779 F.3d 514 (8th Cir. 2015), 13-3786, Johnson v. Wheeling Mach. Prods.

Docket Nº:13-3786
Citation:779 F.3d 514
Opinion Judge:WOLLMAN, Circuit Judge.
Party Name:Kendrick Johnson, Plaintiff - Appellant, v. Wheeling Machine Products; U.S. Steel Tubular Products, Inc.; United States Steel Corporation, Defendants - Appellees
Attorney:For Kendrick Johnson, Plaintiff: Lucien Ramseur Gillham, Sutter & Gillham, Benton, AR. For Wheeling Machine Products, U S Steel Tubular Products Inc, United States Steel Corporation, Defendants: Emmett B. Chiles, Amber Davis-Tanner, Quattlebaum & Grooms, Little Rock, AR.
Judge Panel:Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
Case Date:February 20, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Johnson began working for U.S. Steel in 2004. On May 12 2011, he left work, complaining of a headache, and went to a clinic where a physician’s assistant indicated that he had high blood pressure. The next day he provided a note that was deemed insufficient by his employer. His regular physician later indicated that Johnson's blood pressure was normal. Emails, memoranda, and letters indicate that ... (see full summary)


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779 F.3d 514 (8th Cir. 2015)

Kendrick Johnson, Plaintiff - Appellant,


Wheeling Machine Products; U.S. Steel Tubular Products, Inc.; United States Steel Corporation, Defendants - Appellees

No. 13-3786

United States Court of Appeals, Eighth Circuit

February 20, 2015

Submitted December 11, 2014

Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff.

For Kendrick Johnson, Plaintiff: Lucien Ramseur Gillham, Sutter & Gillham, Benton, AR.

For Wheeling Machine Products, U S Steel Tubular Products Inc, United States Steel Corporation, Defendants: Emmett B. Chiles, Amber Davis-Tanner, Quattlebaum & Grooms, Little Rock, AR.

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.


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WOLLMAN, Circuit Judge.

Kendrick Johnson appeals from the district court's1 grant of summary judgment

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in favor of his employer, U.S. Steel Tubular Products, Inc., and related defendants.2 Johnson brought this action under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § § 2601-2654, alleging that U.S. Steel retaliated against him for taking protected FMLA leave, failed to reinstate him after a period of protected leave, and otherwise unlawfully interfered with his FMLA rights. We affirm, although on a ground different from that relied upon bye the district court.3


The facts are presented in the light most favorable to Johnson. In May 2004, Johnson began working at a U.S. Steel plant in Pine Bluff, Arkansas. He was eventually promoted to a lead position that sometimes required him to drive a forklift. Johnson was scheduled to work May 12 through May 15, 2011. On May 12, he informed his supervisor that he was not feeling well. Johnson was suffering from blurred vision, a stiff neck, back pain, and a " major" headache, and he claims that he felt as though his head would " explode." Johnson waited for employee-relations supervisor Tammara Love to arrive, but when she still had not arrived several hours into Johnson's shift, he left her a voicemail, in which he stated that he was not feeling well and was leaving work to see a doctor.

Johnson left work and went to a nearby health care clinic, where he saw physician assistant Stephen Stewart,4 whom he had never seen before. Stewart diagnosed Johnson with high blood pressure, prescribed him blood-pressure medication, and told him to follow up with his regular physician. Stewart did not indicate when Johnson should schedule the follow-up appointment. Stewart gave Johnson a note, asked him to fill in his own name, and then signed the note, which stated that Johnson was seen at the clinic and could return to work on May 16, 2011. Johnson returned to the plant and gave the note to a supervisor, explaining that he would be back on May 16. Johnson also left Love another voicemail, in which he stated that he had been taken off work for a few days and that he had left a work excuse with his supervisor.

The next day, May 13, Love called Johnson and asked him to come in to discuss the note from Stewart. She asked him who had written his name on the note, and he explained that he had filled in his own name at Stewart's request. Love instructed him to return to the clinic and get another excuse. Later that day, Johnson returned with a second note, which a paramedic at the clinic had signed because Stewart was busy. Love rejected the note, telling Johnson that it was not acceptable and that he needed to obtain another note that stated the reasons for being off work. She said that she would prefer if he brought the note back before the end of the day. U.S. Steel's attendance policy also required that, under certain circumstances, employees provide written documentation from their health care providers stating that they were " totally disabled from working" on the days

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of their absence, and Love claims that the note violated this policy, although Love never communicated this to Johnson. Johnson went to procure a third note, but the clinic would not give a more detailed explanation for his absence.

