IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11174

LONNY ACKER, 

 Plaintiff - Appellant 

v. 

GENERAL MOTORS, L.L.C., 

 Defendant - Appellee 

Appeal from the United States District Court

for the Northern District of Texas 

Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges. 

EDITH H. JONES, Circuit Judge:

Appellant Lonny Acker is a General Motors, L.L.C. (“GM”) employee who 

was approved for intermittent Family and Medical Leave Act (“FMLA”) leave 

but on several occasions was absent from work and did not follow company 

protocol for requesting FMLA leave. He suffered several weeks of disciplinary 

unpaid layoff. He sued GM for FMLA interference and retaliation and for 

disability discrimination under the Americans with Disabilities Act (“ADA”) 

and the Texas Commission on Human Rights Act (“TCHRA”). The district 

court entered summary judgment for GM. We AFFIRM, principally because 

the FMLA and accompanying regulations require employees to follow their 

United States Court of Appeals

Fif h Circuit

FILED

April 10, 2017

Lyle W. Cayce

Clerk

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employer’s “usual and customary” procedures for requesting FMLA leave 

absent “unusual circumstances,” 29 C.F.R. § 825.303(c). 

BACKGROUND 

Acker began working for GM in the fall of 2000 at its automobile plant 

in Kokomo, Indiana. In summer 2014, he voluntarily transferred to the GM 

assembly plant in Arlington, Texas. He is an electrician who typically works 

third shift. Acker suffers from acute iron-deficiency anemia that sometimes

causes him to experience blackouts, grayouts, heart palpitations, and fatigue. 

As a consequence, Acker was certified for intermittent medical leave under the 

FMLA by his physician. 

GM has a detailed attendance policy. The product of collective 

bargaining between GM and the International Union, United Automobile, 

Aerospace and Agricultural Implement Workers of America, this attendance 

policy is codified in what is known as “Document No. 8—Memorandum of 

Understanding—Special Procedure for Attendance” (“Doc. 8”). As a current 

electrician covered by the collective bargaining agreement, Acker is subject to 

Doc. 8. 

For an unplanned absence, the collective bargaining agreement simply 

requires employees to notify GM at least thirty minutes before the shift starts. 

Failure to call by the deadline is considered an “instance” under Doc. 8, unless 

the employee can explain the untimeliness satisfactorily to management. 

When absences are unexcused, GM allocates up to eight hours per instance of 

that employee’s “Vacation Restricted” hours to each hour that the employee 

was absent. Under this arrangement, employees are permitted up to five 

“instances” of unexcused absence before they become subject to discipline 

under the policy. Acker testified that he understood this use of “Vacation 

Restricted” time as a “free pass.” After the “free” absences are used up, Doc. 8 

imposes “Attendance Improvement Steps” for additional unexcused absences 

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through a six-step program that moves from two written warnings to unpaid 

disciplinary layoff to termination. 

GM also has a policy for requesting FMLA leave. Union benefit 

representatives at each GM facility assist employees with FMLA leave 

requests. Employees must make an initial request for FMLA leave with GM’s 

Benefits & Services center, administered by third-party vendor Sedgwick

Claims Management Services, Inc. (“Sedgwick”). Once an employee has 

requested intermittent FMLA leave, Sedgwick sends the employee a letter 

reiterating GM’s policies for requesting and taking leave. This policy is 

described in an employee letter as follows: 

If you have requested intermittent leave, you are required to report any 

time taken under the Family and Medical Leave Act (FMLA), at least 30 

minutes PRIOR to the start of your normal scheduled work shift, by 

calling the GM Absence Call In Line [redacted] and selecting the “FMLA” 

option when prompted (option #8). You are also required to call the GM 

Benefits & Services Center at [redacted] by the end of your normally 

scheduled work shift to report your FMLA absence. When calling, select 

the prompt for “FMLA”. 

Acker testified that he was familiar with this procedure and received a packet 

including this letter. 

