F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 19 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
BOBBY DRY,
Plaintiff - Appellant,
v. No. 01-3294
(Kansas)
THE BOEING COMPANY, (D.Ct. No. 00-CV-1206-MLB)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Circuit Judge, ANDERSON, Senior Circuit Judge, and
O’BRIEN, Circuit Judge.
Bobby Dry appeals the district court’s determination that his former
employer, The Boeing Company, did not interfere with his leave under the Family
and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., or violate its
progressive discipline policy when terminating his employment. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
FACTUAL BACKGROUND
Dry was employed at Boeing in 1986. 1 Between 1995 and 1997, he utilized
the FMLA on several occasions to care for his wife, Debra Michelson, who
suffers from bipolar disorder. During this period, all his requests for leave were
granted and all requisite forms were completed by Dry and Boeing supervisors.
On Friday, March 6, 1998, Dry’s wife was again experiencing problems as
a result of her bipolar disorder. 2 On Monday, Dry remained at home to care for
his wife and, as events progressed, never returned to work. He reported his need
to be absent some time that week, and as his absence continued through March, he
called approximately once a week. 3 Each time he stated he would return to work
the following Monday, but then would fail to appear for his shift or call to explain
his absence. Eventually, Dry’s supervisor asked Bernie Grant, a personnel
representative, to investigate and determine when Dry would return to
1
Dry’s employment was interrupted in 1987 when he was terminated for excessive
absences. The union intervened and negotiated the termination into a resignation.
Because of this change, Dry was able to reapply for employment and was rehired six
weeks later.
2
Although the severity of Michelson’s illness allegedly required Dry’s presence at
home, she did not see her attending physician until her next regularly scheduled visit
nearly a month and a half later, on April 15, 1998.
3
Dry claimed he called once a week to report absences. However, he admitted that
when there was no answer, he did not leave a message or call the message machine
reserved for absences. Instead, he called back on another day.
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work. When Grant’s attempts at telephone contact were unsuccessful, he sent a
letter on April 2 informing Dry that his leave was not authorized and that, without
medical documentation, his absence constituted job abandonment. The letter
requested Dry provide Boeing with medical documentation by April 10, 1998.
Although Dry testified he tried to telephone Grant Monday through
Wednesday of the next week, the only telephone message for Grant was received
on April 10. Grant returned the call the same day and again explained the need
for medical documentation to justify the extended absences. Spurning the
urgency of Grant’s request, Dry asked his wife to obtain a doctor’s note at her
next scheduled appointment, five days later, on April 15, 1998. At that
appointment, Dr. Topping, his wife’s doctor, issued a handwritten note stating:
This is to certify that Bobbie [sic] Dry has been needed at home
during the illness of Debra Michelson, from the week of March 16,
1998, until the present. He is able to return to work at this time as
Mrs. Michelson no longer needs him to care for her at home.
(Appellee’s Supp. App. at 301.) Although the note stated Dry could return to
work as of April 15, he did not do so. Instead, he called and informed Grant he
had the doctor’s note, but the note mistakenly did not excuse him for the week of
March 9 through March 13, 1998. He did not inform Grant he was available for
work.
When Dry failed to contact Boeing by April 20, Grant notified the Union
that Boeing was about to begin termination proceedings and invited attempts to
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reconcile the situation. On April 21, 1998, Grant drafted, but did not finalize, a
letter terminating Dry for excessive absences. Grant’s assistant mistakenly
mailed the unsigned draft to Dry, who received it on April 22, 1998. The Union
called Dry shortly after he received the mistakenly-sent termination letter and
offered to help. Dry rejected this offer, stating he had already been terminated.
Dry hired an attorney and, following his attorney’s instructions, contacted
Dr. Topping to obtain the corrected medical documentation. Dr. Topping mailed
Dry a corrected medical note, dated April 27, 1998, conveniently stating: “[t]his
is to notify that Bobby Dry has been taking care of Ms. Michelson at home since
3/9/98 – 4/21/98. He is now able to return to work.” (Appellee’s Supp. App. at
303.) Dry allegedly mailed a copy of this new medical documentation to Boeing;
however, only an empty envelope arrived on May 4, 1998. By letter dated May
12, Grant informed Dry that Boeing had received only an empty envelope and
advised him if documentation was not received by May 15, 1998, the termination
paperwork would be processed. The doctor’s note arrived on May 15, the
deadline, and Boeing credited Dry with FMLA absences from March 9 through
April 21, 1998. However, the note did not explain absences after April 21, 1998.
Grant, still unaware Dry had received the draft termination letter, 4 sent a formal
Grant would not discover that the draft termination letter was sent until August
4
1998 when Dry testified in his unemployment compensation hearing.
