Brandon Whittington v. Tyson Foods, Inc. ( 2021 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 20-3518
    ___________________________
    Brandon Whittington
    Plaintiff - Appellant
    v.
    Tyson Foods, Inc.
    Defendant - Appellee
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Jefferson City
    ____________
    Submitted: September 23, 2021
    Filed: December 29, 2021
    ____________
    Before KELLY, ERICKSON, and GRASZ, Circuit Judges.
    ____________
    GRASZ, Circuit Judge.
    While working at Tyson Foods, Inc. (“Tyson”), Brandon Whittington
    experienced severe depression and anxiety. As a result, he took intermittent leave
    under the Family and Medical Leave Act (“FMLA”), 
    29 U.S.C. § 2612
    . Tyson
    initially approved Whittington’s intermittent leave after Whittington produced
    certification from his psychiatrist. But when Whittington failed to produce
    recertification from his psychiatrist, Tyson terminated him. Whittington sued
    Tyson, asserting multiple claims, but the district court ultimately granted summary
    judgment in favor of Tyson. Whittington now appeals the district court’s 1 grant of
    summary judgment on his FMLA interference claim only. We affirm the district
    court’s grant of summary judgment in favor of Tyson.
    I. Background
    Whittington worked at Tyson from July 2016 to March 2018. Whittington
    was diagnosed with depression and anxiety. After consulting with his human
    resources (“HR”) supervisor, Whittington requested FMLA leave on August 3,
    2017. Whittington’s psychiatrist, Dr. Mary Beegle, certified his FMLA leave from
    August 3 to August 13, 2017. Dr. Beegle further stated that Whittington would
    continue to suffer episodes of anxiety and depression, lasting four to five days per
    episode, once or twice every one to two months for the next twelve months. Tyson
    approved Whittington’s August leave request and further approved Whittington to
    take FMLA leave on an intermittent basis going forward under Dr. Beegle’s
    certification.
    Tyson’s Leave of Absence policy required employees returning from FMLA
    or non-FMLA medical leave to provide “a Return to Work Certification from their
    health care provider indicating that they are able to resume work, with or without
    reasonable accommodation.” After Whittington returned to work on August 13, he
    submitted a Return to Work Certification form completed by Dr. Beegle. In this
    certification, Dr. Beegle indicated Whittington could return to work without any
    restriction. Whittington continued to use Dr. Beegle’s certification for approved
    intermittent FMLA leave on September 28, October 3, December 4, and December
    5, 2017.
    1
    The Honorable Nanette K. Laughrey, United States District Judge for the
    Western District of Missouri.
    -2-
    Whittington again requested FMLA leave from December 8 to December 18,
    2017. Tyson responded by informing Whittington of his rights and responsibilities
    under the FMLA and notifying Whittington he had until December 27, 2017, to
    provide information supporting his FMLA leave request. Whittington timely
    submitted certification from Dr. Beegle stating that Whittington needed to take the
    requested FMLA leave. Again, the certification stated that Whittington would need
    intermittent leave for episodes lasting four to five days per episode, once or twice
    every one to two months for the next year. Whittington also provided a Return to
    Work Certification from Dr. Beegle indicating Whittington could return to work
    without restrictions. Tyson approved Whittington’s leave. Whittington continued
    to use intermittent FMLA leave on December 20 and December 21, 2017, and
    January 3, January 4, January 31, and February 1, 2018.
    Then, between February 12 and March 5, 2018, Whittington called Tyson’s
    automated attendance hotline every morning to report he was unable to work. On
    March 6, 2018, Whittington returned to Tyson after missing sixteen consecutive
    workdays. Whittington met with an HR supervisor and provided a note from Dr.
    Beegle requesting Tyson to excuse Whittington’s absence from February 12 to
    March 5, 2018, because they had been adjusting his medication. Unlike Dr. Beegle’s
    prior return-to-work notes, this note was completed on Dr. Beegle’s stationary—not
    Tyson’s official form—and failed to mention whether Whittington could return to
    work and if there were any work restrictions. The HR supervisor requested
    Whittington to provide an updated note indicating his ability to work and whether
    there were any work restrictions.
    Later that day, Whittington submitted a revised Leave of Absence application
    requesting FMLA leave from February 19 to March 9, 2018. Tyson advised
    Whittington of his rights and responsibilities under the FMLA and informed him he
    had until March 21, 2018, to provide “sufficient certification” to support his request.
    Whittington, however, did not return to work on March 9, 2018, as indicated on his
    application.
    -3-
    Whittington called Tyson’s absence hotline from March 7 to March 14, 2018,
    to report he was unable to work. But those calls stopped on March 14, 2018.
    Whittington’s HR supervisor and other supervisors unsuccessfully attempted to
    contact Whittington multiple times. Whittington alleged that, at some point, he
    notified someone at Tyson he was unable to reach Dr. Beegle but could not recall
    when this happened, who he spoke to, or what he specifically said. Under Tyson’s
    Attendance policy, “[t]hree (3) consecutive days absent without notifying the
    Company [is] considered Job Abandonment.” Tyson’s Leave of Absence policy