 By September 2014, Acker testified, he had used all of his “free pass” 

days. In mid-November 2014, Acker contacted Sedgwick to request FMLA 

leave. Acker received instruction from Sedgwick to obtain a medical 

certification by November 28, and he complied. On December 9, Sedgwick 

notified him that he was approved for intermittent FMLA leave from 

November 11, 2014 to May 11, 2015. Nevertheless, he began receiving

discipline for several unapproved absences according to GM’s procedures. 

The record is undisputed concerning the disciplinary procedure GM

followed and the facts underlying the discipline. Acker was absent from work 

on September 29 and received his first written disciplinary warning under Doc. 

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8 on October 7. Acker testified that he did not request FMLA leave for the 

September 29 absence. Acker was absent a month later, on October 30, and 

was disciplined with a second written warning a day later. Acker testified that 

he did not request FMLA leave for this absence, either. 

Acker was absent again November 12, 13, and 14, which were counted 

as two “instances” of unexcused absence under GM’s policy. Combined with 

the first two unexcused absences, Acker became subject to two weeks’ unpaid 

suspension as a disciplinary layoff. Acker contacted Sedgwick to request 

FMLA leave for the November 12 and 13 absences, and his request was 

approved by Sedgwick. When GM was made aware of this approval, GM 

rescinded its disciplinary action for November 12 and 13. However, Acker 

testified that, for the November 14 absence, he failed to call in 30 minutes 

before his shift began and missed the FMLA absence call-in time by over an 

hour. For this November 14 default, GM treated the first week of the earlier 

disciplinary layoff, which Acker had already undergone, as discipline pursuant 

to Doc. 8. 

Acker was also absent on November 22 and 23. Phone records produced 

by Acker confirm that none of his three calls to the GM shift absence line were 

timely. Acker was issued another disciplinary layoff with two weeks of unpaid 

suspension for these unexcused absences, in line with the Doc. 8 policy of 

progressive discipline. 

Acker was absent again on December 6, 7, and 8. His absence for 

December 7 was approved because Acker timely called both the GM absence 

line and the GM Benefits & Services line. While Acker did contact the GM 

absence line for December 6 and December 8, he failed to contact the Benefits 

& Services line in time on both occasions. Thus on January 14, 2015, Acker 

was denied FMLA coverage for both days and issued a disciplinary layoff under 

GM policy, this time a 30 day unpaid suspension. Although the Doc. 8 policy 

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required Acker’s termination for these additional unexcused absences, GM 

retained him with an opportunity to correct his attendance issues. The last 

disciplinary action GM had to take with respect to Acker’s attendance was on 

January 14.

Since February 2015, Acker testified, he has taken more than 30 days of 

intermittent FMLA leave and managed to timely call the GM Absence and 

Benefits & Services lines according to the collective bargaining agreement. 

Nevertheless, Acker filed suit against GM in September 2015 for damages 

concerning the unpaid suspensions. After discovery, GM moved for and was 

granted summary judgment by the district court. Acker timely appealed. 

STANDARD OF REVIEW

 “Summary judgment is required ‘if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.’” Lawrence v. Fed. Home Loan Mortg. Corp., 808 F.3d 670, 

673 (5th Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). Summary judgment cannot 

be defeated through “[c]onclusional allegations and denials, speculation, 

improbable inferences, unsubstantiated assertions, and legalistic 

argumentation.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002). 

DISCUSSION 

Acker raises three issues on appeal. First, regarding his FMLA 

interference claim, he contends that his calls to GM and the Benefits & 

Services lines were sufficient to raise a genuine issue of material fact as to 

whether he provided reasonable notice of his need for unplanned FMLA leave. 

Second, he claims that the disciplinary layoffs were in retaliation for exercising 

his FMLA rights. Third, he argues that his request for FMLA leave was also 

a request for a reasonable accommodation for a disability under the ADA and 

TCHRA, and that the disciplinary layoffs thus also constituted disability 

discrimination. 

