United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3005
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Laura Estrada, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Cypress Semiconductor *
(Minnesota) Inc. *
*
Appellee. *
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Submitted: May 12, 2010
Filed: August 17, 2010
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Before BYE, MELLOY, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Cypress Semiconductor (Minnesota) Inc. ("Cypress") terminated Laura Estrada
in April 2008 for poor attendance. Estrada contends that one of the absences was
protected by the Family and Medical Leave Act ("FMLA") and that Cypress
improperly counted that absence against her in assessing her attendance. The district
court1 granted summary judgment to Cypress, and Estrada appealed. We affirm.
1
The Honorable Paul A. Magnuson, United States District Court Judge for the
District of Minnesota.
I. Background
Cypress enforces its written attendance policy largely through progressive
disciplinary actions. The company may assess employees points based on the nature
of the attendance issue. As relevant here, no points are assessed for absences scheduled
in advance or FMLA-protected absences. A single point is assessed for a full-day,
unscheduled absence or undocumented illness. A half-point is assessed for an illness
documented by a doctor's note, an unscheduled "lateness," or an unscheduled "early
quit." Employees receive written warnings depending on the frequency of the
infractions. Accumulation of three points in any rolling three month period results in
a Level I attendance warning and triggers a sixty-day period of review. An additional
attendance violation of a half-point or more while on review results in a Level II
warning and extends the review period by an additional sixty days; likewise, an
infraction of half-point after a Level II warning results in a Level III warning and
extends the review period. Certain actions, however, result in written warnings
regardless of the points the employee has accumulated. For example, failure to call a
manager or supervisor to explain an unscheduled absence constitutes a "no call, no
show" and automatically triggers a Level II warning or advances the employee to the
next level if he or she already has a written warning.
Grounds for termination based on absenteeism include: (1) accumulation of an
additional half-point while on a Level III warning; and (2) accumulation of five points
or more during a six-month period, regardless of attendance warning status. The policy
also contains a leniency provision stating that "[a]bsences of a compelling nature will
be considered in determining if the final incident is cause for termination."
Estrada worked nights as a technician on a Cypress production line from
Sunday through Tuesday and every other Wednesday. On Wednesday, February 12,
2008, Estrada had a pre-operation appointment with HealthPartners Same Day Surgery
Center ("HealthPartners") for an outpatient cyst-removal surgery. HealthPartners
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informed her that it would call to schedule the surgery for that week or the following
week. During her next scheduled shift, on Sunday, February 17, Estrada informed her
supervisor that she was having "surgery" and that she would be "absent" or "sick." She
testified that she requested the following Sunday off "just in case" from her supervisor,
who approved the absence. She also stated that she put in a request for time off through
Cypress's computer system.
The surgery was ultimately scheduled for Friday, February 22, one of Estrada's
typical days off. HealthPartners issued Estrada a return-to-work slip stating she could
resume work Monday, February 25 "if comfortable." On Sunday, February 24, Estrada
called in "sick" for her shift. She returned to work on Monday night and left the return-
to-work slip on her supervisor's desk because he was not there. She also gave a
photocopy of the slip to Russ Guski, a manager. Cypress's records nonetheless list
Estrada as taking a full-day, unscheduled absence on February 24. Cypress's records
reveal several subsequent absences in March.
Estrada received a written Level II warning effective March 31 that forms the
heart of this litigation. The warning listed the absences for which she was being
disciplined, including February 24, the Sunday following her surgery. The warning
form further noted that she had accumulated a total of 4.5 attendance points. Guski
testified this total included a full point for the February 24 absence. The warning then
cited to the provision in Cypress's policy stating that five or more points in a six-month
period may result in termination and noted further violations may result in disciplinary
action up to and including termination. Estrada did not challenge the point assessed
for the February 24 absence in the space allotted for employee comments and signed the
warning form as presented.
