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

1 All dates are in 2004 unless otherwise specified.

his employer under Illinois law, alleging that the discharge was in retaliation for filing a workers’ compensation 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 retaliation. 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’ compensation 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
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 terminated at the expiration of that period, regardless of

the reason for the inability to work.

In both policy and practice, BRP terminated any employee 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

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 evidence that BRP terminated him because he attempted to

return on light duty status, and we will therefore not address this issue further.

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 workrelated injury.2

 Second, he complained that BRP wrongfully 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 district 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-
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 excessive 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 Dotson’s arguments are premised on misconceptions about

workers’ compensation, the FMLA, and retaliatory discharge.

Although some of Dotson’s arguments allude to violations 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 demonstrate (1) that the employee has been discharged; (2) that

the discharge was in retaliation for the employee’s activities; 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

3 As of January 1, 1980, the WCA was retitled to use the genderneutral term “workers” in place of “workmen.”

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’ compensation 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 employment 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 employee to demonstrate that the termination was motivated 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
No. 07-1375 7

obliged to reassign the employee to another position rather

than terminate the employee. Id. Finally, and most importantly 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’ compensation 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 employee 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

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...)

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 employer may terminate an employee for excessive absenteeism 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
No. 07-1375 9

4 (...continued)

sede any provision of any State or local law that provides

greater family or medical leave rights than the rights established 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.

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
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 regulations 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’ compensation 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 employee 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 subsequently 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’ compensation benefits. BRP was entitled to run FMLA leave concurrently 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 termination 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 twelveweek 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 employer’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 employer’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 company. 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 uninformed 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