John Randall Roll v. Bowling Green Metalforming, LLC

NOT RECOMMENDED FOR PUBLICATION
File Name: 12a0051n.06
No. 10-6185
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
John Randall Roll,
Plaintiff-Appellant,
v.
Bowling Green Metalforming, LLC,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF KENTUCKY
BEFORE: Merritt and Cole, Circuit Judges; Varlan, District Judge.*
MERRITT, Circuit Judge. Plaintiff Randall Roll appeals the district court’s order granting
summary judgment to his former employer, defendant Bowling Green Metalforming, after plaintiff
filed this action against defendant under the Family Medical Leave Act, 29 U.S.C. § 2615. Plaintiff
alleges that defendant violated the Act when it terminated his employment on the day he returned
from taking leave pursuant to the Act for an injury. Defendant contends that plaintiff was terminated
as part of a large reduction in force in January 2009, precipitated by the downturn in the United
States auto industry, not because he had taken leave under the Act. We agree with the district court
that defendant is entitled to summary judgment because plaintiff has not raised a genuine issue of
The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of*
Tennessee, sitting by designation.

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material fact demonstrating that defendant’s stated reason for terminating plaintiff—a reduction in
force at the company—was pretextual.
I.
Defendant is an automotive supplier with a manufacturing plant in Bowling Green, Kentucky.
Plaintiff was hired by defendant in 2004 to work as a Maintenance Technician. Plaintiff was
promoted to Maintenance team leader in 2005, where he supervised between 8 and 16 Maintenance
Technicians. In 2007, plaintiff received written counseling on two separate occasions for attendance
issues. On July 23, 2007, plaintiff received a written performance review that rated him in 10
categories. The rating scale was 1-5, with “1" being the worst and “5" being the best. He received
six “2s” and four “3s,” and he was put on a Performance Improvement Plan with which he disagreed
and refused to sign. In November 2007, plaintiff was suspended for two days for operating a
maintenance cart in a reckless manner. After the suspension, plaintiff voluntarily moved back to the
Maintenance Technician position.
Plaintiff severely injured his hand in an accident at home in early September 2008, and took
leave under the Act. Plaintiff’s doctor stated that the necessary leave time was undetermined, but
plaintiff hoped at that time to only miss one week of work. Complications arose from the injury and
plaintiff was unable to return to work until February 2, 2009. Plaintiff took the 12 weeks of annual
leave allowed by the Act in 2008 and was allowed by defendant to take another five weeks of leave
in 2008. Plaintiff accrued 12 more weeks of annual leave under the Act on January 1, 2009, and he
took another four or five weeks in early 2009.
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While plaintiff was on leave, defendant started to suffer the effects of the financial crisis.
On November 28, 2008, defendant’s parent corporation announced layoffs in the United States and
Canada. Plaintiff received this information in a letter while on leave. Defendant instituted a
significant reduction in force in January 2009, laying off 400 people. Plaintiff’s department laid off
72 of 132 employees, about 60% of the department work force. Of the 65 people who remained
employed in plaintiff’s department, 20 had previously taken leave under the Act. Of the 77 people
laid off, 62 had never taken leave under the Act.
Defendant allowed plaintiff to remain on leave rather than terminating him when the rest of
the employees were let go in January so that plaintiff could get the full benefit of his leave. While
on leave plaintiff was receiving 60% of his salary and health benefits. Plaintiff was laid off on
February 2, 2009, the day he returned from leave. He filed this action in state court and it was
removed to federal court. In his complaint, plaintiff alleges that defendant violated the Act by
terminating him in retaliation for taking leave under the Act and by failing to reinstate him to the
same or a similar job upon his return from leave. Defendant moved for summary judgment and the
district court granted its motion. Plaintiff then moved to set aside, vacate, alter or amend the
summary judgment order pursuant to Federal Rule of Civil Procedure 59(e), which motion was
denied. Plaintiff timely appeals.
II.
The Family Medical Leave Act provides two types of claims or theories of liability: (1) the
“interference” theory, which provides for liability if an employer interferes with a right to medical
leave or reinstatement created by the Act, 29 U.S.C. § 2615(a)(1), or (2) a “discrimination” or
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“retaliation” theory, which prohibits an employer from discriminating or retaliating against an
employee for taking leave under the Act, 29 U.S.C. § 2615(a)(2). Plaintiff brought his claim under1
the “retaliation” theory, arguing that he was retaliated against when he was terminated on his first
day back to work after taking leave under the Act.
To establish a prima facie case of retaliation in the absence of direct evidence, we look to the
burden-shifting analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06 (1973).
Plaintiff must first demonstrate that: (1) he was engaged in an activity protected by the Act; (2) he
suffered an adverse employment action; and (3) there was a causal connection between his protected
activity and the adverse employment action. If plaintiff makes a prima facie showing, the burden
shifts to defendant to demonstrate evidence of a legitimate, nondiscriminatory reason for the adverse
29 U.S.C. § 2615 of the Act provides, in relevant part:1
(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 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.