One of the absences was later determined to be a documented illness and
mitigated accordingly, decreasing her total to four points. Guski confirmed that if the
February 24 absence was not taken into account, she would have acquired only three
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points by the time of the March 31 warning, resulting in a Level I rather than a Level
II warning.2
Thereafter, Estrada had additional attendance problems. On April 14, she came
to work late and subsequently left early because she aggravated an old foot injury.
Estrada called in sick on April 15 for the same reason and left a message with a co-
worker. She acknowledged, however, that she did not speak with a supervisor, as
required, and Guski later classified the absence as a no-call, no-show. Estrada returned
to work on April 16. Guski testified that he informed Estrada that morning that her job
was in jeopardy and warned her against additional attendance problems, including
taking extended unauthorized breaks. Later that day, she took a long break, which,
according to Cypress's records, lasted about an hour when Guski testified it should
have been only fifteen minutes. Estrada subsequently explained to human resources
("HR") that she left work to have lunch at Burger King and then stayed in her car "to
have a smoke." Guski suspended her, according to Estrada, for "violating my Level
II attendance warning."
2
Cypress also characterized an absence on March 25 as a no call, no show.
Estrada maintains that she did call on March 25, and that she verbally complained to
Guski about it being incorrectly classified on the warning. Estrada's statements during
deposition and a subsequent affidavit as to Guski's response are somewhat
contradictory. In any event, the warning was not revised, and as noted above, she
signed the form as-is. Guski testified that the no call, no show would have
automatically resulted in a Level II warning, despite her attendance points, and that
it was issued to her in part on this basis. Cypress asserts that based on the March 25
no call, no show, and the April 15 no call, no show discussed below, it had yet another
non-FMLA basis for terminating her. These issues are not material to our analysis and
we do not address them further in this opinion.
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After sending Estrada home, Guski completed a Level III warning form, noting
that Estrada was already on a Level II warning and listing the attendance problems
between April 14 and April 16. Guski recommended termination and handed Estrada's
case over to HR, which he testified acted as the final decision-maker.
The following day, Estrada met with HR. HR questioned her concerning the
April absences, including the final incident. Estrada acknowledged to HR that she was
aware her job was in jeopardy and stated she did not know why she took an extended
break on April 16 when she knew she already had an attendance warning. When asked
if she had any information she wished to share with HR, Estrada mentioned problems
with other employees but again said nothing about the point assessed for the February
24 absence. According to Estrada, HR informed her that she was terminated for
violating the Level II warning. Guski agreed with her interpretation during his
deposition, elaborating that "the chain of events, she was put on attendance warning
for missing work, no call, no showing. And what the final reason for her being
terminated was after being counseled by me about her current status . . . she an hour
later decided that she was going to take an extended break[.]"
Estrada does not dispute that she accumulated 5.5 attendance points aside from
the February 24 absence at the time of her termination. As noted above, she had
accumulated three other points by time of the March 31 warning. Cypress assessed her
one point for the April 14 unscheduled "lateness" and "early quit" and another point
for the April 15 absence. Estrada acknowledged to HR that she did not see a doctor
for these absences. The long break on April 16 constituted an additional half-point,
according to Guski. When asked during deposition, "What happens if someone has
five points?," Guski responded "I believe they are terminated."
Estrada subsequently brought suit for interference with her FMLA rights. She
claimed that the February 24 absence following her surgery was FMLA-protected and
that Cypress improperly counted the absence against her in assessing her attendance.
Cypress responded that the surgery did not constitute a serious health condition, that
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Estrada had failed to give adequate notice of the need for FMLA leave, and that her
attendance was poor enough in March and April 2008 to warrant termination regardless
of her taking FMLA leave. The district court found material questions of fact existed
as to whether Estrada suffered a serious health condition and whether she had provided
sufficient notice. It granted summary judgment to Cypress, however, holding that even
accepting Estrada's FMLA claim as true, the company had shown adequate grounds for
her termination apart from that absence because she had accumulated more than five
points in a six month period.
