676 F.3d 768 (8th Cir. 2012), 11-2744, Ballato v. Comcast Corp.

Docket Nº:11-2744.
Citation:676 F.3d 768
Opinion Judge:BRIGHT, Circuit Judge.
Party Name:George BALLATO, Plaintiff-Appellant, v. COMCAST CORP., Defendant-Appellee.
Attorney:Mark Alan Greenman, argued, Minneapolis, MN, for Plaintiff-Appellant. Peter James Gillespie, argued, Craig R. Annunziata, on the brief, Chicago, IL, for Defendant-Appellee.
Judge Panel:Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges.
Case Date:April 27, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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676 F.3d 768 (8th Cir. 2012)

George BALLATO, Plaintiff-Appellant,


COMCAST CORP., Defendant-Appellee.

No. 11-2744.

United States Court of Appeals, Eighth Circuit.

April 27, 2012

Submitted: March 15, 2012.

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Mark Alan Greenman, argued, Minneapolis, MN, for Plaintiff-Appellant.

Peter James Gillespie, argued, Craig R. Annunziata, on the brief, Chicago, IL, for Defendant-Appellee.

Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges.

BRIGHT, Circuit Judge.

George Ballato lost his employment with Comcast Corporation when he failed to show up for work on three consecutive shifts and failed to notify his department of his absences or to request leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601-54. Ballato filed a lawsuit against Comcast claiming the company interfered with his ability to request an excused absence under the FMLA, and that his termination from employment was based on the interference, as well as retaliation for his prior FMLA absences.

The district court 1 rejected Ballato's claims and dismissed his action on summary judgment. Ballato appeals and we affirm.

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I. Background

Comcast is a media and communications company that provides cable, internet, and phone services. Comcast hired Ballato as a customer account executive in 2007. In the months before his termination, Ballato handled customer service calls to Comcast from Spanish-speaking customers. In April 2009, Ballato applied for FMLA leave. His FMLA Certification of Health Care Provider indicated he suffered from chronic fatigue, depression, and weakness, and would require intermittent absences estimated at five days per month. Ballato received final approval of his request for intermittent leave on May 18, 2009.

Under Comcast's personnel policy, an employee on intermittent FMLA leave must contact Comcast's Resource Management Center (Resource Center) when the employee needs to use the FMLA leave. Ballato called the Resource Center and took his first day of FMLA leave on May 8, 2009, and he continued to take FMLA leave for the next eleven days. During this time Ballato's mother passed away, and he received a week of paid bereavement leave starting on May 20. The last shift Ballato worked for Comcast was on May 19, 2009.

At his annual review, in February 2009, Ballato had been informed he was not meeting Comcast's performance goals and his scores were too low. Ballato did not agree with the assessment and believed it was unfair. On June 1, 2009, Ballato sent several emails to Totrinh Phan, his human resources representative, and Andrew Piontek, his supervisor, expressing dissatisfaction with his job and the pressure he felt he was under. The following day, Ballato met with Phan and discussed his performance, dissatisfaction, and whether he would be able to collect unemployment benefits if he quit. Phan told him that if he quit he might not be able to receive unemployment benefits.

On June 3, Ballato began sending a series of emails to other employees— including an email to a vice president requesting that he " stop sending me Comcast propaganda," and an email to the person responsible for his performance review accusing her of dismantling the Spanish department. Ballato also attempted to send a mass email to all of the call-center employees, but Comcast's email system restricts access to mass email lists and prevented his message from being sent. The system sent Ballato an email notifying him of the failed attempt. Ballato forwarded the system email to Piontek and asked him to send Ballato's email to the call center. However, Ballato's original email was not attached to the system email, so Piontek was unable to determine what Ballato had attempted to send to the call-center employees.

On June 4, Ballato emailed Piontek and asked, " what's my status as a Comcast employee?" Piontek replied that evening, " You are still employed by Comcast and we look forward to your return." Ballato responded, " That's great! I can't wait to get back on the phones to truly educate our customers!"

Phan received several of Ballato's emails, either directly from him or forwarded to her from others, and she found them to be " very disturbing, concerning emails." On the morning of Friday, June 5, Phan forwarded some of the emails to her supervisor, Human Resources Manager James Randle, and stated she would arrange to deactivate Ballato's access to Comcast's computer systems and email. She also suggested that " we contact him before his shift started [sic] to put him on admin pay."

After receiving the forwarded emails from Phan, Randle sent an email to a

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director and a vice president of human resources. In the email, Randle expressed his concern for the " health and safety of this employee ... and others ...." (ellipses in the original). Randle wrote Ballato did not seem stable and suggested that they notify security about the situation. Comcast subsequently deactivated Ballato's access to Comcast's computer systems and the building. Randle also called Ballato twice on the afternoon of June 5 and left Ballato a voicemail asking for a return call. Ballato received the voicemail that day, but did not call Randle back because he was afraid Randle had called to terminate him.

Ballato was scheduled to work from 4:30 p.m. to 1:00 a.m. on June 5, 2009. Around 3:30 p.m., Ballato called the Resource Center to request FMLA leave for his shift that evening. However, the person at the Resource Center could not find him in the attendance system and told Ballato that he should talk to his supervisor. Ballato did not attempt to contact his supervisor after he called the Resource Center.

That afternoon, Ballato also went to the Comcast building where he worked. While other Comcast employees had no trouble entering, Ballato's badge did not work. Unable to access the building, he decided to return home. Ballato did not ask anyone to assist him with entering the building, nor did he call anyone at Comcast about the issue with his badge.

On Saturday, June 6, 2009, Ballato called Randle's office line. He left a message stating he had spoken with an attorney and was advised to not have contact with anyone from Comcast. Ballato also requested " that you cease and desist all communication with me."

Ballato believed he had been fired by Comcast. Ballato was scheduled to work June 8 and 9, but did not call in to request FMLA leave, contact anyone at Comcast, or show up for either shift. On June 9, Ballato sent a letter to Phan requesting a reason for his termination. Phan received the letter that day and notified Randle. The following day, Phan checked...

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