                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                        File Name: 13a0211p.06

                  UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                X
                                                 -
 EVERETT SROUDER,
                                                 -
                                                Plaintiff,
                                                 -
                                                 -
                                                    No. 12-5835
 MATT WHITE,
                         Plaintiff-Appellant, ,>
                                                 -
                                                 -
                                                 -
          v.
                                                 -
                                                 -
                        Defendant-Appellee. N
 DANA LIGHT AXLE MANUFACTURING, LLC,

                  Appeal from the United States District Court
               for the Eastern District of Kentucky at Covington.
          No. 2:10-cv-00155—William O. Bertelsman, District Judge.
                              Decided and Filed: August 7, 2013
   Before: BATCHELDER, Chief Judge; SUHRHEINRICH and SUTTON, Circuit
                                 Judges.
                                        _________________
                                              COUNSEL
ON BRIEF: James Y. Moore, ERIC C. DETERS & PARTNERS, PSC, Cincinnati,
Ohio, for Appellant. Marjorie A. Farris, Shannon Antle Hamilton, Karen M. Paulin,
STITES & HARBISON, PLLC, Louisville, Kentucky, for Appellee.

                                        _________________

                                               OPINION
                                        _________________

         ALICE M. BATCHELDER, Chief Judge. Matt White appeals from the district
court’s order granting summary judgment to White’s former employer, Dana Light Axle
Manufacturing, LLC (“Dana”).1                During his employment with Dana, White had


         1
           This case originated with two plaintiffs, Everett Srouder and Matt White, each of whom brought
FMLA retaliation and interference claims against Dana. After Dana moved for summary judgment against
each plaintiff, the plaintiffs abandoned their retaliation claims and argued only their interference claims.
The district court denied summary judgment to Dana on Srouder’s claims, and Srouder eventually settled


                                                     1
No. 12-5835          Srouder, et al. v. Dana Light Axle Mfg.                            Page 2


problems with his attendance and with obtaining proper medical certifications for
various absences he claimed were protected under the Family Medical Leave Act
(“FMLA”).      Eventually, White developed a hernia that required surgery.                Dana
terminated White’s employment for his failure to follow the call-in requirements of
Dana’s attendance policy. White sued Dana, alleging interference with his rights under
the FMLA. Because the applicable regulation under the FMLA expressly permits an
employer to enforce its “usual and customary notice and procedural requirements for
requesting leave,” 29 C.F.R. § 825.302(d), we AFFIRM the district court’s grant of
summary judgment for Dana.

                                               I.

        Matt White began working as an assembly worker for Dana Light Axle
Manufacturing, LLC (“Dana”) in September 2006, at Dana’s Dry Ridge, Kentucky plant.
Initially, White worked second shift, from 2:00 p.m. to 10:15 p.m.; then, approximately
one year before his termination, he was moved to first shift, from 6:00 a.m. to 2:15 p.m.
White’s job required him to be lifting various parts weighing on average between twenty
and seventy-five pounds for at least half the time he was on shift. Apparently, White
was noted as being a good worker when present, but as having consistent attendance
problems. Between January 26, 2009, and September 24, 2009, White called in
approximately nineteen absences for various reasons, including emergency vacation
leave, vacation leave, unpaid leave, and FMLA leave. White took FMLA leave more
than once during 2009 due to gout and perhaps other unrelated back and foot pain as
well.

        In September 2009, White began suffering complications related to multiple
abdominal surgeries stemming from a car accident in 1995. White had punctured his
intestines in the accident and had undergone surgery to remove three feet of his
intestines. He subsequently suffered hernias that required additional surgeries. Before
his hernia problem resurfaced in September 2009, White had last undergone hernia


with Dana. However, the district court granted Dana’s motion for summary judgment against White.
Accordingly, White is the only plaintiff involved in this appeal.
No. 12-5835        Srouder, et al. v. Dana Light Axle Mfg.                         Page 3


surgery in 1999. White began seeking medical attention for his stomach pain in
September 2009. On September 22, 23, and 24, he called in to take FMLA leave.
Apparently, on September 25, White’s surgeon scheduled him to have surgery on
October 7.