    also stated that “[t]ermination of employment may occur if a Team Member does
    not return to work at the end of the approved [leave of absence]” or “if the person
    fails to obtain an extension of the Leave prior to its expiration[.]”
    Whittington did not return his FMLA certification paperwork by March 21,
    2018. Two days later, Tyson terminated Whittington’s employment. Tyson’s
    termination form stated that Whittington was terminated for his failure to both return
    from leave on March 9 and communicate with Tyson. Whittington’s HR supervisor
    also explained these two reasons to him.
    Whittington sued Tyson asserting multiple claims, including one for FMLA
    interference. Tyson moved for summary judgment on all of Whittington’s claims,
    while Whittington cross-moved for summary judgment on his FMLA interference
    claim. The district court granted Tyson’s motion for summary judgment on all
    claims and denied Whittington’s cross-motion. Whittington appeals the district
    court’s order granting Tyson summary judgment and denying Whittington’s cross-
    motion on his FMLA interference claim.
    II. Analysis
    A. Recertification
    Whittington argues the district court erred in finding no genuine issue of
    material fact existed as to whether Tyson’s March 2018 recertification request and
    -4-
    Tyson’s termination interfered with his FMLA rights. We review the entry of
    summary judgment de novo. Evans v. Coop. Response Ctr., Inc., 
    996 F.3d 539
    , 544
    (8th Cir. 2021). In doing so, we view the facts in the light most favorable to
    Whittington. See 
    id.
     Summary judgment is appropriate “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 FMLA entitles employees up to twelve workweeks of leave during any
    twelve-month period for various medical-related circumstances. 
    29 U.S.C. § 2612
    (a)(1). One such circumstance allows an employee to seek FMLA leave
    based on “a serious health condition that makes the employee unable to perform the
    functions of [his] position[.]” 
    Id.
     § 2612(a)(1)(D). To protect this right, the FMLA
    allows employees to sue employers who “interfere with, restrain, or deny”
    employees their right to FMLA leave. Id. §§ 2615(a)(1), 2617(a). To establish an
    FMLA interference claim, a plaintiff must show he was: “(1) entitled to a benefit
    under the FMLA, (2) the employer interfered with that entitlement, and (3) the
    reason for the denial was connected to the employee’s FMLA leave.” Thompson v.
    Kanabec Cnty., 
    958 F.3d 698
    , 705 (8th Cir. 2020). An otherwise successful FMLA
    interference claim “will fail unless the employee also shows that the employer’s
    interference prejudiced the employee as the result of a real, remediable impairment
    of [his or] her rights under the FMLA.” 
    Id.
     at 705–06 (quoting Massey-Diez v. Univ.
    of Iowa Cmty. Med. Servs., Inc., 
    826 F.3d 1149
    , 1158 (8th Cir. 2016)).
    Whittington asserts Tyson interfered with his FMLA rights by requiring
    recertification from Dr. Beegle in March 2018. It is undisputed that an employer
    may require certification from an employee’s healthcare provider to support an
    FMLA leave request and, “on a reasonable basis,” request recertification. 
    29 U.S.C. § 2613
    (a), (e). Under the Department of Labor’s regulations, “[i]f the medical
    certification indicates that the minimum duration of the condition is more than 30
    days, an employer must wait until that minimum duration expires before requesting
    -5-
    recertification[.]” 
    29 C.F.R. § 825.308
    (b). 2 Three exceptions to this rule are
    specified. 
    Id.
     § 825.308(c)(1)–(3). Relevant to this appeal, if the “[c]ircumstances
    described by the previous certification have changed significantly[,]” an employer
    may request recertification before 30 days. Id. § 825.308(c)(2).
    Tyson’s March 2018 recertification request came before the minimum
    duration of Whittington’s condition expired—one year after Dr. Beegle’s December
    2017 certification and before the six-month minimum allowed under 
    29 C.F.R. § 825.308
    (b). But based on the record’s undisputed facts, this recertification request
    was reasonable because there was a significant change in the circumstances of
    Whittington’s absences.      Dr. Beegle’s certification explicitly stated that
    Whittington’s leave would be taken in four-to-five-day increments. Whittington’s
    February 12 to March 5, 2018, leave was sixteen consecutive days long—over three
    times the amount of time allotted for a single increment certified by Dr. Beegle.
    Before Whittington’s sixteen-day leave, his longest FMLA leave period was only
    ten days. On these undisputed facts, we agree no reasonable jury could find that
    Whittington’s sixteen-day absence was not a significant change in circumstances.
    Whittington argues his consecutive sixteen-day leave was not a significant
    change in circumstances under 
    29 C.F.R. § 825.308
    (c)(2). However, the
    regulation’s own example indicates otherwise. The example states:
    [I]f a medical certification stated that an employee would need leave
    for one to two days . . . and the employee’s absences . . . lasted four
    days each, then the increased duration of absence might constitute a
    significant change in circumstances allowing the employer to request a
    recertification in less than 30 days.
    2
    An employer, however, has the right to “request a recertification of a medical
    condition every six months in connection with an absence by the employee.” 
    29 C.F.R. § 825.308
    (b).
    -6-
    
