NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0352n.06
No. 13-3261
FILED
UNITED STATES COURT OF APPEALS May 02, 2014
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
LARRY SCHRACK, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
v. ) SOUTHERN DISTRICT OF OHIO
)
R+L CARRIERS, INC., et al., )
)
Defendants-Appellees, )
BEFORE: BATCHELDER, Chief Judge; GRIFFIN, Circuit Judge; BELL, District
Judge.*
BELL, District Judge. This matter is before the Court on Appellant Larry Schrack’s
appeal of the jury verdict against him in his Family and Medical Leave Act (“FMLA”) retaliation
and disability discrimination claims, and the district court’s order granting summary judgment on
his FMLA interference claim and age discrimination claims.
Two issues are before the Court: (1) did the district court err in finding there was no
genuine issue of material fact regarding Appellant’s FMLA interference claim? and (2) did the
*
The Honorable Robert Holmes Bell, United States District Judge for the Western
District of Michigan, sitting by designation.
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district court err in excluding portions of Eugene Rhodes’s testimony from evidence at trial? For
the reasons that follow we AFFIRM the judgment of the district court.
I.
Appellee R+L Carriers Shared Services, LLC (“R+L”)1 hired Schrack on November 12,
2007, when Schrack was 55 years old. Schrack was hired as a Security Installation Technician
within R+L’s Security Installation Department. Schrack’s job duties were to drive an R+L
company vehicle to install and repair fire and security systems at R+L’s locations nationwide.
In 2008, Schrack began experiencing symptoms of grogginess and fatigue. On March 23,
2009, Schrack fell asleep in a meeting. R+L gave Schrack a verbal warning and informed him that
if he was caught sleeping on the job again, he would be fired. On March 31, 2009, Schrack was
on a job at the home of one of R+L’s owners, where he was discovered sleeping on a couch. He
was not fired on this day, but on April 1, 2009, while still at the same job site, Schrack was
discovered sleeping in a company van. He was then terminated.
Soon after, Schrack’s daughter called R+L to inform the human resources department that
Schrack had been hospitalized and was being treated for narcolepsy. She demanded Schrack be
reinstated and given FMLA leave time to recover. R+L forwarded an FMLA packet, which
Schrack and his physicians completed and returned. R+L reinstated Schrack and granted him
FMLA leave during April and May 2009.
Beginning in May 2009, and continuing through the end of that year, R+L terminated 68 of
its employees. Schrack received a release from his physician to return to work in June 2009 and
1
Plaintiff filed his complaint against R+L Carriers, Inc., R+L Carriers, and R+L Carriers
Shared Services, LLC. The district court dismissed “R+L Carriers” because that entity does not
exist and “R+L Carriers, Inc.” because that entity never employed Schrack.
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was approved to return to work by R+L benefits manager Scott Armour. R+L, however, requested
a more detailed back-to-work release, one that explicitly stated that Schrack would be able to
safely operate a vehicle. Schrack’s physician sent a more detailed release on June 11, 2009,
addressing R+L’s concerns. Schrack was terminated on June 12, 2009.
Schrack sued, alleging (1) R+L interfered with his rights to take leave under the FMLA;
(2) R+L fired him in retaliation for exercising his FMLA rights; (3) R+L fired him because of a
disability, in violation of the Americans with Disabilities Act (“ADA”); and (4) R+L fired him
because of his age, in violation of the Age Discrimination in Employment Act (“ADEA”).
R+L moved for summary judgment on all claims. Magistrate Judge Karen L. Litkovitz
issued a Report and Recommendation (“R&R”) that was adopted in whole over R+L’s objections.
Shrack filed no objections to the R&R, and in fact, filed a response to R+L’s objections in which
he urged the district court to adopt the R&R. The district court found that no genuine issue of
material fact existed with regard to Schrack’s claims for age discrimination or interference with his
FMLA rights. Specifically, the court found that R+L had demonstrated that it conducted a
legitimate reduction in force (“RIF”); that Schrack was terminated as part of the RIF and not
because of his age; and that because Schrack was given the full amount of leave available under
the FMLA, R+L could not, as a matter of law, have interfered with his FMLA rights.
The court found that genuine factual issues did exist with regard to Schrack’s claims of
retaliatory firing and discriminatory discharge on account of his disability. In both cases, the
court found that although there appeared to be a legitimate RIF, the lack of an objective plan for
such, coupled with the circumstantial evidence of discrimination Schrack presented, was enough
to create a genuine issue for trial: namely, whether the alleged RIF was a pretext for Schrack’s
illegal discharge.