       Also on September 25, White went into work, but was sent home after submitting
an incomplete medical certification for previously claimed FMLA absences. According
to the affidavit of Brandy Race, the Human Resources Manager at Dana’s Dry Ridge
plant, Race had requested medical certification from White for his claimed FMLA
absences taken in late August and on September 1. When White submitted incomplete
paperwork on September 16, Race notified White of the deficiencies, giving him until
September 23 to submit the completed certification. On September 21, Race met with
White, along with Wade Wilmer, the Production Manager at the time, to discuss White’s
need to submit proper medical certification for his claimed FMLA absences in late
August. As previously noted, White was absent from work on September 22, 23, and
24, again claiming FMLA leave, and he did not re-submit the required certification until
September 25. His certification still being incomplete, White was sent home and told
to return at 9:00 a.m. on Monday, September 28, for a meeting with Race. White failed
to come to the 9:00 a.m. meeting, but he did appear some time during that day. Race
rescheduled the meeting with White for 9:00 a.m. on September 30.

       The parties dispute exactly what happened during the September 30 meeting.
Race’s notes reflect that White, Race, Wilmer, and Brian Peeno, the first shift Union
Steward, were present at the meeting. White testified that Ben Smith, his supervisor,
was also present. In her affidavit, Race stated that she had prepared a termination letter
for White before the meeting, but decided not to terminate White upon hearing his
explanation that he was unable to submit his certification on the 23rd because he had
been sick. Race acknowledged that White submitted a new medical certification dated
September 28, relating to White’s September 22, 23, and 24 absences, as well as a
doctor’s note restricting White from lifting anything over twenty pounds. Race
maintained that White never used the word “hernia” during the September 30 meeting.
No. 12-5835            Srouder, et al. v. Dana Light Axle Mfg.                                    Page 4


According to Race, White stated that he had a “hole in his stomach” and might be having
surgery soon. Race’s notes from the meeting generally support this account in her
affidavit.2

         However, White testified in his deposition, “I told them I was having surgery the
following week, and Friday, October 2nd, I was—I had to go to my anesthesiologist to
get prepped for surgery.” Maintaining that he discussed his upcoming surgery at the
September 30 meeting, White stated, “I explained to them about how Dr. Ashcraft told
me how my hernia was—could get twisted and it was dangerous to be at work. He
explained it like someone with their hands around your neck because how the hernia was
coming through the incision and it could get twisted and it was very—it was dangerous.”
When asked whether he specifically used the word “hernia,” White replied, “Yes.”
Furthermore, the medical certification form that White submitted at the September 30
meeting noted that White’s condition “may be hernia,” that White was suffering
abdominal pain, and that White had been referred to—and had an appointment with—a
surgeon “for evaluation of possible hernia.”

         According to Race’s notes, she informed White during the meeting that given his
weight-lifting restriction, Dana could not place him on assignment in the plant. White
then responded that he could get his doctor’s authorization to return to work and be back
to work the next day. Race’s affidavit states that at the conclusion of the meeting, she
understood that White was going to his doctor to get his weight-lifting restriction
removed, and that he would be back at work the next day.

         White testified that at the September 30 meeting, “they said my paperwork was
fine and that there was no light duty and that I could not return to work.” White
maintained that he told them he would try to get his restriction lifted. In White’s mind,


         2
          At one point, Race’s notes reflect that White said “that he was going to have to have surgery
soon.” Race’s notes later reflect that towards the end of the meeting, White “said that he may have to have
surgery.”
         Moreover, Race’s notes were also signed by Wilmer, who gave an affidavit stating:
         During the September 30, 2009 meeting, Mr. White stated that he had been sick, that he
         had a hole in his stomach, and that he might need to have surgery. Mr. White did not
         tell us that he had a hernia, that he was already scheduled to have surgery, or that he
         would be off of work for six to eight weeks.
No. 12-5835           Srouder, et al. v. Dana Light Axle Mfg.                                Page 5


he was doing this “so I could work those couple days before my surgery.” According
to White, he called back later that afternoon and talked to Karen Van Holten in Human
Resources, informing her that he could not in fact get his doctor to remove his weight-
lifting restriction. Van Holten, in turn, did not remember such a phone call. White
testified that Van Holten told him to fill out short-term disability paperwork, and Van
Holten did affirm that “[a]t some point in late September 2009,” she provided a short-
term disability application form to White upon his request.3 White further stated that
during the September 30 meeting, “[t]hey told me there was no light duty at the time,
that I would not be able to work.” He also said, “you know, like [Race] told me,
‘There’s no light duty. You can’t come back to work until your doctor releases you.’”

