In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1375
BRIAN K. DOTSON,
Plaintiff-Appellant,
v.
BRP US INCORPORATED, A Delaware
Corporation, formerly known as
BOMBARDIER MOTOR CORPORATION
OF AMERICA,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 06 C 4004—J. Phil Gilbert, Judge.
____________
ARGUED NOVEMBER 26, 2007—DECIDED MARCH 21, 2008
____________
Before BAUER, ROVNER and WOOD, Circuit Judges.
ROVNER, Circuit Judge. Brian K. Dotson was terminated
from his employment with BRP US Inc. (“BRP”) after
filing a claim for compensation under the Illinois
Workers’ Compensation Act (“WCA”). See 820 ILCS 305/1
et seq. Dotson’s absence from work exceeded the amount
of time allowed by the company’s absenteeism policy,
which tracks the time allotted by the Family and Medical
Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”). Dotson sued
2 No. 07-1375
his employer under Illinois law, alleging that the dis-
charge was in retaliation for filing a workers’ compensa-
tion claim. The district court granted summary judgment
in favor of BRP after concluding that no reasonable jury
could conclude that Dotson’s discharge was due to re-
taliation. We affirm.
I.
BRP manufactures recreational products, including
personal watercraft. Dotson began working for BRP in
1999 in a job called “grind and trim.” Dotson’s duties
entailed drilling and cutting, sometimes in cramped spaces,
under boats. On January 7, 2004, Dotson injured his back
while grinding under a boat. He worked a few days on
light duty status and then, at BRP’s direction, he saw
Dr. Dallas Lipscomb on January 19, 2004.1 Dr. Lipscomb
referred Dotson to Dr. McGuire, a chiropractor, and
Dr. Kevin Rutz, an orthopedic spine specialist. Dotson
saw Dr. Rutz on February 13 for an independent medical
evaluation that had been requested by Gallgher Bassett
Services (“Gallagher”) on behalf of the workers’ compensa-
tion carrier for BRP. Dr. Rutz performed surgery on
Dotson’s lower back in March, and gave him a limited
duty work release at the end of June. Dr. Rutz released
Dotson for full duty in August. From January 19 through
the August work release, Dotson was unable to perform
the grind and trim job due to his injury.
BRP’s absenteeism policy tracked the minimum amount
of leave mandated by the FMLA. The company allowed
workers up to twelve weeks of unpaid leave in any rolling
1
All dates are in 2004 unless otherwise specified.
No. 07-1375 3
twelve-month period for qualifying absences. Translating
that into hours, BRP allowed 480 hours of absence under
the FMLA, and under its absenteeism policy. According
to BRP’s Employee Handbook,
All FMLA time runs concurrent with short term
disability and worker’s compensation or any qualifying
event. When an employee has exhausted twelve
weeks of FMLA time during a rolling calendar year,
employment with [BRP] may be terminated.
Although that passage implied that termination at the end
of twelve weeks was optional, the very next sentence
clarified the meaning:
An employee who is unable to work for more than
twelve weeks will be considered automatically termi-
nated at the expiration of that period, regardless of
the reason for the inability to work.
In both policy and practice, BRP terminated any em-
ployee who exceeded twelve weeks of FMLA leave in a
twelve month period.
Prior to injuring his back, Dotson had already used 286
hours of FMLA leave during the previous twelve months.
On January 19, BRP notified Dotson by letter that he
might be eligible for FMLA leave due to his injury, that he
had 194 hours (approximately 24 days) of FMLA leave
remaining after other uses, and that any FMLA leave
would run concurrently with workers’ compensation and
short term disability benefits. One BRP employee told
Dotson his FMLA leave would expire on February 8, but
a February 10 letter from BRP informed Dotson that his
leave would expire on February 23 by the company’s
calculations. Dotson questioned whether he needed FMLA
leave at all, believing that as long as his absence was
4 No. 07-1375
covered by workers’ compensation, the time did not
count against his FMLA total. BRP told Dotson that if he
did not apply for FMLA leave, he would be terminated
immediately, and so Dotson signed the paperwork, and
then later tried to revoke his request. Dotson collected total
temporary disability payments throughout his absence
for this injury. Of course, as we noted above, Dotson’s
doctors performed his back surgery in March, and did not
release him for full work duty until August. On February
24, BRP sent Dotson a letter purporting to terminate his
employment due to excessive absenteeism.
