NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0960n.06 No. 10-6366 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

AMY RITENOUR, P laintif f-App ellant,

v. STATE OF TENNES SEE DEP ARTMENT OF HUMAN SERVICES, Defendan t-Appellee. ) ) ) ) ) ) ) ) ) ) ON AP PEAL F ROM THE UNITED STA T ES DISTRICT COURT F OR THE MIDDLE DISTRICT OF TENNESS EE

Before: CLAY A ND G IBBO NS, Circuit Judges; and KORMAN , District Judge. * JULIA SM I TH G I BB ON S, C I R C U I T J U D G E. Pl a intiff -appe llant Amy Ritenour broug ht this action ag ainst the State of Tenne ssee Depa rtment of Human Service s (“TD HS”) pursuant to the Family Medica l L eave Act (“F ML A”) , 29 U.S.C. § 2 601 et seq . Ritenour alleg ed that TDHS violated the FML A by interfe ring with her rig ht to take intermittent FML A leave and by reta liating ag ainst her for attempting to take FML A leave

. Ritenour appea ls the district court’s g rant of TDHS’s motion for summary

judgme nt. For the rea sons give n below, we aff irm. I

. The recor d reve als the foll owing fac ts. Rit enour w as hired by TDHS on May

16, 2007, as

a one y ear interim employ ee. On April 16, 2008, she beca me a full-time TDHS employ ee in a Clerk

The Honora

ble Edwar d R. Korman, United States District J udg e for the Easter n District of * New Y ork, sitting by

desig nation. 1Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 2 position. I n her new position, Ritenour’s direc t supervisor was Tane sha Hooper

. Hooper ’s

s u p er v i s or was Shar Amador, who repor ted to Kelvin Meeks. As an elig ible full-time sta t e employ ee, Ritenour ear

ned one day (7.5 hours) of annual leave (vac ation time) and one day of sick leave per mont h wo rk ed

. By Aug ust 2008, Ritenour had used most of her acc rued sick leave and annual lea

ve. Ritenour is a single mother of three children. Her eldest son has bipolar disorder, which is

a chronic condition, and oppositional defia nt disorder. He also has a history of suicide attempts and behavior problems. Ritenour h ad obtained thera py for him with Centerstone in Nashville. I n 1 Aug ust of 2008, her son’s behavior had worsene d, and Ritenour felt that she neede d to stay with him for his own s afe ty and to prepare fo r an d participa te i n intensive in-home t hera py service s, which

wer e also to be pr ovided by Centerstone. I n order to f

acilitate her eldest son’s treatment, take her children to doc tor’s appointments, and look for new hous ing, Rit enour sought to t ak e leave betwee n Aug ust 20, 2008 and the end of September 2008. H oweve r, bec ause she knew that she did not have the nece ssary annual lea

ve or sick leave time acc rued, Ritenour soug ht information from Hooper about whether she could obtain unpaid leave . Hooper

ref err ed Ritenour to Gar

y Stockton, a TDHS human re source s analy st. Ritenour rec alled meeting with Stockton in mid-Aug ust during her brea k. St o ck t o n told Ritenour that she did not qualify for FML A leave beca

use she was an interim employ ee and that she should ask her supervisor about taking leave

. Rite n o u r u n d er s t ood that she was not an interim

Centerstone is a not-for- profit provider of community -base d behavior al healthca re, which 1 provides mental he alth service s throug hout Tennesse e and I ndiana. 2Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 employ ee at the time but was unable to clar ify this with Stockton befor e she had to return to work. Following this meeting , Ritenour believed t hat August 20 would be her last day of work until she had the in-home service s in place for J ames. Ritenour believed she would be on leave beca use “no one said I didn’t g et leave ” and “ no one said that I wasn’t a pproved.” Although Ritenour asser

ts that she believed that she was on leave afte r Aug ust 20, 2008, she repor ted to work on Aug ust 21, 2008, beca use her unit neede d help at the front desk and she thought it would only be for half a day

. After Aug ust 21, Ritenour was absent from work for the last wee k of Aug u s t an d t h e fi rst wee k of September. The Employ ee Attendanc e and L eave Authorization Fo rm s —completed by Hooper in Ritenour’s absenc e—indicate that Ritenour was on unapproved leave from Aug ust 25 throug h Aug ust 29, 2008, and from September 2 throug h September 5, 2008. Despite her asser

tion that she believed that she was on approve d leave afte r Aug ust 20, Ritenour eng age d in a series of communications with TDHS employ ees that focuse d on her continued eff

orts to obtain leave or that involved reque sts for time off in September. On September 2, Stockton spoke with Ritenour on the phone about her options for leave

. Stockton explained that 2 3 Telephone calls made at TDHS are rec orded, with the exc ep t i on of a few upper level 2 employ ees, including Kelv i n Meeks and Shar Amador. Transc ripts of telephone conver sations betwee n Ritenour and Stockton and Ritenour and Hooper wer e ag ree d upon by both parties to fac ilitate the proce eding s. During their conver sation, Stockton told Ritenour that she could “apply for family medical 3 leave .” Howe ver, the conver sation then continued: Stockton: The only way that y ou g onna be au thorized any time off, is it a family medical e merg ency ? Ritenour: Not exactly