    Id.
     Whittington claims his sixteen-day leave is distinguishable from the example
    because his leave was less than twice the maximum amount of leave Dr. Beegle
    anticipated in a one-month period.
    This is partially true—Dr. Beegle’s certification of Whittington taking leave
    twice a month in four-to-five-day increments allowed Whittington up to ten days per
    month. But Whittington’s sixteen consecutive days of leave more than tripled the
    length of consecutive leave days certified by Dr. Beegle. This change in
    circumstances is legally significant. As a result, Tyson’s request for recertification
    was reasonable as a matter of law under 
    29 U.S.C. § 2613
    (e) and did not interfere
    with Whittington’s FMLA rights.3 We thus affirm the district court’s grant of
    summary judgment in favor of Tyson on Whittington’s FMLA interference claim.4
    3
    Whittington argues the district court erred in determining reasonableness as
    a matter of law because, he asserts, all questions of reasonableness must go to a jury.
    Whittington provides no on-point authority to support his argument, and our caselaw
    generally rejects Whittington’s assertion. Cf. To v. U.S. Bancorp, 
    651 F.3d 888
    ,
    892–93 (8th Cir. 2011) (explaining summary judgment “is appropriately granted
    when an employer’s decision to terminate an employee is reasonable as a matter of
    law”). Further, the Sixth Circuit has twice affirmed summary judgment rulings that
    held the employer’s request for recertification was appropriate as a matter of law.
    See Graham v. BlueCross BlueShield of Tenn., Inc., 521 F. App’x 419, 424 (6th Cir.
    2013) (unpublished) (using 
    29 C.F.R. § 825.308
    (c)(2) to hold that, as a matter of
    law, employer’s recertification request was reasonable because there was a
    significant change in circumstances); Smith v. City of Niles, 505 F. App’x 482, 484–
    85 (6th Cir. 2012) (unpublished) (same).
    4
    Whittington also argues the district court erred in failing to address his
    argument that Tyson interfered with his FMLA rights by violating 
    29 C.F.R. § 825.312
    . Specifically, Whittington argues Tyson interfered with his FMLA rights
    by requiring him to provide a fitness-for-duty certification and firing him before
    Whittington was able to procure this certification in violation of 
    29 C.F.R. § 825.312
    (f). The district court, however, properly disregarded this argument
    because Whittington failed to raise it in either his response in opposition to summary
    judgment or in his initial brief in support of his cross-motion for summary judgment,
    waiting until his reply brief to mention it. See Paskert v. Kemna-ASA Auto Plaza,
    -7-
    We also affirm the district court’s denial of Whittington’s cross-motion for summary
    judgment on his FMLA interference claim.
    III. Conclusion
    For the reasons set forth above, we affirm the district court’s grant of summary
    judgment in favor of Tyson.
    ______________________________
    Inc., 
    950 F.3d 535
    , 540 (8th Cir. 2020); Ames v. Nationwide Mut. Ins. Co., 
    760 F.3d 763
    , 771 (8th Cir. 2014).
    -8-
    

Document Info

Docket Number: 20-3518

Filed Date: 12/29/2021

Precedential Status: Precedential

Modified Date: 12/29/2021