2007.
        Messick, after reviewing the list, stated that she had only done two of the
forty-four PPLs that were shown as completed. Id. Anderson subsequently drove
to the Walgreens store in Covington and interviewed Store Manager Elise Freeman,
the former Dyersburg store EXA, who also made a voluntary written statement in
which she stated that Plaintiff had admitted to her that he had done PPLs for
employees in the Dyersburg store and that he had told Yelverton that he could
complete his PPLs on his day off at another store. Anderson did a follow up
interview with Freeman a few days later, and she provided a second voluntary
written statement. In the second statement, she described additional information
about Plaintiff doing PPLs for employees and her concerns about his handling of the
1506 Program while she was in the Dyersburg store.
        Anderson reported to McKillop the facts developed during the investigation,
and McKillop spoke with his immediate supervisor, the Regional Vice President,
about the investigation. The decision was made to bring Plaintiff in to the District
Office. McKillop called Plaintiff and asked him to come to the Walgreens' District
Office in Memphis. Plaintiff appeared at the District Office on March 8, 2007 and
was interviewed by Loss Prevention Supervisors Steve Walker and Brian Anderson.
Plaintiff testified that during the interview he was handed a “stack of papers” by
Anderson and was asked to look at them. Anderson and Walker informed McKillop
that Plaintiff admitted during the interview that he had completed PPLs for other
individuals. Plaintiff, however, contends that he never made any such admission.
He denies having completed the alleged PPLs and asserts that McKillop effectuated
his termination due to his health issues and FMLA leave. Plaintiff did, however,


                                         3
        testify that he completed two PPLs for employees who no longer worked at
        Walgreens because the District Trainer said it was okay.
                McKillop consulted with his Regional Vice President as well as the
        Employee Relations Attorney, Glenn Kaun, about the investigation, and the decision
        was subsequently made by McKillop to give Plaintiff the option to resign or be
        terminated. Plaintiff was then given the opportunity to resign in lieu of termination.
        Defendant alleges that Plaintiff stated that he wished to resign and wrote out a
        resignation letter. Plaintiff, however, strongly disagrees with this contention.
        Plaintiff asserts that he was provided with the opportunity to resign, but he refused.
        He felt that he had done nothing wrong. Furthermore, Plaintiff asserts that he was
        told directly by McKillop that he should resign due to his health. McKillop,
        however, testified that he did not make any statements concerning Plaintiff’s health
        during the termination meeting nor did Walker or Anderson. Plaintiff was advised
        by McKillop that he would be able to continue his insurance through COBRA if he
        chose do so, and Plaintiff was given the opportunity to continue his health insurance.
                On or about two weeks after Plaintiff’s employment ended with Walgreens,
        Defendant asserts that Plaintiff called Anderson and informed him that Scott
        Hamblin, a Store Manager, had showed him how to do PPLs for other employees.
        Plaintiff, however, disputes this contention. As a result of Plaintiff’s call, Anderson
        conducted an investigation of Hamblin, but no evidence was found to suggest that
        Hamblin was completing PPLs for employees.

                                   II. STANDARD OF REVIEW

        This Court reviews a district court’s grant of summary judgment de novo. White v. Baxter

Healthcare Corp., 533 F.3d 381, 389 (6th Cir. 2008). Summary judgment is proper “if the

pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when there are “disputes over facts that

might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). However, “[w]here the record taken as a whole could not lead a rational trier

of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank of Arizona v. Cities

Servs. Co., 391 U.S. 253, 289 (1968)).


                                                   4
       At the summary judgment stage, the moving party bears the initial burden of identifying

those parts of the record which demonstrate the absence of any genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, if the moving party seeks summary

judgment on an issue for which it does not bear the burden of proof at trial, the moving party may

meet its initial burden by showing that “there is an absence of evidence to support the nonmoving

party’s case.” Id. at 325. When the moving party has carried forward this burden, “its opponent

must do more than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita, 475 U.S. at 586. The non-moving party may not rest upon its mere allegations or

denials of the adverse party's pleadings, but rather must set forth specific facts showing that there

is a genuine issue for trial. Id. The non-moving party must present significant probative evidence

in support of its opposition to the motion for summary judgment. Moore v. Philip Morris Co., 8

F.3d 335, 339-40 (6th Cir. 1993).

       After the parties have presented the evidence, “the judge’s function is not himself to weigh

the evidence and determine the truth of the matter but to determine whether there is a genuine issue

for trial.” Anderson, 477 U.S. at 249. In evaluating the evidence, the court must draw all inferences

in the light most favorable to the non-moving party. Matsushita, 475 U.S. at 587. However, “the

mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be

insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury

could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.



                                         III. ANALYSIS




                                                 5
       Clark contends that his termination was actually retaliation for his usage of FMLA. Clark

also asserts that Walgreens unlawfully prevented him from utilizing additional FMLA and violated

his ERISA rights. The district court found no genuine issue of material fact existed sufficient to

preclude summary judgment as to each of Clark’s claims.