Dotson sued BRP under the WCA, specifying three
particular acts or omissions that harmed him. First, he
alleged that BRP terminated his employment after he
attempted to return to work with restrictions for a work-
related injury.2 Second, he complained that BRP wrong-
fully required him to utilize FMLA leave rather than
affording him temporary total disability time as authorized
by law. Finally, he asserted that BRP violated the WCA by
wrongfully terminating him for exercising his lawful
right to claim workers’ compensation benefits. The dis-
trict court granted summary judgment in favor of BRP,
finding that Dotson failed to show a causal connection
between his workers’ compensation claim and his termina-
2
The undisputed evidence shows that Dotson returned to work
on light duty status for a few days following the injury. The
light duty job involved walking at the plant. Walking hurt
Dotson’s back, and after he saw Dr. Lipscomb, Dotson stopped
working in the light duty position. He has presented no evi-
dence that BRP terminated him because he attempted to
return on light duty status, and we will therefore not ad-
dress this issue further.
No. 07-1375 5
tion. The court noted that excessive absenteeism, if not a
pretext, is a valid basis for discharging an employee,
even if the employee’s absence is due to a work-related
injury compensable under the WCA. Because Dotson
presented no evidence that BRP’s stated reason of exces-
sive absenteeism was pretextual, the court found that
Dotson could not demonstrate that the discharge was
retaliatory. Dotson appeals.
II.
On appeal, Dotson frames eight separate issues which
boil down to a few distinct theories. According to Dotson,
an employer may not lawfully “force” an employee to
take FMLA leave, may not terminate an employee who is
absent for a work-related injury, and may not count leave
covered by workers’ compensation toward the FMLA total.
Dotson sees each of these actions by BRP as evidence that
BRP discharged him in retaliation for exercising his
rights to workers’ compensation. However, all of Dot-
son’s arguments are premised on misconceptions about
workers’ compensation, the FMLA, and retaliatory dis-
charge.
Although some of Dotson’s arguments allude to vio-
lations of the FMLA, Dotson’s complaint was founded
entirely on the Illinois tort of retaliatory discharge, and
that is where we begin. To make out a claim for retaliatory
discharge under Illinois law, an employee must demon-
strate (1) that the employee has been discharged; (2) that
the discharge was in retaliation for the employee’s activi-
ties; and (3) that the discharge violates a clear mandate
of public policy. Hartlein v. Illinois Power Co., 601 N.E.2d
720, 728 (Ill. 1992). The Illinois Supreme Court determined
6 No. 07-1375
nearly thirty years ago that a discharge in retaliation for
an employee’s exercise of workers’ compensation rights
violated the public policy of the State. See Kelsay v.
Motorola, Inc., 384 N.E.2d 353 357-58 (Ill. 1978)
(“[R]etaliatory discharge is offensive to the public policy
of this State as stated in the Workmen’s Compensation
Act. This policy can only be effectively implemented and
enforced by allowing a civil remedy for damages.”).3
To make out a claim for retaliation in the workers’ com-
pensation context, Dotson must show “(1) that he was
the defendant’s employee before his injury; (2) that he
exercised a right granted by the Workers’ Compensation
Act; (3) and that he was discharged from his employ-
ment with a causal connection to his filing a workers’
compensation claim.” McCoy v. Maytag Corp., 495 F.3d
515, 521 (7th Cir. 2007). See also Carter v. Tennant Co., 383
F.3d 673, 677 (7th Cir. 2004). The only element of this
formulation that is under dispute is the causal link between
Dotson’s exercise of his right to workers’ compensation
benefits and his termination. The burden is on the em-
ployee to demonstrate that the termination was mo-
tivated by an unlawful intent to retaliate against the
employee for exercising a statutory right to workers’
compensation benefits. Feldman v. American Memorial Life
Ins. Co., 196 F.3d 783, 792 (7th Cir. 1999). “The element of
causation is not met if the employer has a valid basis,
which is not pretextual, for discharging the employee.”
Hartlein, 601 N.E.2d at 728. Thus, Illinois law does not
require an employer to retain an at-will employee who is
medically unable to perform the job. Nor is the employer
3
As of January 1, 1980, the WCA was retitled to use the gender-
neutral term “workers” in place of “workmen.”
No. 07-1375 7
obliged to reassign the employee to another position rather
than terminate the employee. Id. Finally, and most impor-
tantly in this case, “an employer may fire an employee
for excess absenteeism, even if the absenteeism is caused
by a compensable injury.” Id.
Consonant with that final point, BRP contends that it
terminated Dotson not because he sought workers’ com-
pensation benefits but rather because he exceeded his
twelve-week allotment of leave under the company’s
policy for excessive absenteeism. BRP’s policy, both in
writing and in practice, was to terminate any worker
who exceeded twelve weeks of FMLA leave. According
to BRP, Dotson exhausted his twelve weeks by the end of
February, having used more than half of the allotment
for other purposes before this injury occurred. Because
Dotson’s physician did not release him to return to
work until August, BRP argues that his discharge did not
violate the law.