.
3Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 Ritenour only had seven hours of leave acc rued as of Aug ust 15, and since Ritenour confirme d that she di d not work between Aug ust 25 and 29, he concluded that Ritenour had already b ee n out for “at least four day s without pay .” Stockton instructed Ritenour to call Hooper , make her awa re of the situation, ask for the needed ti me o ff, and request t hat Hooper write a memo to Meeks requesting that Ritenour rec eive the time off. Ritenour spoke with Hooper on September 3 and 5, reg arding her absenc es and her leave status, and ag ree d that she wo u l d re t u rn t o work on September 8. 4 As discussed with H ooper, Ritenour returne d to w ork on Monday , September 8, 2008, and repor ted to work throug h September 10. On September 10, Ritenour printed out the TDHS empl o y ee handbook and broug ht it to Stockton. She told Stockton that she needed leave and that she believed that she was in fac t qualified to take leave under the handbook’s terms. Stockton told Ritenour to put her reque st for leave in writing , to supply a start and en d d at e, an d to provide a

rea son for the leave in the written reque st. After being told that Hooper was out on vacation for the

wee k, Stockton told R itenour to provide him with a copy of the re quest. Over her lunch hour, Ritenour ty ped up her leave reque st and testified that she left copies of it f or Hooper and Stockton. Both Hooper and Stockton, howe ver, failed to f ind the ir copies of the letter. Ritenour did not retur n to work at TDH S after Septe mber 10, 2008.

Stockton: Then y ou can’ t apply for family medical leave , y ou can alway s reque st specia l leave w ithout pay

. Hooper told Ritenour that altho u gh s h e s hould come back to work on September 8, she 4 would be place d on “lea

ve restric t i o n,” meaning that a sick day would be unexcused without a doctor’s note until Ritenour had acc rued a wee k of both a nnual leave and sick leave (which would take a bout five months). 4Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 On September 19, Ritenour spoke to both Hooper and Stockton over the telephone. Stockton expressed his belief that Ri te n o u r had been on unapprove d leave since September 10 and emphasized that submitt ing a leave reque st does not g uara ntee leave

. Hooper reminded Ritenour of their ear lier

conver sation, in which Ritenour rea ssured Hooper that she woul d n o t miss work ag ain afte r returning
to work on September 8, and pointed o u t t h at u p o n returning from vacation she had lear ned that Ritenour had, in fac t, missed more work. Although Stockton and Hooper emphasized the need for

an officia l reque st for leave and approva l of a leave reque st, Ritenour did not provide another copy of her leave reque st to S tockton or Hoope r. Ritenour did not repor

t to work on September 22, 23, 24, or 25, and her Employ ee L eave and Attendanc e form lists the absenc es as unapprove d leave

. Hooper testified that Ritenour also failed 5

to call in on those dates. Ritenour could not reme mber whether she called in on September 22, 23, 24, or 25. After Ritenour had been absent from work without approva l for leave and without calling

6 in for more than three consec utive day s (re fer red to as a no call/no show), Hooper rec ommended that Ritenour be discha

rg ed on the g rounds of job aba ndonment. Tenne ssee Depa

rtment of Personnel Rule 1 120-2-.14 is titled “Te nure, Suspension and Separation” and addr esses job aba ndonment:

Ritenour went to the emer g ency room on September 18 and was trea ted for stress-induce d 5 hives. Ritenour rec eived two sets of work excuses from her doctors for September 18 and 19, and September 22 throug h 25, but did not provide these excuses to TDHS. The TDHS call log indicates that a call from Ritenour’s home telephone number was place d 6 to Gar y Stockton’s number on September 22, 201 0

. The call was forty -four seconds in duration. The log does not show any calls fr om Rit enour to Hoope r betwe en September 22 and 25. 5Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 J ob Abandonment

. An em p l o y ee who is absent from duty for more than three (3) consec utive business d ay s wi thout g iving notice to the appointing authority or appropr iate manag er conce rning the re as o n for such absenc e and without secur ing permission to be on leave , or who fails to repor t for duty or to the immediate supervisor or appointing authority within (2) business day s afte r the expiration of any unauthorized leave of absenc e, absent unusual circ umstances c a u s ing the employ ee’ s absenc e or preve nting the employ ee’ s return, is considere d as having resig ned not in g ood standing

. The TDHS employ ee handbook distribute d at n ew employ ee orientation also contained a subheading on “Abse nteeism.” The subsection instructed: I f y ou must be late for work or absent beca us e o f i l l n es s or for an unfore seen circ umstance, personally

notify y our appr opriate ma

nag er or immediate s upervisor as soon as possible by telephone. Certain supervisors may desig nate a specific call-in time. When y ou have to be late or ab s en t , it is important that y ou g ive y our supervisor maxi mum advanc e notice so that repla ceme nt arr ang ements or work a s s ignme nts can be made. Your supervisor will cooper ate with y ou o n t h es e o cc asi ons if y ou will persona lly g ive as m u ch advanc e notification as possible. Howeve r, excessive absente eism is inappropriate. Remember that supervisors must acc ount for and approve all employ ee a

bsence s. The handbook also elabor ated upon the need fo r s u p ervisor authorization for leave and job abandonme nt under the “ Sick L eave ” subsec tion. The provision expl ained: I f y ou are not at work during y our re g ular hours, y ou must be on authorized leave

