Lutes v. United Trailers, Inc., No. 19-1579

• Decision Date: 27 January 2020
• Docket Number: No. 19-1579
• Citation: 950 F.3d 359
• Parties: Brandi LUTES, Personal Representative of the Estate of Buddy F. Phillips, Plaintiff-Appellant, v. UNITED TRAILERS, INC., and United Trailers Exporting Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

950 F.3d 359

Brandi LUTES, Personal Representative of the Estate of Buddy F. Phillips, Plaintiff-Appellant,

v.UNITED TRAILERS, INC., and United Trailers Exporting Inc., Defendants-Appellees.

No. 19-1579

United States Court of Appeals, Seventh Circuit.

Argued November 13, 2019

Decided January 27, 2020

Opinion Issued February 13, 2020^*

Johnny W. Ulmer, Attorney, ULMER LAW OFFICES, Bristol, IN, for Plaintiff-Appellant.

Michael Paul Palmer, Attorney, BARNES & THORNBURG LLP, South Bend, IN, for Defendants-Appellees.

Before Bauer, Brennan, and Scudder, Circuit Judges.

Per Curiam.

Buddy Phillips (now deceased) injured his ribs while playing with his grandchildren. Over the next two weeks he called his employer, United Trailers, to report he would miss work. Eventually Phillips stopped calling in and did not appear for work on three consecutive days so United fired him. He sued, alleging United failed to properly notify him of his rights under the Family Medical Leave Act ("FMLA") and that he was fired in retaliation for attempting to exercise his right to seek leave under that Act. The district court granted summary judgment for United. This appeal presents a complicated fact pattern under the FMLA in which the employee (through unreported absences) and the employer (by failing to inform the employee of requisite information about FMLA leave) may have failed to comply with the FMLA. We affirm the district court’s judgment as to Phillips’s retaliation claim but vacate the court’s judgment concerning Phillips’s interference claim and remand for further proceedings consistent with this order.

I. Background

Phillips was employed by United Trailers, Inc., from 2002 until he was fired in 2015. United manufactures enclosed cargo trailers and employs over 130 people. Phillips worked as a metal department trimmer installing fenders, trim, and lights to the back of trailers. Like a typical United production worker, he worked eight to ten hours a day, depending on production needs.

On July 3, 2015,¹ Phillips injured his ribs while playing with his grandchildren. The next day he went to the hospital and was diagnosed with fractured ribs. X-rays also revealed heart issues that required additional testing. The medical notes from Phillips’s visit reflect that he was told to conduct "activity as tolerated." He still felt pain, however, and returned to the emergency room six days later.

Phillips’s first scheduled workday after the holiday was July 6. He was unable to work because of his ribs, so he called in to report his absence. United’s attendance policy requires employees to report absences by calling United’s main telephone number and leaving a message no later than fifteen minutes before the start of a scheduled shift. Employees who do not comply with this procedure accrue "points," and an employee who accrues thirteen points will be fired. Under this system, an employee who fails to call in for three consecutive days will accrue fifteen points. Phillips’s widow, Rhonda, testified Phillips knew United’s attendance policy.

On the days he was scheduled to work over the next two weeks, Phillips (or Rhonda on his behalf) telephoned in his absences in accordance with United’s attendance policy. He called off work on July 6, 7, 8, 14, and 16. These calls were reported and logged by Linda Nichols, a payroll assistant at United, in a "call-in log." Nichols testified she keeps a record of all reported absences in the call-in log, and she regularly reviews the log with the director of human resources so he can identify and address attendance policy violations. Nichols’s entry in the call-in log for July 6 lists "rib," without elaboration, as Phillips’s reason for his absence that day. No other entry lists a reason for Phillips’s absence. Rhonda attested that at some point in early July, she had told Nichols that Phillips had fractured his ribs and he would not be at work for a while. But Nichols testified that other than the July 6 "rib" note in the call-in log (that she reproduced from Phillips’s voicemail), neither Phillips nor Rhonda provided any further explanation for his absences.

Randy Snyder, the plant manager, also listens to employee voicemails describing absences, and he passes that information on to "group leaders" so they know if an employee will miss their scheduled shift. Rhonda testified she and Phillips both had called Snyder and told him Phillips had fractured his ribs and he needed time off to recover and have testing done on his heart. Snyder recalled one brief conversation with Rhonda about Phillips’s "chest area." Rhonda also testified she spoke with Nichols about seven times, trying to get in touch with Snyder to discuss Phillips’s absences, but she was unable to reach him.

