                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 18a0318n.06

                                          No. 17-2250

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                  FILED
 MATTHEW BECKMAN,                                       )                   Jun 27, 2018
                                                        )               DEBORAH S. HUNT, Clerk
           Plaintiff-Appellant,                         )
                                                        )
 v.                                                     )      ON APPEAL FROM THE
                                                        )      UNITED STATES DISTRICT
 WAL-MART STORES, INC.,                                 )      COURT FOR THE WESTERN
                                                        )      DISTRICT OF MICHIGAN
           Defendant-Appellee.                          )
                                                        )
                                                        )



          Before: KEITH, ROGERS, and KETHLEDGE, Circuit Judges.

          KETHLEDGE, Circuit Judge. Wal-Mart Stores, Inc. employed Matthew Beckman as a

shipping loader. Wal-Mart fired him after he failed to show up for work more than a dozen times.

He thereafter sued Wal-Mart, asserting claims under the Family Medical Leave Act and the

Americans with Disabilities Act. The district court granted summary judgment to Wal-Mart. We

affirm.

                                                I.

          In August 2013, Beckman’s doctor diagnosed him with a double hernia. Over the next 14

months, Wal-Mart approved four of Beckman’s requests for leave under the FMLA. Beckman

took over 10 weeks of medical leave in total. Beckman was also repeatedly absent from work

without receiving authorization from Wal-Mart. In early October 2014, a supervisor told Beckman
No. 17-2250
Beckman v. Wal-Mart Stores, Inc.

that he had been absent without leave for a total of 110 hours. Beckman knew that—per Wal-

Mart’s attendance policy—he would lose his job if he had additional unauthorized absences.

          Yet on October 21 and 22 Beckman left work early without authorization; and on October

23 and 24 he did not show up for work at all. When Beckman arrived to work on October 28, his

supervisor told him that he had violated Wal-Mart’s attendance policy, and then sent him home.

That same day Beckman asked Wal-Mart to count his absences from October 23 to 30 as leave

covered by the FMLA. Wal-Mart later denied that request because, Wal-Mart said, Beckman had

not worked at least 1,250 hours over the past year and thus lacked eligibility to take FMLA leave.

On November 12, Wal-Mart fired Beckman for “excessive absences” in violation of its attendance

policy.

          Beckman thereafter brought this suit, alleging among other things that Wal-Mart had

violated the FMLA and the ADA. See 29 U.S.C. § 2601; 42 U.S.C. § 12101. The district court

granted summary judgment to Wal-Mart, reasoning that Beckman lacked eligibility to take FMLA

leave from October 23 to 30, and that Wal-Mart had not unreasonably refused to accommodate

Beckman’s disability or discriminated against him because of it. Thus the court granted summary

judgment to Wal-Mart on all of Beckman’s claims. This appeal followed.

                                                 II.

          We review the district court’s grant of summary judgment de novo, and can affirm the

court’s decision on any grounds supported by the record. See Loyd v. Saint Joseph Mercy Oakland,

766 F.3d 580, 588, 592 (6th Cir. 2014).

                                                 A.

          Beckman argues that he established a genuine issue as to whether Wal-Mart interfered with

his FMLA rights when it denied his request to take medical leave and then fired him. Under the


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Beckman v. Wal-Mart Stores, Inc.

FMLA, an employee with a serious health condition may take up to 12 weeks of leave per year.

See 29 U.S.C. § 2612. The FMLA also provides that “[i]t shall be unlawful for any employer to

interfere with, restrain, or deny the exercise of or the attempt to exercise” that right. See 29 U.S.C.

§ 2615(a)(1). Here, Beckman must establish that Wal-Mart violated the FMLA when it denied his

request for leave, and that the violation caused him damages. See Ragsdale v. Wolverine World

Wide, Inc., 535 U.S. 81, 89 (2002); see also 29 U.S.C. § 2617. We focus on whether Wal-Mart’s

decision to deny Beckman’s request for FMLA leave caused him damages, namely his termination.

          Beckman’s termination did not result from Wal-Mart’s decision to deny Beckman’s request

for leave. Instead, Wal-Mart fired Beckman because he had violated its attendance policy on

October 21. On that day, Wal-Mart’s human resources manager testified, Beckman left work early

and thereby accumulated more than 110 hours of unauthorized absences. “Mr. Beckman’s absence

on October 21,” she said, “qualified him for termination” under Wal-Mart’s attendance policy.