. T h i s means that y our supervisor knows of and has approve d y our absenc e. I n acc ordanc e with the law and rules, job abandon m en t o cc urs when an employ ee is absent from work without app ro v al for three consec utive workda y s or two consec utive workda

y s following the expiration of any authorized leave

. In the case of job abandonme nt , t he depar tment considers that the employ ee resig ned “not in g ood standing .” There fore , it is imperative that y ou keep y our supervisor informed of y our nee d for lea

ve as it ar ises. I n light of the above provisions and her belief that Ritenour was absent on unauthorized leave and had been a no call/no show for more than three business day s, Hooper m et wi t h M ee ks and

6Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 Amador to discuss her r ecommenda tion that Ri tenour be discharg ed. After discussing the lack of
contac t betwee n September 22 and 25, revie wing the call log to confirm that no calls wer e made to Hooper from R i t en o u r on those dates, and revie wing Hooper ’s S eptember 19 phone conversation with Ritenour, the rec ommendation was approve d. Hooper submitt ed a memo, dated September 25, 2 0 0 8 , r e c o mm e nding the “non-r etention of Amy Ritenour” to TDHS Commi ssioner Virg inia L odg e. L odg e then sent Ritenour a letter informing her of her “s ep ar at i o n from State service eff ective September 25, 2008.” Meeks testified t h at he was not awa re at the time of the meeting to discuss Ritenour’s termination that Ritenour’s eldest son is bipolar, t h at R itenour’s children have disabiliti es, or that her children were r ece iving se rvice s from Center stone. He te stified that the recommendation was made on the basis of job abandonme nt and that the additional information would not have chang ed his rec ommendation. Meeks also testified that he was not awa re that Ritenour had reque sted leave throug h the end of

September or

that she had a sked Stockton for F ML A leave

. 7

I I

. On September 2, 2009, Ritenour filed suit ag ainst TDHS alleg ing interfe renc e and reta liation claims under the FML

A and sex discrimination and reta liation claims under the Tenne ssee Human

Post-termination, Ritenour made eff orts to obtain cer

tific at i o n s i n order to comply with 7 FML A require ments. Centerstone staff completed medical cer tification paper

work on October 28, 2008, reque sting FML A leave for Rit en o u r in connec tion with her son’s mental health condition from Aug ust 20, 2008 throug h Octobe r 1 , 2 0 0 8. Ritenour also had her phy sician, Dr. Michelle Rorie, complete a leave cer tification form on November 11, 2008, reg arding the stress-induce d hives Ritenour suffe red in Septembe r 2008. 7Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 Rights Act (“TH RA”). The district court dismiss ed Ritenour’s THRA claims ag ainst TDHS for lack of subject matter

jurisdiction. TDH S the n moved for summary judgme nt on Ritenour’s FML A claims. On October 4, 2010, the district court g rante d TDHS’s motion for summary judgme nt. The district court found that there

wer e g enuine issues of mater ial fac t about “whe ther [R itenour] was elig ible for FML A leave , whether she was entitled to take FML A leave , whether she g ave TDHS notice of her intention to take FML A leave , and whether TDHS denied her FML A benef its to which she was entitled.” Howeve r, the district c ourt found that even assuming that Rit enour w as entitled to take unpaid FML A leave , “ther e i s still no dispute that [R itenour] failed to contac t her supervisor, Tane sha Hooper , on September 22, 23, 24 and 25 in acc ordanc e with the g ener ally appli ca b le [T] DHS policies on absente eism and job abandonme nt.” The district court found that Ritenour had failed to provide any evidenc e to g ener ate a g enuine issue of materia l fac t about whether TDHS’s rea son for terminating her was leg itimate and unrela ted to her exercise of FML A rig hts. The district court conclude d that Ritenour had not produce d evidenc e from which the jury coul d co n cl u de that TDHS’s proff ere d

rea son for termination was prete x tual. As a result, the district court awa rded summary judgme nt to TDHS on Ritenour’s interf ere nce a nd reta liation claims.

I I I

. This court revie ws “a district court’s g rant of summary judgme nt de novo and draw [s] all

rea sonable infere nces in favor of the nonmoving party .” Branham v. Gannett Sate ll ite Info. Network, Inc. , 619 F.3d 563, 568 ( 6th Cir. 2010). Summ ary judgme nt is appropr iate if “ there is no ge nuine dispute as to any

materia l fac t and the movant is entitled to judgment a s a matter of law.” F ed. R.

8Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 Civ. P. 56. A g enuine dispute a s to a materia l f act exis ts “ if the evidenc e is suc h that a rea sonable jury could return a verdic t for the nonmoving party .” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). To survive a “prope rly supported motion for summary judgme nt,” the nonmoving party must “set forth specific fac ts showing that there is a g enuine issue for trial.” Id. (interna l quotation marks omitted); Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). A. Ritenour makes two main a rg uments seeking to invoke the doctrine of equitable e stoppel. First, Ritenour argues that TDHS misrepre sented to her whether she could qualify for family medical leave and that she rea sonably relied on the repr esenta tions by attempting to obtain other forms of leave , which re sulted in her termination when she failed to comply with the call-in require ments. As a result, Ritenour claims that TDHS should be equitably estopped from claiming that her le ave

was not qua lified under the FML A. Second, Ritenour ar g ues that TDHS should be estopped from using the call-in policy to justify termination wh en there has been a reque st for FML A leave and TDHS has wa ived the policy that it later conte nds the employ ee violate d. “[I ]n cer tain circ umstances, equitable estoppel applies to employ er statements reg arding an employ ee’ s FML A elig ibilit y , preve nting the e mploy er f rom raising non-elig ibilit y as a defense .” Dobrowski v. Jay Dee Contractors, Inc. , 571 F.3d 551, 554 (6th Cir. 2009)

. I n order to pr evail on

an equitable estoppel argument, a plaintiff must demonstrate “(1) a definite misrepre sentation as to a material fac t, (2) a rea sonable reliance on the misrepre sentation, and (3) a re sulting detriment to the par ty rea sonably

relying on the misrepre sentation.” Id. at 557.

9Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 Assuming that Stockton’s st atements were a m isrepre sentation, Ritenour has st ill failed to show the nece ssary resulting detriment. To beg in with, the district court assumed that Ritenour was entitled to FML A l eave , and TDHS do es not expli citly challeng e R itenour’s eligibility for FML A leave

. I t is there fore unnece ssary for Ritenour to invoke equitable estoppel to pr event TDHS from challeng ing her elig ibilit y for family medical leave

. Ritenour also claims that equitable estoppel should apply beca

use Stockton’s statements make it unclea r what ty pe of leave Ritenour would have been on and whether she would have had to call in for eac h day of the leave

. Howeve r, Ritenour does not alleg e that Stockton (or any of her TDHS supervisors) told her that she wa s approve d for another ty pe of leave (for example, specia l leave ) or that employ ees on approve d FML A l eave do
not have to follow the call-in policy

. As a result, Ritenour cannot establish the nece ssary detrimental relianc e beca

use she cannot show that she would have been in compliance with the call-in policy but for the alleg ed misrepre sentation. Consist ent with this rea soning, the district court found that Ritenour failed to ra ise a g enuine issue f or trial re g arding

equitable estoppel bec ause Ritenour did not arg ue that she w as eve r told that she was e x empt from the da ily call-in re quirement. Ritenour also attempts to invoke equitable estoppel to preve nt TDHS from rely ing on its callin and absente eism policies to justify her termination. Ritenour argues th at A llen v. STHS Heart, LLC , No. 3:09-0455, 2010 WL 2133901, at *10 (M.D. Tenn. May 21, 2010), supports the use of the doctrine of equitable estoppel to preve nt an employ er from rely ing on company policy to support a termination decision when a F ML A leave reque st has been ma de and the company has previously waived the policy

. STHS Heart is of course not binding on this co u rt and in any event is distinguishable. I n that case , the plaintiff, who had been g rante d intermittent FML A leave , was told

10Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 by her supervisor that she did not have to follow the g ener ally applicable call-in proce dure when her medical c ondition caused he r to arr ive late to wor k. Id. at *5. As a re sult, the district court found that if the plaintiff rea sonably relied on the supervisor’ s instructions that pre- shift notice of tardiness

was not require d, then the employ er was estopped from taking those alleg ed attendanc e policy violations into acc ount in its termination decision. Id. at *10–11. Her e, Ritenour has not alleg ed that her supervisors told he r that she did not have to comply with the absente eism and call-in policies. I nstead, her ar gu m en t appears to be that since she violated the policies befor e without adver se

co n s eq uence s, her employ ers should there afte r be prohibited from invoking the policies as t h e

8 justification for any adver se employ ment action ag ainst her. Ritenour points to no misrepre sentation b y T DHS about the application of the attendanc e policies. Although she contends that she “may have relied upon” the content of her phone conver sations with Hooper and Stockton in failing to call in to work, Ritenour does not specify wher e in the conver sations she was told that she did not have
to ca l l i n . I nstead, she appea rs to arg ue that beca

use the conver sations focuse d on what was

nece ssary to obtain approve d leave , she would be justi fied in assuming that the pol icies no longe r applied. A failure of her supervisors to reiter ate in ever y conver sation with Ritenour that she neede d
to follow g ener ally applicable policies was not a misrepre sentation reg arding the application of the policies. As a r esult, Ritenour cannot re ly on equitable e stoppel to prevail on her claims. B.

For example, Ritenour admits that she did not comply with the call-in policy in Aug ust and 8 September 2008. Ritenour was absent without calling in on September 16, 17 and 18, and was not disciplined. Simi larly , she missed the last wee k of Aug ust and the first wee k of September with only periodic c ontact with work a nd, acc ording to TDHS, no authorization for the leave.

11Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 Under the FML A, elig ible employ ees are entitled to up to twelve workwe eks of leave during any twelve month per iod if the employ ee has a “ serious hea lth condition that makes the employ ee unable to perf

orm the functions” of her job, or if the employ ee needs such leave in order to car e for a child wit h a “serious health condition.” 29 U.S.C. § 2612(a) (1)( C), (a) (1)( D). When medically

nece ssary , leave may be taken intermittently or on a reduc ed leave schedule

. Id. § 2612(b)( 1). The “Enfor ceme nt” provision of the FML A provides employ ees with a private rig ht of action to protec t their rig hts to FML A leave

. Id. § 2617(a)

. “This court rec og nizes two distinct theories fo r re co very under the FML A: (1) the ‘entitlement’ or ‘interf

ere nce’ theory arising from 29 U.S.C. § 2615(a) (1); and (2) the ‘re taliation’

or ‘discrimination’ theory arising from 29 U.S.C. § 2615(a) (2).” Hoge v. Honda of Am. Mfg., Inc. , 384 F.3d 238, 244 (6th Cir. 2004). The interfe renc e provision of the FML A makes it “unlawf ul for any employ er to interfe re with, restra in, or deny the exercise of or the attempt to exercise, any rig ht provided in this subchapte r.” 29 U.S.C. § 2615(a) (1). A vi olation of t he act exis ts if an employ er interfe res with the FML A-c reated right to medi cal leave or t o reinstateme nt afte r qualified leave