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letter on May 20, 1998, terminating Dry for excessive absences, effective April
21, 1998.
Thereafter, Dry filed the instant lawsuit, alleging Boeing had interfered
with his FMLA rights by dismissing him from his position, and that he was fired
in retaliation for taking FMLA leave. Following a bench trial, the district court
held in favor of Boeing on both claims. Dry then filed a Motion to Amend the
Judgment pursuant to Fed. R. Civ. P. 52(b), alleging for the first time that Boeing
did not follow its progressive discipline policy. The court denied the motion. On
appeal, Dry alleges Boeing interfered with his rights under the FMLA, and that it
failed to follow its discipline policy. 5
DISCUSSION
When considering an appeal from a bench trial, we review the district
court’s factual findings for clear error and its legal holdings de novo. Keys Youth
Servs., Inc. v. City of Olathe, Kan., 248 F.3d 1267, 1274 (10th Cir. 2001).
Factual findings will be reversed only when they are “‘without factual support in
the record’ or if, ‘after reviewing all the evidence,’ we are ‘left with a definite
and firm conviction that a mistake has been made.’” Id. (quoting Manning v.
United States, 146 F.3d 808, 812 (10th Cir. 1998)).
5
Dry does not appeal the district court’s rejection of his retaliation claim.
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I. FMLA Violations
The FMLA requires employers with at least 50 employees to allow their
employees up to twelve weeks of annual leave to care for the employee’s or a
family member’s “serious health condition.” 29 U.S.C. § 2612(a)(1). Upon
return from FMLA leave, an employee is entitled to keep his/her previous
employment position or be given an equivalent position with equivalent pay,
benefits and other conditions of employment. 29 U.S.C. § 2614(a)(1). To verify
entitlement to FMLA leave, the employer may require certification by a health
care provider. 29 U.S.C. §§ 2613(a), 2614(c)(3)(A). Additionally, the employer
may require an employee who has a recurrent need to take FMLA leave to “obtain
subsequent recertifications on a reasonable basis.” 29 U.S.C. § 2613(e). The
employee must provide the medical certification “in a timely manner.” 29 U.S.C.
§§ 2613(a), 2614(c)(3)(B). Finally, taking FMLA leave does not insulate an
employee from being fired for other reasons. Gunnell v. Utah Valley State Coll.,
152 F.3d 1253, 1262 (10th Cir. 1998).
Section 2615(a) of the FMLA affords two avenues for recovery for an
employer’s interference with an employee’s FMLA rights:
(a) Interference with rights
(1) Exercise of Rights
It shall be unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to
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exercise, any right provided under this subchapter.
(2) Discrimination
It shall be unlawful for any employer to discharge or in
any other manner discriminate against any individual for
opposing any practice made unlawful by this subchapter.
On appeal, Dry abandons his discrimination/retaliation claim under subsection
(a)(2) and relies solely on 29 U.S.C. § 2615(a)(1). (Appellant’s Reply Br. at 2.)
In Smith v. Diffee Ford-Lincoln-Mercury, Inc., we distinguished the two
separate theories of recovery under 29 U.S.C. § 2615(a). 298 F.3d 955, 960 (10th
Cir. 2002). We identified subsection (a)(1) as the “interference/entitlement
theory” and subsection (a)(2) as the “retaliation/discrimination” theory. Id. We
stated in relevant part:
The interference or entitlement theory is derived from the FMLA's
creation of substantive rights. If an employer interferes with the
FMLA-created right to medical leave or to reinstatement following
the leave, a deprivation of this right is a violation regardless of the
employer's intent. King v. Preferred Technical Group, 166 F.3d 887,
891 (7th Cir. 1999). In such a case, "the employee must demonstrate
by a preponderance of the evidence only entitlement to the disputed
leave.... [T]he intent of the employer is immaterial." Id. However,
we are also mindful that "[u]nder FMLA, an employee who requests
leave or is on leave has no greater rights than an employee who
remains at work." Gunnell, 152 F.3d at 1262 (10th Cir. 1998) (citing
29 C.F.R. § 825.216(a)).
Id. at 960-61. Thus, a prima facie case under an interference/entitlement theory
requires a showing of FMLA leave entitlement, a denial of substantive rights
under the FMLA, and a causal connection between the two. Id. at 961.
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In Smith, we upheld a jury verdict concluding that the plaintiff’s FMLA
rights were violated when, while on leave, she was fired for failing to fully train
junior employees to perform her job. Id. at 959. Although the plaintiff had been
asked to train the junior employees prior to taking FMLA leave, the employer did
not monitor or impose a deadline for such training. Id. at 961. We determined
the jury could reasonably infer that had the plaintiff not become ill and taken
FMLA leave, there would have been no need for junior employees to perform her
work. Thus, her employer would have remained satisfied with her performance,
and she could have continued her employment indefinitely without training junior
employees. Id.