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A. FMLA Interference 

To prove an interference claim, a plaintiff “must at least show that [the 

defendant] interfered with, restrained, or denied [his] exercise or attempt to 

exercise FMLA rights, and that the violation prejudiced [him].” Bryant v. Tex. 

Dep’t of Aging & Disability Servs., 781 F.3d 764, 770 (5th Cir. 2015) (quoting 

Cuellar v. Keppel Amfels, L.L.C., 731 F.3d 342, 347 (5th Cir. 2013)). An 

“interference claim merely requires proof that the employer denied the 

employee his entitlements under the FMLA.” Stallings v. Hussmann Corp., 

447 F.3d 1041, 1051 (8th Cir. 2006). 

While the employee has a right to take leave under the FMLA, the 

employee must give his employer notice of his intention to take leave in order 

to be entitled to it. See 29 U.S.C. § 2612(e)(1) (“Requirement of notice”); (2) 

(“Duties of employee”). See also 29 C.F.R. § 825.303. When the need for leave 

is foreseeable, the employee generally “must provide the employer at least 30 

days advance notice before FMLA leave is to begin.” 29 C.F.R. § 825.302(a). If 

30 days’ notice is not practicable, “notice must be given as soon as practicable.” 

Id. In all instances, “an employee must comply with the employer’s usual and 

customary notice and procedural requirements for requesting leave, absent 

unusual circumstances.” Id. § 825.302(d). “Where an employee does not 

comply with the employer’s usual notice and procedural requirements, and no 

unusual circumstances justify the failure to comply, FMLA–protected leave 

may be delayed or denied.” Id. This regulation “explicitly permits employers 

to condition FMLA-protected leave upon an employee’s compliance with the 

employer’s usual notice and procedural requirements, absent unusual 

circumstances.” Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 614 (6th 

Cir. 2013). 

Even when an employee’s need for leave is unforeseeable, the regulations 

make clear the employee’s duty to comply with the employer’s policy. “When 

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the need for leave is not foreseeable, an employee must comply with the 

employer’s usual and customary notice and procedural requirements for 

requesting leave, absent unusual circumstances.” 29 C.F.R. § 825.303(c). 

“[A]n employer generally does not violate the FMLA if it terminates an 

employee for failing to comply with a policy requiring notice of absences, even 

if the absences that the employee failed to report were protected by the FMLA.” 

Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1008–09 (10th Cir. 2011). See 

also Bacon v. Hennepin Cty. Med. Ctr., 550 F.3d 711, 715 (8th Cir. 2008) 

(“Employers who enforce [call-in] policies by firing employees on FMLA leave 

for noncompliance do not violate the FMLA.”). 

An employer may thus require that an employee hew to the employer’s 

usual and customary procedures for requesting FMLA leave. Discipline 

resulting from the employee’s failure to do so does not constitute interference 

with the exercise of FMLA rights unless the employee can show unusual 

circumstances. “Formal notice-of-absence policies serve an employer’s 

legitimate business interests in keeping apprised of the status of its employees 

and ensuring that it has an adequate workforce to carry out its normal 

operations.” Twigg, 659 F.3d at 1009; Goff v. Singing River Health Sys., 

6 F. Supp. 3d 704, 711 (S.D. Miss. 2014) (summary judgment is appropriate in 

FMLA case without evidence of unusual circumstances excusing employee’s 

failure to call employer timely). 

It is undisputed that Acker’s phone records show he failed to call in 

timely under GM’s procedure on the dates for which he received disciplinary 

layoff: November 14, 22, 23, and December 6 and 8. Acker cannot rely on his 

deposition testimony, inconsistent with phone records that he described as the 

“universe” of his calls during the relevant period, to create a fact issue on 

timeliness. Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir. 2004) (“vague, 

self-serving statements” are “not sufficient to raise a genuine issue of material 

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fact”); see also Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379 (5th Cir. 

2010). Thus, in order to establish FMLA interference, Acker has to show that 

for each of these non-FMLA-approved absences, unusual circumstances 

prevented him from following the union-negotiated procedures. This he has 

not done. 