. Arban v. W

es t Publ’g Corp. , 345 F.3d 390, 401 (6th Cir. 2003). In order to preva il under the interfe renc e theory , a plaintiff must prove that: “(1) she was an elig ible employ ee, (2) [t he employ er] is a covere d employ er, (3) she was entitl ed to leave under the FML A, (4) she g ave [the employ er] notice of her intent to take leave , and (5) [t he employ er] denied her FML A benef its or interfe red with FML A rig hts to which she was entitled.” Hoge , 384 F.3d at 244. Be cause the rele vant issue is whether the employ er provided the employ ee with the entitlements provided by the FML A, Arban , 345 F.3d at 401, an employ er may violate § 2615(a) (1) “re g ardle ss of the intent behind its conduct.”

12Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 Hoge , 384 F.3d at 244. Howeve r, the rig ht to non-interf ere nce with medical leave is not an absolute

one. Arban , 345 F.3d at 401. “[I ]nt erf ere nce with an employ ee’ s FML A rig hts does not constitute

a v iolation if the employ er has a leg itimate rea son unrela ted to the exercise of FML A ri gh t s fo r eng ag ing in the conduct.” Edgar v. JAC Prods., Inc. , 443 F. 3 d 5 01, 508 (6th Cir. 2006) (citing Arban , 345 F.3d at 401). Be cause we have rec og nized that “the FM L A i s n o t a strict-liability statute,” id. at 507, “the mer e occ urre nce of interfe renc e with an employ ee’ s FML A rig hts is not a per se FM L A violation.” Verkade v. United States Postal Serv. , 378 F. App’x 567, 575 (6th Cir. 2010) (interna l quotation marks omitted). I f an employ er proves a leg itimate rea son unrela ted to the exercise of FML A rig hts for terminating t h e em p l oy ee, the plaintiff must “re but the employ er’ s

rea son by showing that the proff

ere d rea son had no basis in fac t, did not motivate the termination,

or was insufficient to w arr ant the termination.” Donald v. Sybra, Inc. , 667 F.3d 757, 762 (6th Cir. 2012). 9 I n an unpublished decision, this court held that an employ er could terminate an employ ee on FM L A l ea ve for violating the more stringe nt require ments of a concur rently run paid sick leave p o l i cy , which included a call-in require ment. Allen v. Butler Cnty. Comm’rs , 331 F. App’x 3 8 9 , 394–97 (6th Cir. 2009). Be cause the call-in proce dures established the obligations of employ ees on any ty pe of leave , whether pursuant to the FML A or not, this court found that the employ er was not liable for interfe ring with the employ ee’ s rig ht to take FM L A l eave. Id. at 395–96. Other courts h av e als o aff

irmed g rants of summary judgme nt in favor of employ ers on employ ee FML A

This court rec ently clar ified in Donald that the McD onn el l Douglas burden- shifting 9 framework applies to interfe renc e as well as reta liation claims under the FML A. Donald , 667 F.3d at 762. 13Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 interfe renc e claims wher e the empl o y ee s, who were found to be entitl ed to FML A l eave , violated applicable attendanc e policies. See Bacon v. Henne pin Cnty. Med. Ctr. , 550 F.3d 711, 714–15 (8th Cir. 2008); Lewis v. Holsum of Fort W ayne, Inc. , 278 F.3d 706, 709–10 (7th Cir. 2002). In a fac tual situation somewhat closer to the prese nt case , the Tenth Circuit upheld summary judgme nt in favor of the employ er on an employ ee’ s FML A interfe renc e claim wher e the employ ee attempted to apply for a medical leave of absenc e and then violated the employ er’ s call-in policy (bef ore her application

was proce ssed) by failing to “show up to work for three consec utive day s and [failing to] notify her supervisor of those absenc es.” Bones v. Honey well Int’l, Inc. , 366 F.3d 869, 874, 877–78 (10th Cir. 2004). The Tenth Circuit found that the employ ee would have been terminated “i rr es p ective of whether or not these a

bsence s were rela ted to a re quested medic al l eave ” and that the “request for

an FML A leave does not shelter [t he employ ee] from the obligation, which is the same as that of any other Honey

well employ ee, to comply with Honey well’s employ

ment policies, including its absenc e policy .” Id. at 878. Ritenour argues that the district court err oneously construed fac ts and drew infere nces in favor of TDHS to conclude that TDHS had a leg itimate business rea son for her termination that was unrela ted to the exercise of her FML A rig hts. Ritenour contends th at t h e district court inappropria tely focuse d on the leg itimate business rea son for Ritenour’s termination that TDHS put forwa rd and ignor ed discrepa

ncies in the testimony of TDHS witnesses reg arding the ra tionale for Ritenour’s termination. TDHS admits for the pur

poses of a ppeal that, a s the district court found, there are g enuine issues of materia l fac t about Ritenour’s elig ibilit y for FML A leave , whether she was entitled to take

14Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 such leave , whether she g ave notice to TDHS about her intention to take FML A leave , and whether she was denied FML A benef its to which she was entitled. Thus, the first four elements of Ritenour’s interfe renc e claim are not in dispute. Our inquiry focuse s on whether Ritenour can establish the fifth element of her interfe renc e claim: whether TDHS denied her FML A b en ef its or interfe red with FML A rig hts to which she was e ntitled. Even assuming that Ritenour was entitled to take FML A leave and that TDHS interfe red with Ritenour’s FML A rig hts, TDHS has provided a leg itimate rea son for Ritenour’s dismiss al that is not rela ted to her reque st for FM L A l eave. Hooper testified that she rec ommended Ritenour’s termination beca

use Ritenour did not call in, in violation of the job abandonme nt policy , and that she could not rec all considering any other information in making her decision. Meeks and Amador also testified that the ter

mination recommendation was made be cause of job aba ndonment. Ritenour cannot succe ed on her interfe renc e claim beca use she has not set forth specific fac ts showing that there is a g enuine issue for trial as to whether her termination was rela ted to the exercise of FML A rig hts. There is no dispute that on September 19, Ritenour spoke with Stockton who in fo rm ed h er t hat she was out on unapprove d leave , that he believed that Ritenour had not reque sted the time off prior to taking it, that Ritenour had failed to provide a doctor’s note or written
statement indicating why she was awa y from work, that an employ ee awa y from work for the amount of time that Ritenour had been awa y needs to be on some ty

pe of approve d leave , that Ritenour’s letter had not been recei ved, that Ritenour had to make ever y eff ort to persona lly g et her leave reque st to her supervisor, and that simply submitt ing a reque st w ithout obtaining its approva l does
not allow an employ ee to be absent from work. After her conver sation with Stockton, Ritenour did

15Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 not bring in the reque sted documentation for her absenc es and admits that she did not call work on September 23 and 24 an d d i d n o t come in to work betwee n September 22 and 25. TDHS phone

rec ords indicate that no calls wer e made fr o m R i t enour’s home number to Hooper betwee n September 22 a

nd 25, and Hoope r testified that she w as not c ontacted by Ritenour. Under the job abandonme nt policy applicable to TDHS employ ees, “an employ ee who is absent from duty for more than three (3) consecu t i v e business day s without g iving notice to the appointing authority or appropr iate manag er conce rning the rea son for such absenc e and without secur ing permission to be

on leave

. . . absent unusual circ umstances causin g t h e employ ee’ s absenc e . . . is considere d as having resig ned not in g ood standing .” Despite the fac t that R i t en o u r knew that she was on unapprove d leave and had not provided the information reg arding her absenc e to her supervisor, she did not make contac t with TDHS fr o m September 22 throug h September 25, she did not provide medi ca l ex cu s es , and she made no reque st for leave afte r being told that her letter had not been

rec eived. Hooper rec ommended Ritenour’s non-re tention for job abandonme nt based on her failure
to make contac t. Fur

ther, Ritenour knew that the absente eism policy require d that absent employ ees call-in their a

bsence s in order to g ive t heir supervisor appropr iate noti ce to make alternative work assig nment arr ang ements. TDHS’s job abandonme nt policy applies to all employ ees who are absent from duty without approva l. The enfor ceme nt of that policy ag ainst Ritenour was not rel at ed to Ritenour’s reque st for FML A leave beca use the policy applies to employ ees who are absent from work without approva l for any rea son. Acc ording ly , Ritenour’s interfe renc e claim fails, unless she can showthat TDHS’s prof fer ed re ason for

the adve rse e mploy

ment decision was prete x tual. See Donald , 667 F.3d a t 762.

16Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 “A plaintiff can demonstrate prextex t by showing that the proff ere d rea son (1) has no basis in fac t, (2) did not actua lly motivate the defe ndant’s challeng ed conduct, or (3) was insufficient to

war rant the challeng ed conduct.” De w s v. A.B. Dick Co. , 231 F.3d 1016, 1021 (6th Cir. 2000). Ritenour has failed to demonstrate an issue of materia l fac t as to whether TDHS’s proff ere d rea sons for her termination wer e pretex tual. Ritenour has not demonstrated that the stated rea son for her discharg e, her violation of the absente eism policies due to her no call/no show from September 22 throug h September 25, ha s no basis in f act. Her claim that she did not violate the call-in policy as it applied to her lacks support in the rec ord. Whil e Ritenour was not previously subject to discipline for her failure s to call-in her absenc es, this is not evidenc e that she did not violate the attendanc e and absente eism policies or that the policies applied to her differ ently

. Ritenour had printed out the employ ee handbook and knew of the absente eism policy and had previously called in her absenc es. Hooper also spoke with Ritenour on September 3 and 5 about her problematic attendanc e and told Ritenour that she would allow Ritenour to retu rn t o work but Ritenour would be place d on leave restric tion. This g ave Ritenour notice that she was expected to repor t to work, that her prior actions reg arding attendanc e were problematic, and that s h e wo u l d not be allowed any further unexcused absenc es. Fur

ther, her TDHS s u p er v i s o rs consistently stated that they believed that the policies applied to Ritenour and that she had v i o l at ed them. Hooper , Meeks, and Amador consistently testified t hat t hey made the decision t o rec ommend non-re tention to the commi ssioner because of Ritenour’s failure to call in her absenc es and the lack of co n t ac t from Ritenour. Even cre diting Ritenour’s contention that she should have been g iven written notice as to what call-in require ments applied to her, Ritenour has not prese nted evidenc e t h at her TDHS supervisors made the adver se
17Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 employ ment decisi o n b as ed on any thing but their honestly held belief that Ritenour had violated applicable absente eism and job abandonme nt policies. See Braithwai te v. Timken Co. , 258 F.3d 488, 494 (6th Cir. 2001). Fur

ther, to the extent that Ritenour argues that prete x t may be inferr ed from the fac t that the call-in policy was not enfor ced consistently ag ainst her, she has not car ried her burden of raising a g enuine issue of materia l fac t on this point. Her e, TDHS enfor ced a g ener ally applicable policy that was direc tly rela ted to the conduct at issue. Although Ritenour’s supervisors likely could have e nforc ed the policy

ag ainst Ritenour for e arlier periods of no c ontact, Ritenour’s supe rvisors attempted to work with her t o h elp her comply with what they believed wer e the nece ssary proce dures for obtaining approve d leave