. . . .
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employment action. See Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007). If defendant
satisfies this burden of production, the burden shifts back to plaintiff to show defendant’s proffered
reason is pretext for unlawful discrimination. See id.
We agree with the district court that plaintiff has made out a prima facie case: he was
engaged in a protected activity; he was engaged in a protected activity, his termination was an
adverse employment action and the close temporal proximity between his leave and termination
provides the necessary causal connection at this early stage of the analysis where the burden of proof
is minimal. Because plaintiff has established a prima facie case, the burden shifts to defendant to
provide a nondiscriminatory reason for plaintiff’s termination. Defendant did so by providing
substantial documentary and testimonial evidence in the record below that plaintiff was terminated
due to a reduction in force at the company. Included in the evidence is a letter from the Chairman
of the Board of defendant’s parent company announcing layoffs due to the financial difficulties the
company was facing due to the economic downturn, which affected the automotive industry
particularly hard. A declaration from the Human Resources department manager at the company
testified that a reduction in force took place in January 2009, and that plaintiff was selected for the
reduction based on objective criteria such as skills, performance, work history and overall ability.
Plaintiff does not dispute any of the evidence showing that objective criteria were used to determine
who would be laid off, nor does plaintiff challenge the statistics submitted by defendant that show
that 60% of his department was laid off. The declaration stated that the layoffs took place while
plaintiff was on leave, but that the company decided to permit plaintiff to remain on leave as long
as needed instead of terminating him during his leave, thereby allowing him to continue to collect
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60% of his salary and maintain his health benefits for a few more weeks. These are adequate reasons
for the reduction in force and plaintiff’s inclusion in it, including the reason for his later termination
date.
Plaintiff must produce evidence to allow a reasonable jury to conclude that defendant’s
proferred reason—that plaintiff was legitimately included in a reduction in force, albeit at a later date
than other employees—was pretextual and that the real reason he was terminated was at least partly
motivated by his taking of leave under the Act. The only evidence of pretext offered by plaintiff is
the timing of his termination, which occurred on the day he returned from leave. The company has
adequately explained that plaintiff was not terminated while on leave so that he could continue
receiving benefits. Moreover, temporal proximity between taking leave and an adverse employment
action is insufficient, standing alone, to demonstrate pretext. Skrjanc v. Great Lakes Power Serv.
Co., 272 F.3d 309, 317 (6th Cir. 2001).
In an attempt to present additional evidence that defendant’s stated reason for terminating
plaintiff was pretextual, plaintiff also argues that he was subject to discrimination by defendant when
he declined to provide information to management about his coworkers’ views during a union
organizing campaign. In 2007, plaintiff was in a supervisory position when he received several
written warnings about attendance and received a “Performance Improvement Plan” to address
deficiencies in his work. Plaintiff claims that he received the Performance Improvement Plan due
to his refusal to provide information about union organizing to management. Plaintiff never sought
redress at the time for any alleged discrimination arising from this situation and, in any event, this
evidence does not support an inference that plaintiff was terminated for taking leave under the Act
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two years later. We do not view this as evidence demonstrating a discriminatory motive on the part
of defendant that, when combined with the timing, demonstrates pretext. See DeBoer v. Musashi
Auto. Parts, Inc., 124 F. App’x 387, 393-94 (6th Cir. 2005) (“[S]uspicious timing is a strong
indicator of pretext when accompanied by some other, independent evidence.”).
We also note that it is not unlawful for an employer to terminate an employee who took leave
under the Act if the termination would have occurred regardless of the employee’s exercise of his
rights under the Act. The Department of Labor’s regulation concerning the Act states:
(a) An employee has no greater right to reinstatement or to other benefits and
conditions of employment than if the employee had been continuously employed
during the FMLA leave period. An employer must be able to show that an employee
would not otherwise have been employed at the time reinstatement is requested in
order to deny restoration to employment. For example:
(1) If an employee is laid off during the course of taking FMLA leave and
employment is terminated, the employer's responsibility to continue FMLA leave,
maintain group health plan benefits and restore the employee cease at the time the
employee is laid off, provided the employer has no continuing obligations under a
collective bargaining agreement or otherwise. An employer would have the burden
of proving that an employee would have been laid off during the FMLA leave period
and, therefore, would not be entitled to restoration.
29 C.F.R. § 825.216(a)(1). Under this regulation, defendant could have terminated plaintiff along
with the other employees in January 2009, but instead allowed him to continue on leave with benefits
until February 2, 2009. As explained above, defendant has met its burden of showing that plaintiff
would have been terminated under the reduction in force without regard to his taking of leave under
the Act and no genuine issue of material fact remains to warrant a trial.
For the foregoing reasons, we affirm the judgment of the district court.
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