A. FMLA Retaliation

1.     Direct Evidence

       To survive summary judgment, Clark must point to a genuine issue of material fact

concerning his employers’ motive for firing him. Specifically, he bears the burden of establishing

that his employment was terminated “specifically because . . . [he] invoked [his] FMLA rights.”

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

annually provides twelve weeks of unpaid leave to qualified employees who suffer serious health

conditions that impair their full job performance. Daugherty v. Sajar Plastics, Inc., 544 F.3d 696,

706 (6th Cir. 2008). Upon return from a leave, the employee is entitled to reinstatement or, in the

alternative, a position offering commensurate salary and benefits. Id. “[A]n employer is prohibited

from discriminating against employees ... who have used FMLA leave” and may not “use the taking

of FMLA leave as a negative factor in employment actions.” Id. at 706-07. Clark argues that

Walgreens fired him in retaliation for his exercise of FMLA rights; that is, for having taken a FMLA

leave for a heart condition. However, he has not offered “direct evidence of discrimination . . .

[which] requires the conclusion that unlawful discrimination was at least a motivating factor in the

employer’s actions.” Id. at 707 (emphasis added).

       Direct evidence “must establish not only that the plaintiff’s employer was predisposed to

discriminate on the basis of [the FMLA], but also that the employer acted on that predisposition.”


                                                 6
Id. (alteration in original). Here, the allegedly offending statements, even if viewed in the light most

favorable to Clark, do not compel the conclusion that Clark was fired in connection with his leave.

Rather, the comments appear to address Clark’s post-leave job performance as a function of his

health. According to Clark, DM McKillop stated that “because of your health, we’re just going to

go ahead and terminate you.” Clark, himself, interpreted the statement as an indication that he “was

not healthy enough to work for Walgreen’s anymore.” (emphasis added). Clark reaches too far

when he argues that that statement implied Walgreens’ consideration of “potential further FMLA

leave period(s) by Mr. Clark, as well as the potential expenditure of health benefits funds.”

McKillop’s statement, even drawing all inferences in Clark’s favor, does not require the conclusion

that the leave prompted the firing. Cf. Daugherty, 544 F.3d at 708 (finding direct evidence of

FMLA retaliation where a supervisor stated that an employee would be barred from reinstatement

if the employee took FMLA leave). Indeed, immediately after his leave, Clark was re-appointed to

the same position with the same schedule and benefits.

2.      Indirect Evidence

        FMLA retaliation claims founded upon circumstantial evidence are adjudged in accordance

with the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Pursuant to the burden-shifting analysis, a plaintiff must first establish a prima facie case

of discrimination by showing that: (1) he engaged in protected activity, (2) he was subject to an

adverse employment decision, and (3) a causal connection existed between the adverse employment

action and the protected activity. Bell v. Prefix, Inc., 321 F. App’x 423, 426 (6th Cir. 2009).

Alternatively, a plaintiff may establish a prima facie case by demonstrating that “1) he is a member

of a protected class; 2) was qualified for the job; 3) he suffered an adverse employment decision;


                                                   7
and 4) was replaced by a person outside the protected class or treated differently than similarly

situated non-protected employees.” Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir.

2001).

         The district court correctly held that Clark easily satisfied the test’s first two prongs. The

leave Clark took between December 8, 2006 and January 2, 2007 was statutorily protected, and he

suffered termination in March of 2007. Further, the court correctly credited the temporal proximity

of Clark’s leave and his firing as sufficient evidence of a causal connection between the two. Our

precedents stand for the principle that timing matters. See, e.g., Mickey v. Zeidler Tool & Die Co.,

516 F.3d 516, 524 (6th Cir. 2008) (“none [of our precedents] squarely stands for the proposition that

temporal proximity alone may never show a causal connection”); McNett v. Hardin Cmty. Fed.

Credit Union, 118 F. App’x 960, 965 (6th Cir. 2004) (finding causation when “only 13 days”

separated protected activity from adverse action, reasoning that an “employer's knowledge of the

protected activity coupled with an adverse action occurring close in time can create an inference of

causation where the particular circumstances strengthen the inference of causation”); DiCarlo v.

Potter, 358 F.3d 408, 421 (6th Cir. 2004) (twenty-one day lapse between protected activity and

adverse employer action fell within close temporal proximity); Moore v. KUKA Welding Sys.,171

F.3d 1073, 1080 (6th Cir. 1999) (“[t]he causal connection ... may be established by demonstrating

that the adverse action was taken shortly after plaintiff filed the complaint [with the EEOC] and by

showing that he was treated differently from other employees”).