Beckman’s timesheet and disciplinary record confirm that he violated Wal-Mart’s attendance

policy on October 21. Moreover, Beckman himself admitted that—when he showed up for work

on October 28—his supervisor told him to go home because he had too many unauthorized

absences. When Wal-Mart formally fired him a few weeks later, it recited “Excessive Absences

and/or Tardies” as the “Termination Reason.” Thus, regardless of whether Wal-Mart had granted

Beckman’s request for FMLA leave from October 23 to 30, Beckman had violated Wal-Mart’s

attendance policy on October 21, and Wal-Mart fired him for that violation. And Beckman

provides no evidence to show that Wal-Mart’s reason for firing him was a pretext for an unlawful

reason.

          Instead, Beckman contends he was in fact eligible to take FMLA leave from October 23 to

30. Specifically, he says that he worked at least 1,250 hours in the 12-month period before his


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Beckman v. Wal-Mart Stores, Inc.

initial request for leave on July 8. See 29 C.F.R. § 825.110(a)(2). In Beckman’s view, Wal-Mart

violated the FMLA by determining his eligibility based on the hours he worked in the 12-month

period before October 23, instead of the 12-month period before July 8.

       But that disagreement makes no difference to whether Beckman can prove causation for

his FMLA claim. Again, as shown above, Wal-Mart fired Beckman because by October 21 he had

accumulated more than 110 hours of unauthorized absences. His problem, therefore, was not that

he was ineligible for FMLA leave, but that he was so frequently absent from work without

authorization—whether he was eligible for leave or not. He therefore has presented no basis on

which a jury could find the element of causation, and thus the district court properly granted

summary judgment on his FMLA claim.

                                               B.

       Beckman also challenges the district court’s decision to grant summary judgment to

Wal-Mart on his ADA claims.          The ADA requires an employer to “mak[e] reasonable

accommodations to the known physical or mental limitations of an otherwise qualified individual

with a disability who is an . . . employee[.]” See 42 U.S.C. § 12112(b)(5)(A). A “qualified

individual” is someone who can perform the essential functions of his job with or without a

reasonable accommodation. See 42 U.S.C. § 12111(8).

       Beckman argues that Wal-Mart denied him a reasonable accommodation for his hernia

when it denied his request for extended medical leave from October 23 to 30. But “[a]n employee

who cannot meet the attendance requirements of the job at issue cannot be considered a ‘qualified’

individual protected by the ADA.” Brenneman v. MedCentral Health Sys., 366 F.3d 412, 419 (6th

Cir. 2004) (citation omitted). Here, even if Wal-Mart had granted Beckman’s request for extended

medical leave from October 23 to 30, Beckman would not be able to meet the requirements of


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Beckman v. Wal-Mart Stores, Inc.

Wal-Mart’s attendance policy due to his excessive absenteeism. Thus he was unqualified, and his

ADA claim fails. See id. at 420.

       Beckman next argues that Wal-Mart denied him a reasonable accommodation when it

denied his request for light-duty work. But a “suggested accommodation is not reasonable if it

requires eliminating an essential function of the job.” Rorrer v. City of Stow, 743 F.3d 1025, 1039

(6th Cir. 2014) (internal quotation marks omitted). Here, according to Wal-Mart’s employee

handbook, a shipping loader must be able to “lift . . . without assistance” merchandise and

equipment that weigh more than 60 pounds. Beckman himself admitted that this ability was an

essential part of his job. Thus, Beckman’s light-duty accommodation would have eliminated one

of the essential functions of his job. That accommodation was therefore unreasonable. See

E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 763 (6th Cir. 2015).

       Beckman responds that Wal-Mart could have employed its “Temporary Alternate Duty”

policy to transfer him to a different job without a heavy-lifting requirement. Under the ADA,

however, an employee who wants a transfer to another job as an accommodation must ask for a

transfer. See Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 870 (6th Cir. 2007). Beckman

never asked to transfer jobs under this policy; instead he asked only to continue working in the

shipping department without the lifting requirement. Hence he is not entitled to relief on this

ground either.

       According to Beckman, Wal-Mart initially refused to grant his requested accommodation

for light-duty work because Wal-Mart had an illegal policy of barring injured employees from

returning to work until they were 100% healed. But what matters for purposes of the ADA is

whether Beckman’s request for light-duty work was a reasonable one. And—as detailed above—

that request would have eliminated an essential function from his job and therefore was not


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reasonable. Thus the question of whether Wal-Mart had a so-called “100% policy” is immaterial

to Beckman’s ADA claims.

         Finally, Beckman argues that Wal-Mart did not engage in a dialogue with him to explore

possible accommodations for his hernia condition. But Beckman did not make that argument in

the district court, so it is waived. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.

2008).

         The district court’s judgment is affirmed.




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