        It is undisputed that White did not come to work on October 1, 2, 5, or 6.
Furthermore, it is also undisputed that White failed to “call in” pursuant to Dana’s
attendance policy. This policy was a “no-fault” plan, under which Dana expected perfect
attendance. Under the policy, each employee was responsible to personally call in his
own absences. Moreover, the policy expressly provided, “All absences must be phoned
into [the number provided] on a daily basis. Calls to other numbers will not be
acceptable.” Employees were clearly instructed, “Your [sic] must call in each and
everyday [sic] of an absence before the start of your shift.” Importantly, the policy
explicitly stated, “If an individual fails to report to work for two days and has not called
in, that person is considered to have voluntarily quit.” Dana’s FMLA policy required
an employee to provide both advance leave notice and medical certification. If the leave
was foreseeable, the policy required thirty days’ notice. If the leave was not foreseeable,
the policy required “as much notice as possible.” The policy also stated, “Dana requires
medical certification to support a request for leave because of a serious health condition
. . . .” According to the FMLA Policy, Dana could deny or delay an employee’s taking
of leave if the policy’s requirements were not met.




        3
          Race’s notes from the September 30 meeting reflect that towards the end of the meeting that
morning, White “stated that he received Short Term Disability paperwork from Karen [Van Holten] and
that he was going to complete it and get it back to us tomorrow.”
No. 12-5835          Srouder, et al. v. Dana Light Axle Mfg.                          Page 6


         On October 1, Race sent White a memorandum notifying him of various
deficiencies in the medical certification he had submitted during the September 30
meeting for his absences on September 22, 23, and 24, and giving him until October 7
to submit proper certification. However, because White failed to come to work and did
not call in his absences for several days, Race sent White a termination letter dated
October 6, 2009. The letter noted White’s absences and accompanying failure to notify
his supervisor, and then stated, “[O]ur records will indicate you are voluntarily resigning
from your role at Dana.” The letter proceeded to inform White, “In the event there are
any extenuating circumstances that we should consider, please contact your supervisor
immediately. Otherwise, we will process your termination effective Tuesday, October 6,
2009.”

         On October 7, before White had received the termination letter, he took his
certification paperwork back to the doctor (i.e., the doctor who had referred him to the
surgeon, not the surgeon who performed his hernia surgery); the doctor (or someone in
his office) filled in some additional material on the form; and White dropped off the
revised certification form on Race’s desk before he went in for his surgery on that same
day. White received the termination letter the following day, October 8. Apparently,
White started calling in absent on October 9, alleging FMLA leave, and continued doing
so through October 15. He testified that Brian Peeno (the first shift Union Steward)
advised him to do this when he called Peeno upon receiving the termination letter. Some
time on or after October 9, Race received a completed short-term disability application
from White and his surgeon. The application contained information concerning White’s
surgery on October 7, and also indicated that White’s recovery period would be
approximately six weeks from the date of surgery.

         At his deposition, White testified regarding his understanding of the “call-in line”
for Dana employees. According to White, the line was not to a person, but to a
computer, and the employee simply left his name, clock number, and sometimes an
explanation for why he was taking the day off. White opined that he thought the
supervisors were the ones who got the messages from the call-in line. When asked
No. 12-5835        Srouder, et al. v. Dana Light Axle Mfg.                        Page 7


whether an employee could call in one morning and “talk to a supervisor to tell him you
weren’t coming in,” White responded, “I’m not sure if you could or not. You just go by
the emergency—you know, the call-in line. You would always just call that in to make
sure.” The attorney at the deposition immediately followed up with, “That was the
procedure, you called the call-in line?” White replied, “Right.” Shortly thereafter, the
attorney asked White, “Were there ever times when you were going to be absent but you
did not need to call in to the call-in line?” White responded, “No—I mean, if you were
going to be absent, you had to call in, yeah.”

