Chappell v. Bilco Co.

Decision Date05 April 2012
Docket NumberNo. 11–1243.,11–1243.
Citation114 Fair Empl.Prac.Cas. (BNA) 1089,18 Wage & Hour Cas.2d (BNA) 1641,675 F.3d 1110
PartiesJohnny CHAPPELL, Appellant, v. The BILCO COMPANY, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit


Luther Oneal Sutter, argued, Lucien Ramseur, on the brief, Benton, AR, for appellant.

Ellen Owens Smith, argued and on the brief, Khayyam M. Eddings, on the brief, Little Rock, AR, for appellee.

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

WOLLMAN, Circuit Judge.

Johnny Chappell was discharged from his employment with Bilco Company (Bilco) on August 10, 2007. He sued, alleging that his termination was the result of interference with and retaliation for his exercise of his rights under the Family Medical Leave Act (FMLA) and racial discrimination in violation of 42 U.S.C. § 1981. The district court 1 granted summary judgment for Bilco, and Chappell appeals. Because Chappell fails to raise a genuine issue of material fact that Bilco's actions were a pretext for discrimination, we affirm.


We state the facts in the light most favorable to Chappell. See Wierman v. Casey's Gen. Stores, 638 F.3d 984, 989 (8th Cir.2011). Chappell, an African American, was employed by Bilco from 2002 until his termination on August 10, 2007. He worked as a machine operator in the fabrication department under his direct supervisor, Gordon Bond (hereinafter, all references to “Bond” will relate to Gordon Bond unless otherwise indicated). In 2005, Chappell filed a complaint against Bilco alleging race discrimination and violations of his rights under the FMLA. Chappell and Bilco entered a settlement agreement in July 2006.

In September 2006 Bilco amended its attendance policy to require employees to call and speak with a supervisor, as opposed to leaving a message, to report that they would be absent from work. Employees are assessed points for absences, and points are associated with disciplinary actions. The attendance policy provides that an absence results in two points unless vacation is used. The penalty increases to three points if the employee is absent and fails to call and speak with a supervisor by eight a.m. When an employee accumulates four points he receives formal counseling from a supervisor; at five points, or if four points are reached more than once, the employee is issued a written warning; at six points, or another occurrence within 90 days of a written warning, the employee is suspended; and at seven points, or another occurrence within 120 days of a suspension, the employee is terminated. For each month without an occurrence, a point is subtracted from an employee's total. Bilco held meetings to explain the new policy to employees and ensured that each employee received a copy of the policy.

On October 2 and 3, 2006, Chappell was absent from work because his mother was having hip surgery. He left a message for Bond both days, but did not speak to him directly. When he returned to work on October 4, 2006, Chappell met with Al Collins, the plant manager, and Scott Williams, the lead man in Chappell's department. Collins confirmed that Chappell understood the attendance policy and then informed Chappell that he would be assessed three points for each of the two days he missed without speaking with a supervisor, which brought his point total to seven. Chappell then told Collins that the absences should be counted as FMLA leave and stated that Bond had told him that it was acceptable to call and leave a message, even though this contradicted the attendance policy. After questioning Bond, who denied making such a statement, Collins suspended Chappell for three days.2

Prior to his mother's hip surgery, Chappell requested FMLA paperwork. Bond told Chappell that he would have to get the paperwork from Cyndi Bond, Bilco's office supervisor, who gave Chappell a certification of health care provider to fill out and return. Chappell returned a certification that stated he would need to care for his mother while she recovered from surgery between October 2, 2006, and October 30, 2006. On December 4, 2006, Chappell turned in another certification stating that his mother suffers chronic hip and back pain and that she needed Chappell to drive her to her doctor's appointments.

Between October 2006 and July 2007, Chappell took FMLA leave to take his mother to doctor's appointments without being assessed points under the attendance policy.3 Chappell also worked points off his attendance total until April 2007, when he was assessed two more points. That brought his total to five, and he was issued a written warning.