Also of note, United’s director of human resources testified that neither Nichols nor Snyder had any certification in human resources or the FMLA.

Phillips followed up with his primary care physician on July 15, who recommended he not return to work until early August. Phillips did not provide documentation of that visit or his physician’s recommendation to United.

After two weeks of not being able to work, Phillips stopped reporting his absences to United. Specifically, he did not call in to report his absences on July 20, 21, 22, or 23. As a result, he accrued more than 13 points, and United promptly fired him. Up to this point, Phillips had not provided to United medical records about his fractured ribs. United had not asked for any such information, nor had it informed Phillips of his ability to take leave under the FMLA. Rhonda testified had Phillips known he was able to take leave under the FMLA, he would have done so.

Phillips sued asserting United violated the FMLA, 29 U.S.C. § 2617, by interfering with his "entitlement to leave" when it failed to inform him of his eligibility and rights under the Act. He also claimed United fired him in retaliation for exercising his FMLA rights. To prevail on a claim that an employer interfered with the employee’s rights under the FMLA, the employee must demonstrate (1) he was eligible for the FMLA, (2) his employer was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled. 29 U.S.C. § 2615 ; Guzman v. Brown Cty. , 884 F.3d 633, 638 (7th Cir. 2018). To establish retaliation, an employee must demonstrate he was engaged in a protected activity, the employer took an adverse employment action against him, and there was a connection between his protected activity and the adverse employment action. See Curtis v. Costco Wholesale Corp. , 807 F.3d 215, 220 (7th Cir. 2015).

Regarding Phillips’s interference claim, the district court acknowledged triable questions existed over whether Phillips’s rib injury was a serious medical condition. The court noted the record was thin on this point: Phillips was diagnosed with a broken rib and told to perform activity as tolerated; his primary care physician told him to not return to work until August; and his wife and daughter testified Phillips’s ability to walk and lift his arms were impaired. While the proof was sparse, the court ruled a reasonable jury could conclude Phillips’s rib injury was a qualifying serious medical condition. Next, the district court determined that questions of fact existed as to whether Phillips provided adequate notice of his injury to United. The court noted that the evidence showed Phillips had called United and communicated his rib injury. While the parties disputed the precise contents of the conversation, because Phillips had done more than merely ask for time off—he provided a reason for his absence—it was a material question of fact for the jury to decide whether Phillips had provided adequate notice.

Notwithstanding these rulings, the district court ultimately entered summary judgment for United. The court concluded that because it was undisputed Phillips had eventually stopped calling United to report his absences, that failure precluded his FMLA-interference claim. In support of this conclusion, the district court cited to Righi v. SMC Corp. of Am. , 632 F.3d 404 (7th Cir. 2011). In Righi , this court noted the FMLA regulations "explicitly provide that employers may require their employees to comply with their ‘usual and customary notice and procedural requirements’ when requesting FMLA leave." Id. (quoting 29 C.F.R. § 825.302(d) (2006) ). Citing prior cases that discussed § 825.302(d), we concluded "an employee’s failure to comply with his employer’s internal leave policies and procedures is a sufficient ground for termination and forecloses an FMLA claim." Id . at 411. Relying on Righi , the district court concluded Phillips’s failure to follow United’s attendance policy precluded his interference claim.

Turning to Phillips’s retaliation claim, the district court ruled Phillips had failed to present any evidence of discriminatory or retaliatory intent or even that he had engaged in protected activity. The only permissible inference from the record, the court concluded, was that United fired Phillips because he failed to comply with its attendance policy.

II. Discussion

We review the district court’s grant of summary judgment de novo. King v. Ford Motor Co. , 872 F.3d 833, 837 (7th Cir. 2017). We construe the facts and draw all reasonable inferences in a light most favorable to Phillips as the non-moving party. Id. Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).

A. Interference with FMLA Rights

Phillips primarily challenges the district court’s conclusion that United did not interfere with his rights under the FMLA. He does not dispute he failed to comply with United’s policies regarding absences, which ordinarily would foreclose his FMLA claim. See Righi , 632 F.3d at 411 ; 29 C.F.R. § 825.303...