Dotson argues that this stated reason is pretextual and
that he did not exhaust his FMLA leave. This argument,
though, is premised on mistaken notions about the FMLA
and the Illinois case law regarding workers’ compensation.
Dotson complains, for example, that BRP “forced” him to
use FMLA leave against his will, terminated him while
he was on leave for a work-related injury, and illegally
counted time covered by workers’ compensation as FMLA
leave. The FMLA entitles eligible employees to up to
twelve weeks of unpaid leave per year due to, among other
things, a serious health condition that renders the em-
ployee unable to perform the functions of his or her job.
Darst v. Interstate Brands Corp., 512 F.3d 903, 908 (7th Cir.
2008); 29 U.S.C. § 2612(a)(1)(D). No one disputes that
Dotson’s injury was a serious health condition. And Dotson
8 No. 07-1375
does not dispute that he was absent from work for more
than twelve weeks, unable, during that time, to perform
the functions of the grind and trim job. His first argument,
that he was forced to use FMLA leave, is particularly
unusual. If Dotson was not taking FMLA leave, then
he would have needed to provide some other reason to
excuse his absence, a reason allowed by BRP’s absenteeism
policy. Under BRP’s policy, any employee absent for
more than twelve weeks was automatically terminated.
Although BRP could have adopted a policy that was more
generous than the minimum twelve weeks required by
the FMLA, BRP was not required to do so. See 29 U.S.C.
§ 2652(a) (providing that the FMLA statute shall not be
construed to diminish the obligation of employers to
comply with any collective bargaining agreements or
employee benefit plans that provide greater family and
medical leave rights than those granted by the FMLA).
That leads to his second argument. Dotson explains he
was absent for a work-related injury, apparently believing
that an employer may not terminate an employee who is
absent for that reason. Under Hartlein, though, an em-
ployer may terminate an employee for excessive absentee-
ism even if the absence is caused by a “compensable
injury.” In other words, under Illinois law, an employee
may be terminated for excessive absenteeism even if
the absence is due to a work-related injury covered by
workers’ compensation.4 Moreover, an employer may
4
In the same way that employers may provide leave policies
more generous than the minimum required by the FMLA, so
too may states legislate more generous leave. See 29 U.S.C.
§ 2651(b) (“Nothing in this Act . . . shall be construed to super-
(continued...)
No. 07-1375 9
designate an absence as an FMLA absence, provided the
employer gives the employee appropriate notice. See
29 C.F.R. § 825.208. As we will see shortly, BRP provided
that notice.
And that brings us to Dotson’s third argument, that
BRP illegally counted the time he was off work and
collecting workers’ compensation benefits toward his
FMLA total. Dotson apparently believes that an employer
may not run FMLA leave concurrently with workers’
compensation. The FMLA regulations, however, allow
employers to do just that, provided they supply the
employee with appropriate notice. For example, the
regulation addressing the interaction between the FMLA
and federal or state anti-discrimination laws provides:
An employee may be on a workers’ compensation
absence due to an on-the-job injury or illness which
also qualifies as a serious health condition under
FMLA. The workers’ compensation absence and FMLA
leave may run concurrently (subject to proper notice
and designation by the employer).
29 C.F.R. § 825.702(d)(2). See also 29 C.F.R. § 825.207(d)(2)
(“The Act provides that a serious health condition may
result from injury to the employee ‘on or off’ the job. If
4
(...continued)
sede any provision of any State or local law that provides
greater family or medical leave rights than the rights estab-
lished under this Act”). Dotson has pointed to no provision of
Illinois law that obligates BRP to grant employees more leave
than the twelve weeks allotted by the FMLA. BRP’s choice to
cap allowed leave at the FMLA mandatory minimum was
therefore lawful.
10 No. 07-1375
the employer designates the leave as FMLA leave in
accordance with § 825.208, the employee’s FMLA 12-week
leave entitlement may run concurrently with a workers’
compensation absence when the injury is one that meets
the criteria for a serious health condition.”). FMLA regula-
tions also provide that:
If the employee has been on a workers’ compensation
absence during which FMLA leave has been taken
concurrently, and after 12 weeks of FMLA leave the
employee is unable to return to work, the employee
no longer has the protections of FMLA and must look
to the workers’ compensation statute or ADA for any
relief or protections.
29 C.F.R. § 825.216(d). A number of other regulations
address questions that arise when FMLA and workers’
compensation run concurrently, further evidencing the
lawfulness of this practice. See §§ 825.210(f), 825.220(d),
825.307(a)(1), 825.702(d)(1). All of these regulations make
clear that if the employer provides adequate notice,
FMLA may run concurrently with workers’ compensa-
tion benefits.