       Later in his deposition, however, White maintained that after the September 30
meeting, he thought that he did not need to call in his absences because of what Race had
told him during that meeting and because he had said he was having surgery. According
to White, Dana personnel knew that White was not coming into work because they had
told him there was no light duty work for him to do, and because they knew he was
having surgery. Thus, White affirmed that he was under the impression he did not need
to call in his absences following the September 30 meeting.

       White now appeals the district court’s grant of summary judgment to Dana on
White’s FMLA interference claim.

                                           II.

       “We review the district court’s order granting summary judgment de novo.”
Brenneman v. MedCentral Health Sys., 366 F.3d 412, 417 (6th Cir. 2004). Summary
judgment is appropriate where “the movant shows that 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). In determining whether this standard is met, “[w]e must accept the
non-moving party’s evidence, and draw all justifiable inferences in his favor.”
Brenneman, 366 F.3d at 417 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)). “The mere existence of a scintilla of evidence in support of
the plaintiff’s position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986).
No. 12-5835           Srouder, et al. v. Dana Light Axle Mfg.                                Page 8


        A plaintiff bringing an interference claim under the FMLA has the burden to
prove that:
        (1) he was an eligible employee; (2) the defendant was an employer as
        defined under the FMLA; (3) the employee was entitled to leave under
        the FMLA; (4) the employee gave the employer notice of his intention
        to take leave; and (5) the employer denied the employee FMLA benefits
        to which he was entitled.
Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005). The issue in this case
arises under the fourth element. Specifically, the question confronting us is whether an
employer may impose and enforce its own internal notice requirements, even if those
requirements go beyond the bare minimum that would generally be sufficient under the
FMLA to constitute proper notice.
        This Court previously addressed this question in Cavin v. Honda of America
Manufacturing, Inc., 346 F.3d 713 (6th Cir. 2003). In Cavin, the employer (Honda)
required its employees to notify the leave coordination department for absences
continuing for more than one day. Id. at 716. If the need for leave was unforeseeable,
the employee was required to request leave within three days. Id. If an employee was
absent for three consecutive workdays and failed to notify the leave coordination
department, that employee would be separated from employment. Id.
        This Court held that “the FMLA does not permit an employer to limit his
employee’s FMLA rights by denying them whenever an employee fails to comply with
internal procedural requirements that are more strict than those contemplated by the
FMLA.” Id. at 720. The rationale for this holding was the then-current text of the
regulation for foreseeable FMLA leave.4 At that time, 29 C.F.R. § 825.302(d) provided:
        An employer may . . . require an employee to comply with the
        employer’s usual and customary notice and procedural requirements for
        requesting leave. . . . However, failure to follow such internal employer
        procedures will not permit an employer to disallow or delay an
        employee’s taking FMLA leave if the employee gives timely verbal or
        other notice.


        4
          Acknowledging that “Cavin’s need for leave was not foreseeable,” 346 F.3d at 721—Cavin was
in a motorcycle accident—the Court held that “the discussion in [29 C.F.R.] § 825.302 about employer
notice procedures in the context of an employee’s foreseeable need for leave should also apply in the
context of an employee’s unforeseeable need for leave,” id. at 722.
No. 12-5835           Srouder, et al. v. Dana Light Axle Mfg.                                      Page 9