Dry contends his situation is similar. He claims the district court was
required to enter judgment in his favor because it is uncontested that:
Had he not been needed at home during his wife’s illness, . . . Mr.
Dry would not have needed medical verification of the recurrence.
Had the doctor’s first note been error-free, [he] would not have
needed a corrected note. Had the first termination letter for missing
work during the time [he] was home caring for his wife, a letter
which presumably would never have been sent if the first medical
note had been accurate, not been mailed, his absences from April 22
until the second termination letter arrived would never have been
incurred.
(Appellant’s Reply Br. at 5.) Thus, seemingly content to live in the house that
Jack built, he concludes his dismissal is directly connected to his entitled FMLA
leave.
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That reasoning is fatally flawed. In regards to the absences prior to April
21, Dry failed to perform his FMLA duties. He had a duty to timely provide the
medical documentation requested, which he virtually ignored. 29 U.S.C.
§§ 2613(a), 2614(3)(a). He did not respond in any way to Boeing’s written
request, dated April 2, 1998, until the first deadline on April 10, when he merely
agreed to get the documentation. On April 16, Dry informed Boeing he did not
have correct documentation, but would get it. Despite his receipt of Dr.
Topping’s permission to return to work as of April 15, Dry did not return to work
and did not submit the corrected documentation until May 15, nearly six weeks
after Boeing’s initial request. Thus, he failed to satisfy his duty under the FMLA
to timely provide the necessary medical documentation.
Further, in argument totally excusing his own conduct, Dry claims his
unexcused absences after April 21,1998, were Boeing’s fault. He asserts he did
not return to work on April 22 because he received a termination letter in the mail
on that day. The logic eludes us. At best, his wife’s doctor excused him only
through April 21. Dry’s shift started at 7 a.m.; we presume the mail is not
delivered until some time after that, so he should have been at work on April 22.
Had he gone to work, he would have avoided any confusion created by the draft
termination letter.
Despite his tardiness in providing the requested documentation, Boeing
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generously granted Dry FMLA leave for all days for which he submitted medical
documentation—March 9 to April 21, 1998. However, in the absence of an
entitlement under the FMLA, he had no excuse for being absent from work from
April 21 forward. 6 Consequently, his termination was caused by voluntarily
missing weeks of work without explanation. His attempt to connect his
termination to his FMLA leave is unavailing. See Gunnell, 152 F.3d at 1262.
II. Progressive Discipline Policy
Dry contends the district court erred in denying his Motion to Amend the
Judgment based on Boeing’s failure to follow its progressive discipline policy.
We disagree. Boeing’s “Attendance Standard Policy” specifically exempts certain
situations from progressive discipline. Section IV.D of the policy states:
Each day of a period of consecutive unpaid days of absence, for other
than verifiable medical reasons, shall be considered as separate
infractions. [Note: Unreported absences of four or more consecutive
work days . . . may result in dismissal of the employee for “Extended
Absence”. (Code 32)].
6
Dry asserts the district court abused its discretion by basing its decision solely on
Dry’s absences between April 16 and April 21, 1998. He reasons this was the sole basis
of the court’s decision because the district court found Dry could reasonably have
believed he was fired as of April 22, 1998, but his absences between April 16 and 21
remained unexplained. Dry v. Boeing Co., Order and Memorandum Opinion, No. 00-
1206 at 9 (D. Kan. July 9, 2001). While the district court did find the mistakenly sent
draft could be misleading, the court’s decision was not as narrow as Dry represents.
He also argues “Boeing’s acceptance of Dr. Topping’s note . . . through April 21,
1998 created a governing fact which the district court was obligated to recognize in
resolving the parties’ dispute.” (Appellant’s Br. at 22.) Dry offers no legal authority or
cogent argument to support his objection. Therefore, we will not consider it on review.
Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992) (citation omitted).
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(Appellant’s App. at 159.) Dry accumulated approximately three weeks of
unexcused absences after his documented FMLA leave. These absences totaled
nearly four times the minimum required to dismiss an employee for extended
absences under the policy. Consequently, the district court correctly determined
Boeing did not violate its progressive discipline policy. 7
CONCLUSION
There is ample support in the record to establish that Dry’s termination for
excessive absenteeism did not violate his FMLA rights and Boeing followed its
disciplinary policy. Accordingly, we AFFIRM.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
7
Dry’s request that his case be assigned to a new district court judge on remand is
moot as we find against him on all claims.
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