According to Love, Johnson was suspended on May 16, 2011, and he was terminated on May 18. Emails, memoranda, and letters by Love and other agents of U.S. Steel indicate that Johnson had been suspended and then terminated for altering, falsifying, or forging the work excuse. From May 12 until the time of Johnson's termination, U.S. Steel never provided him with notice of his FMLA rights and obligations. Nor was such notice included in the employee handbook.

On May 18, 2011, Stewart faxed new copies of the work excuses to Love and explained that he had, in fact, given the excuses to Johnson. Later, Stewart provided a personally signed letter explaining that Johnson had been to see him in the clinic and that, to his knowledge, none of the work excuses were falsified. Johnson was not reinstated to his position.

Sometime after his termination, Johnson saw a physician at his regular doctor's office, who found that his blood pressure was normal and who advised him to use exercise to control it. Johnson did not offer any evidence to show the specific date on which this follow-up visit took place. Nor did Johnson offer evidence that he had any further communication or appointments with Stewart regarding treatment for or updates on his condition.

Johnson filed this action, alleging violations of the FMLA.5 The district court granted summary judgment in favor of U.S. Steel, concluding that Johnson had not provided sufficient notice of his need for FMLA leave and that Johnson had not established that his employer's proffered reason for terminating him was pretextual.


We review a grant of summary judgment de novo. Bosley v. Cargill Meat Solutions Corp., 705 F.3d 777, 779 (8th Cir. 2013). A movant is entitled to summary judgment " if 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). The moving party bears the initial responsibility of informing the district court of the basis for its motion and identifying those materials, if any, that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Assuming there has been adequate time for discovery, the court must enter summary judgment if the nonmovant then " fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.

We have recognized three categories of FMLA claims arising under 29 U.S.C. § 2615(a)(1)-(2) : (i) entitlement claims, in which an employee alleges a denial of a benefit to which he was entitled under the statute; (ii) discrimination claims, in which an employee alleges that the employer discriminated against him in the terms and conditions of employment because the employee exercised rights to which he was entitled under the FMLA; and (iii) retaliation claims, in which an employee alleges

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that the employer took adverse action against him for opposing a practice made unlawful under the FMLA. Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005-06 (8th Cir. 2012). Johnson's complaint alleges that U.S. Steel interfered with his FMLA rights, failed to provide him with notice of his rights and obligations under the FMLA, failed to reinstate him when his leave ended, and retaliated against him for taking FMLA leave. Although Johnson labels his claims " retaliation" and " interference" claims, for clarity and consistency with our more recent FMLA cases, we will refer to them as " entitlement" and " discrimination" claims. See id.

To succeed on his entitlement claim for failure to reinstate, Johnson must establish that he was, in fact, entitled to FMLA leave and reinstatement. See Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006) (" In an [entitlement] claim, an 'employee must show only that he or she was entitled to the benefit denied.'" (quoting Russell v. N. Broward Hosp., 346 F.3d 1335, 1340 (11th Cir. 2003))). Similarly, to succeed on his claim that he was discriminated against for taking leave, Johnson must show that he was entitled to leave under the FMLA. See Darby v. Bratch, 287 F.3d 673, 680 (8th Cir. 2002) (noting that an employee " could be disciplined for taking unpaid leave not covered by the FMLA" ). Since Johnson argues that he was entitled to FMLA leave due to his high blood pressure, both of these claims are necessarily predicated on the existence of a qualifying serious health condition. See Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1147 (8th Cir. 2001) (" Where absences are not attributable to a 'serious health condition,' . . . [the] FMLA is not implicated and does not protect an employee against disciplinary action based upon such absences." ); Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190, 1195 (8th Cir. 2000) (" Where an employee has not shown his absences to be a result of a serious health condition, he is not protected by the FMLA." ).

The FMLA entitles an employee to twelve workweeks of leave during a...

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