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At trial, attempting to demonstrate the “discriminatory atmosphere” that existed at R+L,
Schrack proffered the testimony of Eugene Rhodes, the Senior Director of Human Resources at the
time Schrack was discharged. Rhodes=s proffered testimony concerned a litany of alleged
violations of federal labor laws including: R+L’s desire to lower the average age of its workforce
to 32; requesting birth dates on applications; refusing to reinstate employees after they used up
FMLA leave; terminating employees who had used up their FMLA leave; ignoring sexual
harassment; and ignoring gender discrimination. R+L allegedly engaged in these behaviors
because, according to Rhodes’s second-hand account, they had “never written a check large
enough” to encourage compliance with the law. The district judge determined that this testimony
was not relevant and that its prejudicial effect outweighed any probative value it might have. Mr.
Rhodes was allowed to testify about his limited knowledge of Schrack’s discharge and his
involvement with the RIF.
II.
A. FMLA Interference
To establish a claim for interference under the FMLA, a plaintiff must show: (1) the
plaintiff is an eligible employee under the act; (2) the defendant is an employer under the act; (3)
the plaintiff is entitled to leave; (4) the plaintiff gave notice of his or her intent to take leave; and
(5) the defendant employer denied an FMLA benefit. Donald v. Sybra, Inc., 667 F.3d 757, 761
(6th Cir. 2012); 29 U.S.C. ' 2615(a)(1). A Magistrate Judge issued a Report and
Recommendation concluding that Schrack was not denied an FMLA benefit because he received
the full 12 weeks of leave to which he was entitled. Schrack did not object, and the district court
adopted the R&R as its opinion.
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On appeal, Schrack contends that the district court erred in concluding he had not been
denied an FMLA benefit and entering summary judgment against him. R+L argues that under
United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1983), Schrack has waived his right to object
to the court’s reasoning on his interference claim. Schrack argues that he raised the issue when he
moved for a directed verdict at trial, and again on appeal. Schrack contends that he could not
appeal this decision of the district court until judgment became final. When questioned at oral
argument for authority on his position that this issue was preserved, Schrack’s counsel was unable
to provide any.
While it is true that Schrack could not appeal the entry of partial summary judgment to this
Court before judgment became final, he was obligated to present any objections he had to the R&R
before summary judgment was entered in the first place. Because Schrack failed to do this, this
issue is not properly before us.
B. Witness Rhodes’s testimony
The district court excluded Eugene Rhodes’s proffered testimony on the basis that it was
not relevant and that its probative value was outweighed by the danger of unfair prejudice. We
review a challenge to an evidentiary ruling for abuse of discretion. Brumley v. Albert E. Brumley
& Sons, Inc., 727 F.3d 574, 577 (6th Cir. 2013). We reverse when the district court “applies the
incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous
findings of fact.” Id. (quoting United States v. Martinez, 430 F.3d 317, 326 (6th Cir. 2005)). As
noted above, the district judge stated from the bench that Rhodes’s proffered testimony was more
prejudicial than probative. Looking to the relevant legal standards, we agree.
Schrack asserts that the excluded testimony was relevant to his case because it was
evidence of a discriminatory environment, which would aid in proving his claim that the RIF was a
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pretext for his illegal discharge. Schrack contends that allowing the jury to hear Rhodes’s
testimony would enable it to conclude that he was fired in retaliation for using FMLA leave, or in
the alternative that he was fired because he is disabled (i.e., narcoleptic) within the meaning of the
ADA.
Schrack cites several cases in support of his contention. See, e.g., Risch v. Royal Oak
Police Dept., 581 F.3d 383, 393 (6th Cir. 2009) (evidence that supervising officers were generally
hostile to promoting women relevant to establish discriminatory environment); Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 354-55 (6th Cir. 1998) (discriminatory remark of
non-supervisor who nonetheless “may have influenced” employment decisions relevant in age
discrimination case); Robinson v. Runyon, 149 F.3d 507, 513 (6th Cir. 1998) (evidence of a fake
employment application containing demeaning racial stereotypes was admissible to demonstrate
racially hostile atmosphere); Polanco v. City of Austin, Tex., 78 F3d 968, 980 (5th Cir. 1996)
(circumstantial evidence can show discriminatory motive); Estes v. Dick Smith Ford, Inc.,
856 F.2d 1097, 1103 (8th Cir. 1988) (“Circumstantial proof of discrimination typically includes
unflattering testimony about the employer’s history and work practicesCevidence which in other
kinds of cases may well unfairly prejudice the jury against the defendant. In discrimination cases,
however, such background evidence may be critical for the jury=s assessment of whether a given
employer was more likely than not to have acted from an unlawful motive.@); Conway v. Electro
Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987) (“[E]vidence of a corporate state-of-mind or a
discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with the
particular actors or timeframe involved in the specific events that generated a claim of
discriminatory treatment.”).
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R+L counters that any evidence of other “bad acts” is inadmissible as character evidence
used to prove conduct in conformity with the character. See Fed. R. Evid. 404. It cites several
cases in support of this proposition, the most relevant of which is Schrand v. Federal Pacific Elec.