The Cavin panel reasoned that “[i]n permitting employers to develop notice procedures,
the Department of Labor did not intend to allow employers in effect to undermine the
minimum labor standard for leave.” 346 F.3d at 722. The Court concluded “that
employers cannot deny FMLA relief for failure to comply with their internal notice
requirements. Therefore, . . . Honda could not interfere with Cavin’s FMLA rights by
enforcing its notice requirements to deny Cavin benefits to which he otherwise may have
been entitled under the FMLA.” Id. at 723.
        However, the regulatory language underlying this holding in Cavin is no longer
in effect. In fact, the language of § 825.302(d) was materially altered in the revisions
to the FMLA regulations effective January 16, 2009. That subsection now provides, in
part:
        An employer may require an employee to comply with the employer’s
        usual and customary notice and procedural requirements for requesting
        leave, absent unusual circumstances. . . . An employee . . . may be
        required by an employer’s policy to contact a specific individual.
        Unusual circumstances would include situations such as when an
        employee is unable to comply with the employer’s policy that requests
        for leave should be made by contacting a specific number because on the
        day the employee needs to provide notice of his or her need for FMLA
        leave there is no one to answer the call-in number and the voice mail box
        is full. Where an employee does not comply with the employer’s usual
        notice and procedural requirements, and no unusual circumstances
        justify the failure to comply, FMLA-protected leave may be delayed or
        denied. . . .
29 C.F.R. § 825.302(d) (emphasis added). This language explicitly permits employers
to condition FMLA-protected leave upon an employee’s compliance with the employer’s
usual notice and procedural requirements, absent unusual circumstances.5 Thus, to the




        5
         Moreover, 29 C.F.R. § 825.304(e) provides:
        An employer may waive employees’ FMLA notice obligations or the employer’s own
        internal rules on leave notice requirements. If an employer does not waive the
        employee’s obligations under its internal leave rules, the employer may take appropriate
        action under its internal rules and procedures for failure to follow its usual and
        customary notification rules, absent unusual circumstances, as long as the actions are
        taken in a manner that does not discriminate against employees taking FMLA leave and
        the rules are not inconsistent with § 825.303(a).
No. 12-5835            Srouder, et al. v. Dana Light Axle Mfg.                                   Page 10


extent Cavin held to the contrary, its holding has been effectively abrogated by the
subsequent revisions to § 825.302(d).6
         It is true that Cavin based its rationale not only on the language of § 825.302(d),
but also on the general purpose and policy underlying the FMLA. See 346 F.3d at
720–23. However, to enforce Cavin’s holding in the face of the express, plain language
of the revised regulation would be to ignore the revision’s plain language designed to
address the giving of notice for foreseeable leave.
         Thus, in light of the revisions to § 825.302(d), we hold that an employer may
enforce its usual and customary notice and procedural requirements against an employee
claiming FMLA-protected leave, unless unusual circumstances justify the employee’s
failure to comply with the employer’s requirements. Here, White has produced no
evidence demonstrating the type of “unusual circumstances” that would have justified
his failure to follow the call-in requirements of Dana’s attendance policy.7 Furthermore,
despite White’s personal impression, there is no evidence that Dana waived its call-in
requirements for White during his October absences. Therefore, we hold that regardless
of whether White provided sufficient FMLA notice to Dana during the September 30
meeting, Dana was nevertheless justified in terminating White’s employment for his
failure to follow the call-in requirements of Dana’s attendance policy.




         6
          Interestingly, an official report from 2007 addressing the FMLA regulations, in a section
discussing the former version of § 825.302(d) relied upon in Cavin, noted:
         This issue of an employer’s ability to enforce its own notice policies for employees
         taking leave has been litigated in the federal courts with varying results. Two appellate
         courts have addressed whether the application of employer policies requiring employees
         to notify a specific individual or office when requesting a leave of absence violates the
         FMLA and have reached differing results.
Family and Medical Leave Act Regulations: A Report on the Department of Labor’s Request for
Information, 72 Fed. Reg. 35550 (June 28, 2007) (footnote omitted). The report then discussed Cavin and
a Tenth Circuit case, Bones v. Honeywell Int’l, Inc., 366 F.3d 869 (10th Cir. 2004).
         7
          Although White was suffering from a hernia and it is not clear exactly what his condition was
on October 1, 2, 5, or 6, White testified that on October 7, the day of his surgery, he was able to go into
his doctor’s office with FMLA paperwork and then drop off that paperwork on Race’s desk before his
surgery that afternoon. Thus, we do not believe that there is any reason to conclude White was unable to
make any phone calls from October 1–6, and, indeed, White has made no such claim. Accordingly, White
has not provided evidence showing unusual circumstances in this case.
No. 12-5835     Srouder, et al. v. Dana Light Axle Mfg.               Page 11


                                       III.
      For the foregoing reasons, we AFFIRM the district court’s order granting
summary judgment to Dana.