. Ritenour did not adduce evidenc e demonstrating that the policy was not enfor ced ag ainst other employ ees simil arly absent on unapprove d leave , or that the policy was simply

not enforc ed in g ener al. Ritenour also argues that the close temporal proxi mity of her reque sts for FML A leave and her termination and the fac t that TDHS sug g ested that she apply for specia l leave instead of FML A leave “ra ise issues of pretext .” “Unlike its role in establishi n g a p ri m a fac ie case, ‘the law in this circ uit is clea

r that temporal prox i m i t y ca n not be the sole basis for finding prete x t.’” Seege r v. Cincinnati Bell Tel. Co. , 681 F.3d 274, 285 (6th Cir. 2012) (quoting Donald , 667 F.3d at 763); see also Skrjanc v. Great L akes Power Serv. Co. , 272 F.3d 309, 317 (6th Cir. 2001). Howeve r, this 1 0

Our c ase la

w when e valuating the import of temporal proximit y as evide nce of

causation 1 0 as part of a prima facie case of retaliation is less clea r. See Krumheuer v. GAB Robins N. Am., Inc. , No. 10-4396, 2012 WL 1700702, at *5 (6th Cir. May 16, 2012) (discussing lack of a uniform approa ch with reg ard to estab lishing a causa l connec tion “solely on the basis of temporal proxi mity ”). I ndeed, althoug h “[s] ubstantial case law from this circ uit cautions about the permissibilit y of draw ing an infere nce of causa t i o n fr o m temporal proxi mity alone,” Veree cke v. Hur o n V a l l ey Sch. Dist. , 609 F.3d 392, 400 (6th Cir. 2010), “our case law

. . . rec og niz[ es] the 18Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 court has found that “suspicious timing is a strong indicator of prete x t when acc ompanied by some other, independe nt e vidence .” Bell v. Pre fix, Inc. , 321 F. App’ x 423, 426 (6th Cir. 2009) (citation omitted). Given that TDHS contends t h at i t decide d to rec ommend the non-retention of R itenour afte r she violated the absente eism policy and the fac t that Ritenour violated the policy beca use she thought she was out on leave , temporal proxi mity is almost unavoidable and under the circ umstances does not appea

r to be particula

rly probative of prete x t. Indeed, it would be difficult to avoid finding

an employ er’ s enfor ceme nt of a no-ca ll/no-show a bsentee ism policy

such as TD HS’s prete x tual if temporal proxi mity alone was enoug h to establish that the proffer ed re as o n for discharg e was prete x tual. The fa ct that Stockton sug g ested that Ritenour take specia l le ave a lso does not ge nerate an issue of materia l fac t reg arding whether the proff ere d rea son for Ritenour’s d is c h a r g e w a s p r e te xtu a l. S t o ck t o n did not make the decision to rec ommend Ritenour’s non-re tention. Fur ther, the reco rd sug g ests that Stockton pr esente d specia l le ave as an option in an effor t to help Rit enour obtain the time off that she soug ht. Ritenour did not set forth evidenc e indicating that Stockton’s sugg estion should le ad to the infere nce that Hooper, Me eks, or Ama dor we re hostile to FML A leave reque sts and that the pr offe red r eason f or Ritenour’s discha

rg e wa s pretextual.

possibili ty that, on a particula r set of fac ts, extremely clos e temporal proxi mity could permit an infere nce of reta liatory motive, but also rec og niz[ es] that often evidenc e in addit i on to temporal proxi mity is require d to permit the infere nce. Id. at 401. I n the context of establishing a prima facie case of F ML A re taliation—in contrast to establishing a prete x t in a

n interfe renc e claim—we ha ve found that temporal proxi mity alone may suffice

. See Seege r , 6 8 1 F. 3 d at 283–84; DiCarlo v. Potter , 358 F.3d 408, 421–22 ( 6th Cir. 2004). 19Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 Ritenour also ref

ers to “var

y ing rea sons for [her] termination” offe red by TDHS and arg ues that the inconsistency raises an infere nce of prete x t sufficie nt to withstand a motion for summary judgme nt. Ritenour contends that TDHS’s ex planation i s inconsistent beca use i t cited R itenour’s notification that she was on unapprove d leave and neede d to r eturn to work, the absenc es betwee n September 22 and 25, and the prior unexcused absenc es t o ex p l ai n the decision to terminate Ritenour’s employ

ment. An employ er’ s chang ing rationale for making an adver se employ ment decision can call into question the cre dibilit y of the proff ere d rea son and serve as evidenc e of prete x t. See Cicero v. BorgW arner Auto., Inc. , 280 F.3d 579, 592 (6th Cir. 2002)