On July 18 and 19, 2007, Chappell was absent from work, but he called and spoke to Gordon Bond both days. He did not mention that he was missing work to care for his mother. His mother did not have a doctor's appointment on either of these days, but she had attended a friend's funeral and she was very upset and having difficulty managing her blood sugar. Chappell, his sister, and other family members were with his mother to help her. When Chappell returned to work on July 20 he told Cyndi Bond that the absences should be covered under FMLA. Ms. Bond told Chappell that he would need to provide documentation from the doctor, as he had in the past, to avoid additional points under the attendance policy. Further, she told him that he could come in on July 23rd and speak with Collins about the matter. Because Chappell did not provide documentation by that date, Collins assessed him two points and, on July 24th, suspended him for three days. Collins informed Chappell at that time that if he provided documentation he would receive the wages lost during his suspension and the attendance points from the incident would be removed from his point total. Chappell failed to provide any documentation.

On August 2, 2007, Chappell's mother had a doctor's appointment, and he informed his supervisors that he would be missing work and needed FMLA leave. In a July 31, 2007, meeting, Chappell was told that, because production demands were high, he was expected to be at work before and after the appointment and that he should inform Bond of the appointment time so that Bond would know when to expect Chappell at work. Chappell did not inform Bond of the appointment time and was absent the entire day. Chappell was assessed one point for missing a half day not covered by FMLA; the other half was counted as FMLA leave. This incident constituted an occurrence within 90 days of Chappell's July suspension, and he was terminated on August 10, 2007.

In November 2008, Chappell filed this suit, alleging violations of the FMLA, the Arkansas Civil Rights Act, and 42 U.S.C. § 1981. This district court granted Bilco's motion for summary judgment on all claims, and Chappell appeals his claims under the FMLA and § 1981.


We review a grant of summary judgment de novo, “viewing all evidence and drawing all reasonable inferences, without resort to speculation, in favor of the nonmoving party.” Wierman, 638 F.3d at 993 (citing Hitt v. Harsco Corp., 356 F.3d 920, 923–24 (8th Cir.2004)). Summary judgment is appropriate when 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. “There is no ‘discrimination case exception’ to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial.” Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.2011) (en banc) (citing Fercello v. County of Ramsey, 612 F.3d 1069, 1077 (8th Cir.2010)).


An employee can make two types of FMLA claims. In an interference claim “the employee alleges that an employer denied or interfered with his substantive rights under the FMLA,” and in a retaliation claim “the employee alleges that the employer discriminated against him for exercising his FMLA rights.” Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir.2008) (quoting Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir.2006)). Chappell makes both claims.4

An employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right” under the FMLA. 29 U.S.C. § 2615(a)(1). Interference with FMLA rights includes “manipulation by a covered employer to avoid responsibilities under FMLA.” Stallings, 447 F.3d at 1050 (quoting 29 C.F.R. § 825.220(b)). Although an employee “can prove interference with an FMLA right regardless of the employer's intent,” the FMLA “is not a strict-liability statute.” Estrada v. Cypress Semiconductor, Inc., 616 F.3d 866, 871 (8th Cir.2010) (citing Stallings, 447 F.3d at 1050; Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 977 (8th Cir.2005)); see also Lovland v. Emp'rs Mut. Cas. Co., 674 F.3d 806, 811–12 (8th Cir.2012) (affirming dismissal of an FMLA interference claim alleging that use of FMLA leave was a negative factor in a termination decision, and holding that the claim would fail at the summary judgment stage for lack of proof of discriminatory intent).

Chappell alleges that Bilco interfered with his rights under the FMLA in the October 2006, July 2007, and August 2007 incidents. Bilco counters that Chappell was assessed points in each incident for violating the company's attendance policies, not for exercising his rights under the FMLA.

First, Chappell contends that Bilco interfered with his FMLA rights when it assessed him six points for his absences on October 2 and 3, 2006. Bilco argues that it assessed points for Chappell's failure to call and speak with a supervisor, as required by the attendance policy. A company may take action against an employee for violating the company call-in policy when the employee is on FMLA leave. See Bacon v. Hennepin Cnty. Med. Ctr., 550 F.3d 711 (8th Cir.2008) (upholding an employee's termination for failure to call in while on FMLA leave).

Chappell claims that Bond lied to him and told...

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