Acker testified that his disability causes him to experience severe 

disorientation, blackouts, grayouts, heart palpitations, and extreme fatigue 

when in the acute phase, and that his disability can reach the acute phase

suddenly and could constitute a sudden medical issue or emergency. He 

offered no factual support, however, that he reached the acute stage or

experienced a medical emergency on the days in question. Indeed, he testified

that he was too “dizzy” to follow GM’s call-in procedure only on November 14, 

but he was given FMLA leave and was not disciplined under Doc. 8 for that 

absence. He did not explain why “unusual circumstances” left him capable of 

calling one line, but not the other: on November 22, December 6, and December 

8, Acker timely called the GM absence line, but failed to call the GM Benefits 

& Services line. There is no proof that unusual circumstances arising from his 

condition prevented him from complying with GM’s call-in policy with respect

to one line but not the other. 

Relying on Saenz v. Harlingen Med. Ctr., L.P., 613 F.3d 576 (5th Cir. 

2010) as well as Millea v. Metro-North R.R. Co., 658 F.3d 154 (2d Cir. 2011), 

Acker argues that failure to comply with an employer’s usual and customary 

procedures cannot be grounds for discipline when the employee provides 

“reasonable” notice of an unforeseen absence. He thus argues that there is a 

fact issue whether his (untimely) phone calls provided reasonable notice to GM

irrespective of company policies. 

Acker’s reliance on these cases is misplaced. First, the holdings in each 

of those cases are predicated on outdated, materially different regulations. The 

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Sixth Circuit noted the material changes to the FMLA regulations that went 

into effect on January 16, 2009. See Srouder, 725 F.3d 608. Based on the 

previous regulations, the Sixth Circuit had held that the “FMLA does not 

permit an employer to limit his employee’s FMLA rights by denying them 

whenever an employee fails to comply with internal procedural requirements 

that are more strict than those contemplated by the FMLA.” Id. at 613–614

(citing Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713 (6th Cir. 2003). But the 

revised regulations explicitly allow employers to condition FMLA leave on 

following the employer’s policy. Srouder, 725 F.3d at 614. Indeed, this court 

in Saenz acknowledged that the post-2009 regulations, if applicable, could have 

required summary judgment for the employer: 

the 2009 revisions to the FMLA regulations governing notice should not 

apply to the instant case . . . the most salient regulatory change—the 

revisions to 29 C.F.R. § 825.303—arguably increases the duties imposed 

upon employees seeking FMLA leave. Were we to apply the new 

regulations, [the employer] might very well be entitled to summary 

judgment . . . we decline to retroactively apply the new regulations, and 

all citations to the governing FMLA regulations refer to the pre-2009 

Code of Federal Regulations edition. 

Saenz, 613 F.3d at 582 n.9. The new regulations control the standard for this 

case, and Acker has not raised a fact issue for FMLA interference.1

B. FMLA Retaliation 

To prove FMLA retaliation, the employee must demonstrate: “1) he was 

protected under the FMLA; 2) he suffered an adverse employment action; and 

3) he was treated less favorably than an employee who had not requested leave

under the FMLA or the adverse decision was made because he sought 

 

1 Likewise Millea involved an incident in 2006, three years before the material change 

in the regulations. See 658 F.3d at 159–60 (describing the relevant incident in 2006). In 

addition, that case is factually distinct because unlike here, where Acker did not follow the 

timing requirements of his employer’s FMLA request policy, the employer in Millea “received 

timely, although indirect, notice of Millea’s use of FMLA leave.” Id. 

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protection under the FMLA.” Mauder v. Metro. Transit Auth. of Harris Cty., 

Tex., 446 F.3d 574, 583 (5th Cir. 2006). The third element requires the 

employee to show “there is a causal link” between the FMLA-protected activity 

and the adverse action. Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 

332 (5th Cir. 2005). 