. Howeve r, the “var y ing rea sons” at issue in this case do not seem to be simil ar to the ty pical shifting justifications that have been found sufficie nt to raise a g enuine issue of materia l fac t reg arding prete x t. See Harris v. Metro. Gov’ t ofNashville , 594 F.3d 476, 487 (6th Cir. 2010). Ritenour argues that it is not clea r that the termination decision

wa s based on the no call/no s how from September 22 throug h September 25. She claims that th e officia l te rmination letter ref ers to the September 19 phone call betwee n Hooper and Ritenour as a motivator for the termination decision and claims that the phone call “included neith er notice of unapprove d leave nor any demand to return to work.” Howe v er , the termination letter does not expli citly cite the Septembe r 19 phone c all as the g rounds for the non-re tention decision. I nstead, the letter appea

rs to cite the phone call for context. The phone call with Hooper clea rly is a continuation of the prior conver sations betwee n Hooper and Ritenour reg arding Ritenour’s status

as absent on unapprove d leave

. Hooper testified that she rec ommended Ritenour’s termination due
to her failure to make contac t or call in her absenc es from September 22 throug h September 25. The

20Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 memorandum sent to Commi ssioner L odg e cited the failure to make contac t on the dates in question. Both Meeks and Amador also testified that the decision to rec ommend non-re tention was made afte r confirming that there was a lack of contac t on the day s in question. Amador did indicate that the fac t that Ritenour had not repor ted to work afte r being told to reque st specia l leave fac t o re d i n t o h er decisionmaking proce ss beca use employ ees are require d to repor t to work until their leave i s approve d and Ritenour had been told that she was to return to work. Howeve r, thi s d o es n o t repr esent a vary

ing rea son for Ri tenour’s termination. I nstead, in contex t, it appear s to have be en another fac tor Amador considere d in deter mining whether it was appropr iate to hold Ritenour to the
atten d ance policy

. Fur

ther, invoking prior unexcused absenc es does not nece ssarily repr esent a

s h ifting rationale as the centr al issue rema ins Ritenour’s attendanc e, and the prior unex cu s ed ab s en ce s might reasonably have led TDHS to decide that it was necessa ry to hold Ritenour to the attendanc e policy

. Ultimately , Ritenour’s prete x t argument seems to rest on the timing of TDHS’s decision to terminate her and the fact that she had not pr eviously been disciplined for earlier violations of t he attendanc e policy

. Yet temporal proxi mity is not enoug h to demonstrate that an empl oy er’ s profe rre d rea son was a prete x t for discrimination, Seege r , 681 F.3d at 285, and Ritenour has failed to pr oduce sufficie nt e vidence to sug g est that the decision to e nforc e the attendanc e policy ag ainst

was prompted by an improper motive. As a result, Ritenour has not car ried h er b u rd en t o raise a materia l issue of fac t as t o wh ether the proff ere d rea son for termination was prete x tual and her interfe renc e cla im fails.

21Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 C. Ritenour also argues that the evidenc e reve als that questions of fac t exis t reg arding whether the leg itimate, non-discriminatory re as o n s TDHS proff ere d to explain its decision to terminate Ritenour wer e pre text for F ML A re taliation ag ainst Ritenour. For a claim broug ht under the reta liation theory , the motive behind the employ er’ s decision to take the a dverse employ ment action matter s. Edgar , 443 F.3d at 508. “The employ er’ s motive is relev an t beca

use reta liation claims impose liability on employ ers that act ag ainst employ ees specific ally because those employ ees invoked t h eir FML A rig hts.” Id. The burden- shifting framework established from McD onnell Douglas Corp. v. Green , 411 U.S. 792 (1973), applies to FML A reta liation claims. Edgar , 443 F.3d at 508; Skrjanc , 272 F.3d at 315. Under the McD onnell 1 1 Douglas framework, the plaintiff must first establish a prima facie case of discrimination. 411 U.S.
at 802. A plaintiff can make out a prima facie case by showing : (1) “she availed herse lf a protec ted rig ht under the FML A

. . . , (2) she suffe red an adver se employ ment action, and (3) there was a

causa l connec tion betwee n the exercise of her rig hts under the FML A and the adver se employ ment action.” Edgar , 443 F.3d at 508. I f the plaintiff makes out a prima facie case , the burden shifts to the defe ndant to provide a leg itimate, no n d i s cr i m i n at o ry rea son for the dismiss al. Id. I f the defe ndant articula tes such a rea son, the plaintiff then bear s the burden of demonstrating that the g iven re ason is prete x t for discrimination. McD onnell Douglas , 411 U.S. at 804–06.

As noted above, Donald found that the tripartite test also applies to FML A interfe ren ce 1 1 claims. Donald , 667 F.3d a t 762. 22Amy Ritenour v . Tenn. Dep’ t of Human Servs.

No. 10-6366 Assuming, as the district court did, that Ritenour could establish a prima facie case , the burden shifts to TDHS to prese nt a leg itimate non-discriminatory rea son for Ritenour’s termination. TDHS met its burden by introducing ev i d ence that Ritenour’s supervisors terminated her for her failure to comply with the absenteei s m p olicies by failing to make contact with TDHS and call in her absences for four day s in a row. Ritenour must then car ry her burden of demonstrating that TDHS’s proff

ere d rea son for her termination is prete x tual. The prete x t analy sis of her interfe renc e claim applies to Ritenour’s reta liation claim as well. As discussed above, Ritenour has not met her burden to show that TDHS’s proff ere d rea son was prete x tual. As a result, her reta liation claim fails.

I V. For the fore g oing r easons, we aff irm the district court’s de cision.

23