II. Discussion
"We review the district court's grant of summary judgment de novo." Bacon
v. Hennepin County Med. Ctr., 550 F.3d 711, 714 (8th Cir. 2008). "Viewing the
evidence and drawing all inferences in favor of the non-moving party, summary
judgment is appropriate if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law." Id.
The FMLA entitles an employee to twelve work-weeks of leave during any
twelve-month period if she has a serious health condition that makes her unable to
perform the functions of her position. 29 U.S.C. § 2612(a)(1)(D). There are two types
of claims under the FMLA: interference and retaliation. Phillips v. Mathews, 547 F.3d
905, 909 (8th Cir. 2008). Estrada presents a claim of "interference," which occurs
when an employer's action deters or attaches negative consequences to an employee's
exercise of FMLA rights. See 29 U.S.C. § 2615(a)(1) (it is ''unlawful for any employer
to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right
provided under" the FMLA); Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th
Cir. 2006).
"This court has recognized that an employee can prove interference with an
FMLA right regardless of the employer's intent." Stallings, 447 F.3d at 1050.
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However, the FMLA is not a strict-liability statute. Throneberry v. McGehee Desha
County Hosp., 403 F.3d 972, 977 (8th Cir. 2005). An employee who requests FMLA
leave has no greater protection against termination for reasons unrelated to the FMLA
than she did before taking the leave. See id. Because an employee "cannot claim
protection from the FMLA for disciplinary action . . . as a result of absences that are
not attributable to [her] serious health conditions," sufficient unexecused absences may
justify her discharge under an employer's attendance policy. Bailey v. Amsted Indus.
Inc., 172 F.3d 1041, 1045–46 (8th Cir. 1999). Therefore, an employer who "interferes
with an employee's FMLA rights will not be liable if the employer can prove it would
have made the same decision had the employee not exercised the employee's FMLA
rights." Throneberry, 403 F.3d at 977; see also Bacon, 550 F.3d at 715; Phillips, 547
F.3d at 911–12. Assuming, without deciding on appeal, that Estrada's February 24
absence was FMLA protected and Estrada provided adequate notice of her need for
leave, we conclude Cypress has met the burden of proving it would have made the
same decision to terminate her regardless of the leave.
Estrada asserts that Cypress's articulated reason for firing her at the time was
based solely on her violation of the Level II warning, which improperly included the
disputed absence. She further argues that Cypress has shown only that it could have
fired her for violating the five-point rule and that it has failed to demonstrate that it
actually would have enforced this provision against her as an alternative basis for her
termination. She also notes the leniency provision in Cypress's attendance policy and
maintains Cypress might have found compelling circumstances weighed against her
termination. For these reasons, she asserts the district court erred in granting summary
judgment to Cypress.
We disagree. Here, the Level II warning form, which Estrada signed, cited the
five-points rule as grounds for termination if she continued to accumulate points. That
the warning included this provision is strong evidence that Cypress took this aspect of
its policy seriously in practice and that the company would have applied the provision
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in her case. Cf. Woods v. DaimlerChrysler Corp., 409 F.3d 984, 993–94 (8th Cir.
2005) (noting plaintiff had received a verbal warning from supervisor that further
violation of the employer's attendance policy could lead to discharge and concluding
that employer terminated the plaintiff for continued violations, as asserted). Guski's
testimony establishes that Estrada had acquired three points by the time of that warning
unrelated to her claimed FMLA-protected absence, and it is undisputed that she
accumulated 2.5 more in April 2008 despite both the written Level II warning and a
verbal warning the day of the final incident. His testimony further indicates that
Cypress actually and habitually enforces that policy; Estrada has pointed to no
evidence that it did not. Finally, nothing in the record suggests that Cypress would
have found the circumstances warranted leniency. HR discussed the April attendance
problems with Estrada. In doing so, it specifically questioned her as to why she took
a long break when she knew her job was on the line and noted that she essentially
provided no explanation. In sum, the combination of these factors is sufficient here to
establish that Cypress would have made the same decision notwithstanding Estrada's
exercise of her FMLA rights.
For the foregoing reasons, we affirm the judgment of the district court.
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