NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0118n.06
No. 16-1782 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOHN LEVAINE, Plaintiff-Appellant,

v. TOWER AUTOMOTIVE OPERATIONS USA I, LLC, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: GIBBONS, COOK, and KETHLEDGE, Circuit Judges. KETHLEDGE, Circuit Judge. John Leva ine sued his former employer, Tower Automotive, alleging that Tower violated hi s rights under the Family Medical Leave Act (FMLA). The district court granted Tower’s motion for summary judgment. We affirm.
I. Levaine started working for Active Tool and Manufacturing (a producer of car parts) in 1997 and joined the United Steelworkers of Am erica Local 2-628. Two years later, Tower bought Active Tool, employed its workers (inc luding Levaine), and entered into a labor agreement with the Union. The agreement set forth Tower’s policies against harassment and improper conduct, which themselves prohibited “conduct of any type” that was “contrary to [Tower’s] value of treating everyone with dignity and respect.” Whether an employee’s conduct violated these policies was for Tower to determin e “in its sole discretion.” Any breach of theseNo. 16-1782, Levaine v. Tower Automotive Operations

-2- policies could result in immediate termination, a nd indeed Levaine himself testified that Tower had fired employees for threatening supervisors in violation of the anti-harassment policy. Under the Family Medical Leave Act, employ ees can take up to 12 weeks of unpaid leave under certain circumstances. See 29 U.S.C. § 2612. Over the years, Levaine requested and Tower granted him FMLA leave on two grounds: to care for his wife’s serious medical condition, in 2006 and 2013; and for his own work -related stress and anxi ety, in 2013 and 2014. In addition, Tower repeatedly excu sed Levaine’s absences and late arrivals as FMLA leave. The relevant events here occurred in July and August 2014. Levaine’s immediate supervisors then were Steven Kreider, Ryan Pa xton and Al Whittredge, who themselves reported to the assembly superintendent, Jeff Muether, who in turn reporte d to the plant manager, Bill Junge. On July 29, 2014, according to Levaine’s deposition testimony, he “probably” started having an anxiety attack when he woke up, and it “probably” co ntinued while he got ready for and commuted to work. Levaine arrived at wo rk “one or two minutes late,” and he told Whittredge, the supervisor on duty, that he “was late because of FMLA.” Levaine did not explain that he was late because of his anxiety, and Whittredge did not say that Levaine’s FMLA request was approved. Levaine wrote “FMLA” on his timecard. Two days later, Kreider, one of Levaine’s supervisors, met with Levaine and his Union steward, Brent Shears, to discuss a disciplinary write-up for Levaine’s late arrival on July 29. When Kreider gave Levaine the write-up, Leva ine became visibly upset and shouted that Whittredge had excused his late arrival. Kreider then called his supervisor, Muether, who told the group to come with him to find Whittredge. Muether walked out of the room. Levaine star ted to leave, but stopped and turned to face Kreider and Shears, 15 to 20 feet away. Levaine held up the wr ite-up and shouted to Kreider,No. 16-1782, Levaine v. Tower Automotive Operations

-3- “I’m going to get you on this.” Kreider and Sh ears ran up to Levaine, and Levaine repeated, “I’m going to get you on this” and said that he wa s going to file a complaint with the Department of Labor. Levaine, Kreider and Shears caught up to Muether and told him about the shouting incident. Muether tried to as k Whittredge about Levaine’s late arrival two days earlier, but Levaine, still screaming and yelling, would not le t Whittredge answer. Muether sent Levaine to another part of the plant to “settle down.” Muether then t ook statements from Kreider and Shears; in separate interviews, each of them inde pendently said Levaine ha d threatened Kreider. Muether found their statements credible. Muether also thought that Shears had no reason to lie, because he was Levaine’s union representative. Tower suspended Levaine and began to i nvestigate the incident. Eventually Tower determined that Levaine had threatened Kreide r in violation of the company’s anti-harassment policy. Tower fired Levaine on August 4, 2014, w ithout determining whether he should have been granted FMLA leave for his late arrival on July 29. Levaine thereafter brought this lawsuit, a sserting claims agains t Tower under the FMLA and Michigan law. Tower moved for summary judg ment, which the district court granted as to the FMLA claims. The court dismissed the stat e-law claims without pr ejudice. This appeal followed.
II. We review de novo the district c ourt’s grant of summary judgment. Hamilton Cty. Educ. Ass’n v. Hamilton Cty. Bd. of Educ. , 822 F.3d 831, 834 (6th Cir. 2016).No. 16-1782, Levaine v. Tower Automotive Operations

-4- A. Levaine argues that a jury could find that Tower interfered with his rights under the FMLA when it disciplined him for his late arriva l, suspended him for thr eatening his supervisor two days later, and ultimately fired him for that same incident. See 29 U.S.C. § 2615(a)(1). As an initial matter, Levaine must show that he was entitled to FMLA leave for his late arrival and that Tower denied it nonetheless. See Donald v. Sybra, Inc. , 667 F.3d 757, 761 (6th Cir. 2012). To be entitled to FMLA leave, an employee must both notify his employer of his need to take leave and state a qualifying reason for leave. See 29 C.F.R. § 825.301(b). If the employer lacks sufficient information to determ ine whether the FMLA applies, the employee must help his employer gather more details. See id . § 825.303(b). If the employee fails to do so, and the employer cannot otherwise determine if the request qualifies under the FMLA, then the employer may deny leave. Id. Here, Levaine thought that he was entitled to and had been granted FMLA leave for his late arrival on July 29. But Tower never official ly approved his FMLA request for that day. When Levaine objected to the disciplinary write-up two days later, his supervisors tried to gather more details. That investigation conceivably might have led Tower to excuse Levaine’s late arrival under the FMLA, but Levaine himself a borted the process when he shouted at his supervisors and prevented Whittredge from answer ing questions. And Levaine did not otherwise assist with Tower’s investigation. Tower thus could have properly de nied his leave request, which means Levaine did not establish that he was entitled to FMLA leave. His interference claim therefore fails.No. 16-1782, Levaine v. Tower Automotive Operations

-5- B. Levaine’s remaining claim is that Tower retaliated against hi m for invoking the FMLA when he arrived late on July 29. 29 U.S.C. § 2615(a)(2); see generally Donald , 667 F.3d at 761. To prevail on this claim, Levaine must present evidence that would allow a jury to find that Tower disciplined, suspended, and ultimately fired him “specifically because [he] invoked [his] FMLA rights.” Edgar v. JAC Prods., Inc. , 443 F.3d 501, 508 (6th Cir. 2006) (emphasis in original). If Tower states a legitimate, non-reta liatory reason for firing him, then Levaine must show that the company’s stat ed reason was pretextual. See Grace v. USCAR , 521 F.3d 655, 670 (6th Cir. 2008). Here, Tower st ated a perfectly valid reason fo r firing Levaine—that he had threatened a supervisor in viol ation of company policy. Levain e contends that the short time between his invocation of the FMLA and Tower’s decision to suspend and fire him would allow a jury to find that Tower’s real reason for these actions was his invocation of the FMLA when he arrived late on July 29. But “temporal proximity cannot be the sole basis for finding pretext.” Donald , 667 F.3d at 763. Moreover, any inference ba sed on temporal proximity here is negated by the fact that Levaine threatened his supervis or during that same time. Levaine therefore cannot show pretext based on timi ng. Nor would any of his other arguments about the putative unfairness of his firing allo w a jury to find pretext.
* * * The district court’s judgment is affirmed.