Acker cannot make a prima facie case. He has not shown how his 

disciplinary leave was caused by his attempts to seek protection under the 

FMLA instead of his failure to follow GM’s attendance and absence approval 

process. Acker is still employed by GM. He has taken more than 30 days of 

intermittent FMLA leave since his last disciplinary layoff by following GM’s 

call-in procedure. It is undisputed that GM’s policy should have resulted in 

Acker’s termination for his absence on December 6, but GM offered Acker the 

opportunity to correct his attendance problems. These undisputed facts belie 

any casual connection between his claimed adverse action and his attempt to 

seek FMLA leave. 

C. ADA/TCHRA 

 Acker also argues that in disciplining him for violation of the Doc. 8 

procedures, GM failed to accommodate his disability by means of FMLA leave. 

He contends that his requests for FMLA leave, although made outside of the 

process GM provided, were simultaneously requests for a reasonable 

accommodation under the ADA, and concomitantly, the TCHRA.2 Acker 

argues that because a request for medical leave generally is a request for an 

accommodation in some instances, a request for FMLA leave is also a request 

 

2 The Texas Supreme Court has held that the TCHRA can be interpreted in lockstep 

with the federal ADA. By adopting the TCHR, “the Legislature intended to correlate state 

law with federal law in employment discrimination cases . . . Therefore, we look to federal 

law to interpret the Act’s provisions.” AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) 

(quotations and citations omitted). 

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under the ADA. The district court disagreed and held that Acker did not make 

a request for a reasonable accommodation. 

Employees who require accommodation due to a disability are 

responsible for requesting a reasonable accommodation. See Griffin v. United 

Parcel Serv., Inc., 661 F.3d 216 (5th Cir. 2011) (quoting E.E.O.C. v. Chevron 

Phillips Chem. Co., L.P., 570 F.3d 606, 621 (5th Cir. 2009)). However, a request 

for FMLA leave is not a request for a reasonable accommodation under the 

ADA. “The ADA and the FMLA have divergent aims, operate in different ways, 

and offer disparate relief.” Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 

2001). “FMLA leave is not a reasonable accommodation under the ADA; rather 

it is a right enforceable under a separate statutory provision.” Harville v. Tex. 

A&M Univ., 833 F. Supp. 2d 645, 661 (S.D. Tex. 2011) (citing Trevino v. United 

Parcel Serv., No. 3:08–CV–889–B, 2009 WL 3423039, *12 (N.D.Tex. Oct. 23, 

2009)). 

 Textual comparison of the FMLA with the ADA demonstrates why 

requesting FMLA leave alone is not a request for an ADA reasonable 

accommodation. An employee who requests FMLA leave asserts he has a 

“serious health condition that makes the employee unable to perform the

functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D) 

(“Entitlement to leave”). A request for a reasonable accommodation under the

ADA is a claim that the employee “with or without reasonable accommodation, 

can perform the essential functions of the employment position that such 

individual holds or desires.” 42 U.S.C. § 12111(8) (“Definitions: Qualified 

Individual”). See Capps v. Mondelēz Global LLC, 147 F. Supp. 3d 327, 340–41

(E.D. Penn. 2015) (“an employee who requests leave does not clearly 

communicate to her employer that she is disabled and desires an 

accommodation.”) (quoting Rutt v. City of Reading, Pa., No. CIV.A. 13–4559, 

2014 WL 5390428, *4 (E.D. Pa. Oct. 22, 2014). Thus, an employee seeking 

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FMLA leave is by nature arguing that he cannot perform the functions of the 

job, while an employee requesting a reasonable accommodation communicates 

that he can perform the essential functions of the job. 

Acker has not demonstrated any dispute of material fact that his 

untimely phone calls could have sought a reasonable accommodation under the 

ADA. He failed to follow GM’s absence procedure, was disciplined, and has 

successfully followed GM’s absence procedure since. As a consequence, Acker 

has not proved how GM denied him any accommodation. 

CONCLUSION 

For the foregoing reasons, the judgment of the district court is 

AFFIRMED. 

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