         Nevertheless, the district court also correctly concluded that Walgreens proffered a

legitimate, nondiscriminatory reason for firing Clark.         Following an unsolicited complaint,

Walgreens throughly investigated allegations that Clark not only completed PPLs for fellow


                                                   8
employees, but routinely directed them to complete PPLs while off the clock. Walgreens presented

evidence, in the form of testimony and written statements, that Clark admitted both of these

transgressions. Given this body of evidence, Walgreens harbored an “honest belief in its rationale

when it reasonably relied on the particularized facts that were before it at the time the decision was

made.” Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 599 (6th Cir. 2007). Because a

reasonable juror could infer that Clark’s actions violated company policy, the burden then shifted

to Clark to demonstrate that Walgreens’ proffered reason was pretextual.

       In Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994), we

identified three methods by which a plaintiff may demonstrate pretext by rebutting a defendant’s

legitimate, nondiscriminatory reason for termination. The plaintiff may show that (1) the employer’s

stated reason for terminating the employee has no basis in fact, (2) the reason offered for terminating

the employee was not the actual reason for the termination, or (3) the reason offered was insufficient

to explain the employer’s action. Id. Whichever method the plaintiff employs, he always bears the

burden of producing “sufficient evidence from which the jury could reasonably reject [the

defendants’] explanation and infer that the defendants intentionally discriminated against him.”

Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003) (alteration in original). This Clark failed

to do. Walgreens’ alleged silence in response to Clark’s requests for additional FMLA leave, and

DM McKillop’s statements about Clark’s health, do not overwhelm the great weight of evidence

concerning Clark’s malfeasance as to PPLs. Indeed, Clark’s only evidence rebutting these

allegations is Clark’s own vehement denial – just as Clark’s only evidence that other managers

engaged in similar misconduct is Clark’s own testimony. Further, Clark seeks to rely upon Bell,

which is readily distinguishable from the instant action. 321 F. App’x at 426. The plaintiff in that


                                                  9
case was terminated merely two days after engaging in protected activity, and the plaintiff’s

supervisor made numerous comments about the plaintiff having ‘abandoned’ the company.

However, the Court noted that “suspicious timing is a strong indicator of pretext when accompanied

by some other, independent evidence.” Id. at 431. Here, Clark’s “other” evidence is woefully

insufficient; and, therefore, no genuine issue of material fact exists as to his FMLA retaliation claim.

B. FMLA Interference

        To establish his claim that Walgreens interfered with his right to take further FMLA leave,

Clark bears the burden of showing that Walgreens “‘interfere[d] with, restrain[ed], or denied [his]

exercise or attempt to exercise, any right provided under [the FMLA].’” Daugherty, 544 F.3d at 707

(quoting 29 U.S.C. § 2615(a)(1)). In order to succeed, Clark must demonstrate that he was actually

entitled to FMLA leave. See Wysong v. Dow Chem Co., 503 F.3d 441, 447 (6th Cir. 2007).

Moreover, uncontradicted evidence demonstrated that his doctor did not change his opinion (or

communicate to Walgreens a change of opinion) regarding Clark’s ability to work or allude to

further work restrictions. Similar to his failure to demonstrate the existence of a genuine issue of

material fact sufficient to thwart Walgreens’ motion for summary judgment as to his FMLA

retaliation claim, Clark also cannot establish sufficient direct evidence analysis or indirect evidence

to preclude summary judgment as to his FMLA interference claim.

C. ERISA Violation

        Clark also alleges an ERISA § 510 violation claim on the basis of the same facts he

marshaled to support his FMLA claims. ERISA makes it unlawful to “discharge, fine, suspend,

expel, discipline, or discriminate against a participant or beneficiary . . . for the purpose of

interfering with the attainment of any right to which such participant may become entitled under [an


                                                  10
employee benefit plan.]” 29 U.S.C. § 1140. To establish a prima facie case for an ERISA § 510

violation, Clark must show: “(1) prohibited employer conduct (2) taken for the purpose of interfering

(3) with the attainment of any right to which the employee may become entitled.” Humphreys v.

Bellaire Corp., 966 F.2d 1037, 1043 (6th Cir. 1992). However, Clark has offered no evidence to

suggest that Walgreens terminated his employment to interfere with any right under any employee

benefit plan. The district court therefore correctly concluded that:

       [T]he Plaintiff himself testified that no one at Walgreens ever talked to him about the
       cost of his health care or ever had any discussions with him about his health
       insurance. From Plaintiff's own testimony, the Court fails to discern how Walgreens
       was motivated to terminate Plaintiff due to his participation in the health insurance
       plan, when no one at Walgreens ever mentioned it. Even disregarding Plaintiff's own
       testimony, the Plaintiff fails to proffer any evidence to support the inference that
       Plaintiff was terminated for any reason other than a perceived violation of Walgreens
       policy.

                                       IV. CONCLUSION

       Accordingly, for the foregoing reasons, the district court correctly granted Walgreens’

motion for summary judgment. The district court’s ruling as to Clark’s FMLA retaliation claim is

AFFIRMED. The district court’s ruling as to Clark’s FMLA interference claim is AFFIRMED.

The district court’s ruling on Walgreens’ summary judgment motion as to Clark’s § 501 ERISA

violation claim is also AFFIRMED.




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