Co., 851 F.2d 152 (6th Cir. 1988). In Schrand, the plaintiff alleged he had been wrongfully
discharged because of his age. Id. at 154. At trial, the district judge admitted testimonyCover
defense counsel’s objectionCof two former employees of defendant, who testified they were told
they had been discharged in part due to their advanced ages. Id. at 155. This Court reversed.
Id. We held that the testimony was not relevant partly because different supervisors allegedly
told the witnesses they were too old and not the supervisor who discharged the plaintiff. Id. at
156. We also held that introducing evidence of discriminatory behavior directed toward others
was too abstract and could serve to confuse the jury. Id.
Further guidance comes from Griffin v. Finkbeiner, 689 F.3d 584 (6th Cir. 2012). In
Griffin, we noted that Schrand, while still the law of the circuit, had been distinguished within the
circuit, as its applicability is limited to cases where the discriminatory conduct occurs in closer
proximity to the plaintiff. Id. at 598 n.9. In Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S.
379 (2008), the Supreme Court made it clear that the evaluation of “other acts” testimony in
employment discrimination cases must be done on a case-by-case basis, and that no per se rule of
admissibility or inadmissibility applies. We have explained that a number of factors are relevant
to this determination: (1) whether the evidence is logically or reasonably tied to the decision made
with respect to the plaintiff; (2) whether the same Abad actors@ were involved in the “other”
conduct and in the challenged conduct; (3) whether the other acts and the challenged conduct were
in close temporal and geographic proximity; (4) whether decision makers within the organization
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knew of the decisions of others; (5) whether the other affected employees and the plaintiff were
similarly situated; and (6) the nature of the employees= allegations. Griffin, 689 F.3d at 599.
In the present case, Schrack’s surviving claims at trial were for retaliatory discharge in
violation of the FMLA and discriminatory discharge in violation of the ADA. The jury found in
R+L=s favor on both claims.
At the outset, we note that under any admissibility test, Rhodes’s testimony regarding
alleged age and gender discrimination is irrelevant because those issues do not relate to Schrack’s
surviving claims. Rhodes’s testimony regarding R+L’s alleged history of FMLA violations
presents a closer question.
Rhodes testified he was instructed by Jeff Copsey, his supervisor in the Human Resources
department, not to report his own health issues because “the owners” did not want sick people on
the payroll. Rhodes also testified that Copsey told him that he had been instructed by “the
owners” to fire anyone who exhausted his or her FMLA benefits. Rhodes further testified that
“staff” routinely complained to him that Copsey would deny or delay their return to work after
being cleared for work after an FMLA leave of absence.
At trial, Dale Ellenbarger, the head of Schrack’s department, testified that while Schrack
was on leave, he was instructed to eliminate one member of his staff as part of the RIF.
Ellenbarger chose Schrack for discharge because he was the least senior member of the team.
However, because Schrack was on leave at the time, he convinced management not to move
forward with the discharge. Only after Scott Armour approved Schrack to return to work did
Ellenbarger terminate him.
Application of the factors identified in Griffin favors excluding Rhodes’s proffered
testimony. Rhodes’s proffered testimony is so vague as to make any logical connection between
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his allegations and Schrack’s firing very attenuated. The only bad actors identified by Rhodes are
Jeff Copsey and “the owners,” while the only people Schrack has identified as taking adverse
action against him were Scott Armour and Dale Ellenbarger. Schrack has in no way connected the
actions of Copsey and “the owners” to Armour or Ellenbarger. Schrack has pointed to no evidence
that Armour or Ellenbarger knew of or were involved in the relevant alleged bad acts. Schrack
has pointed to Rhodes’s own fear of losing his position because of his health conditions and
complaints of “staff” that Copsey kept them from returning to work after using leave. Rhodes is
not similarly situated to Schrack, and the allegation that “staff” complained of being unable to
return to work is too vague for this Court to make a determination as to whether such “staff” were
similarly situated to Schrack. Overall, Rhodes’s allegations are too vague and conclusory to
determine if the nature of the claims is similar. The only factor favoring inclusion is the fact that
the alleged bad acts occurred at the same time and place as Schrack’s discharge.
Because the district judge did not rely on a clearly erroneous finding of fact, improperly
apply the law, or use an erroneous legal standard, we cannot conclude a mistake has been made.
The district court, therefore, did not abuse its discretion in excluding Rhodes’s testimony.
III.
Appellant waived his challenge to the R&R’s conclusion that summary judgment should
be granted on Appellant’s FMLA interference claim. The R&R concluded that Appellant “has
not shown that defendant interfered with his rights under the FMLA” because a necessary element
of his claimBthat R+L denied Appellant FMLABleave benefits to which he was entitledBhad not
been shown. Appellant then requested that the district court adopt the R&R. The district court
did adopt the R&R. Appellant cannot now shift the basis of his FMLA interference claim by
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arguing not that he was denied a benefit, but that R+L was required to return him to work. We
therefore AFFIRM the judgment of the district court.
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