BRP’s notice took two forms here. First, the employee
handbook specified “All FMLA time runs concurrent
with short term disability and workers’ compensation or
any qualifying event.” Second, in its January 19 letter to
Dotson, BRP stated:
When an employee misses work due to a work related
injury, personal illness or family emergency the em-
ployee may also be eligible for FMLA Leave which
runs concurrent with Workers’ Compensation and
Short Term Disability.
No. 07-1375 11
This same letter defined the requirements for eligibility and
informed Dotson that he had already used 286 hours of
FMLA leave, and had 194 hours remaining. BRP subse-
quently sent Dotson a letter noting that his FMLA leave
for this injury began on January 13 and was expected
to end on February 23. BRP thus adequately notified
Dotson that the FMLA clock was running, and that it
was running concurrently with his workers’ compensa-
tion benefits. BRP was entitled to run FMLA leave con-
currently with workers’ compensation, could lawfully
count those days toward the FMLA total, and could
terminate an employee who exceeded the twelve-week
allotment unless the employee claimed some other kind of
absence that was excused under BRP’s policies. Dotson
has provided no alternate excuse under BRP’s absenteeism
policy.
Dotson next maintains that, under Siekierka v. United
Steel Deck, Inc., 868 N.E.2d 374 (Ill. App. 3 Dist. 2007), an
absenteeism policy may not be used to justify a termina-
tion of an injured worker if the worker has no control over
the time he is required to be absent and the employer has
some control over the length of the absence. Siekierka is
easily distinguished from Dotson’s case on a number of
issues. First, the employer in Siekierka had a markedly
different absenteeism policy. United Steel Deck allowed
twelve weeks of FMLA leave as mandated by federal law,
and then, if an employee was still unable to return to
work, the human resources manager and plant manager
decided together on a case-by-case basis whether to grant
extensions. The managers granted Siekierka an extension
of a little less than one month and then refused to extend
the leave further when Siekierka was still unable to return
to work. BRP’s policy involves no discretion; the com-
12 No. 07-1375
pany terminates all employees who exceed the twelve-
week period for any reason. Siekierka, 868 N.E.2d at 377-78.
Second, United Steel Deck, through its insurer, “set in
motion a process that made it impossible for Siekierka to
return to work within the time granted to him by United
Steel.” 868 N.E.2d at 381. In particular, Siekierka’s own
doctor recommended surgery to correct his work-related
injury. If Siekierka had received this treatment in the
time frame recommended by his personal physician, he
would have been able to return to work within the allotted
time. However, prior to allowing the surgery, the em-
ployer’s insurer insisted on a second opinion. Siekierka
was forced to wait four weeks for an appointment with
the second doctor, who then recommended that he wait
another four weeks before deciding whether surgery
was needed. The eight-week delay caused by the em-
ployer’s insurer made it impossible for Siekierka to return
to work in the time allowed by the managers. 868 N.E.2d
at 377-81. In Dotson’s case, the evidence is undisputed
that Dotson could not have returned to his grind and trim
post within the time remaining regardless of any actions
taken by BRP in delaying his treatment. In other words,
even if Dotson had been treated immediately, unlike
Siekierka, he would not have been able to return to
work within the 194 hours that remained in his allotted
time.
Third, United Steel Deck failed to give Siekierka adequate
notice about his use of FMLA time, failing to inform him
until he was three weeks into the second doctor’s “wait and
see” approach that he had already used up eleven weeks of
FMLA leave, and would be terminated if he did not return
within the slightly extended time frame set by the com-
pany. In contrast, BRP gave all of the notices required by
No. 07-1375 13
the FMLA before terminating Dotson. As the Siekierka court
commented, “United Steel’s actions served to delay
Siekierka’s surgery at the same time he was left unin-
formed that the delay had the potential to cost him his job.”
868 N.E.2d at 381. Under those circumstances, the court
found that there existed a genuine issue of material fact as
to whether there was a causal connection between
Siekierka’s exercise of workers’ compensation rights and
his discharge. Nothing about Dotson’s case calls into
question the company’s stated reason for the termination,
that Dotson exceeded the twelve-week leave period
allowed by the company’s absenteeism policy. We have
considered Dotson’s other arguments and find them
equally unavailing. Because Dotson has no evidence
linking his termination with his exercise of rights to
workers’ compensation benefits, the district court was
correct to grant summary judgment in favor of BRP.
AFFIRMED.
USCA-02-C-0072—3-21-08