In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-1579

BRANDI LUTES, Personal Representative of the Estate of

BUDDY F. PHILLIPS,

Plaintiff-Appellant,

v.

UNITED TRAILERS, INC., and UNITED TRAILERS EXPORTING INC.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 2:17-CV-00304 RLM — Robert L. Miller, Jr., Judge.

____________________

ARGUED NOVEMBER 13, 2019 — DECIDED JANUARY 27, 2020

OPINION ISSUED FEBRUARY 13, 2020∗

____________________

Before BAUER, BRENNAN, and SCUDDER, Circuit Judges.

PER CURIAM. Buddy Phillips (now deceased) injured his 

ribs while playing with his grandchildren. Over the next two 

∗ The court initially resolved this appeal by nonprecedential order. 

The order is being reissued as an opinion.
2 No. 19-1579

weeks he called his employer, United Trailers, to report he 

would miss work. Eventually Phillips stopped calling in and 

did not appear for work on three consecutive days so United 

fired him. He sued, alleging United failed to properly notify 

him of his rights under the Family Medical Leave Act 

(“FMLA”) and that he was fired in retaliation for attempting 

to exercise his right to seek leave under that Act. The district 

court granted summary judgment for United. This appeal 

presents a complicated fact pattern under the FMLA in which 

the employee (through unreported absences) and the employer (by failing to inform the employee of requisite information about FMLA leave) may have failed to comply with 

the FMLA. We affirm the district court’s judgment as to Phillips’s retaliation claim but vacate the court’s judgment concerning Phillips’s interference claim and remand for further 

proceedings consistent with this order. 

I. Background

Phillips was employed by United Trailers, Inc., from 2002 

until he was fired in 2015. United manufactures enclosed 

cargo trailers and employs over 130 people. Phillips worked 

as a metal department trimmer installing fenders, trim, and 

lights to the back of trailers. Like a typical United production 

worker, he worked eight to ten hours a day, depending on 

production needs. 

On July 3, 2015,1 Phillips injured his ribs while playing 

with his grandchildren. The next day he went to the hospital 

and was diagnosed with fractured ribs. X-rays also revealed 

heart issues that required additional testing. The medical 

notes from Phillips’s visit reflect that he was told to conduct 

1 All events referenced in this Order took place in 2015.
No. 19-1579 3

“activity as tolerated.” He still felt pain, however, and returned to the emergency room six days later. 

Phillips’s first scheduled workday after the holiday was 

July 6. He was unable to work because of his ribs, so he called 

in to report his absence. United’s attendance policy requires 

employees to report absences by calling United’s main telephone number and leaving a message no later than fifteen 

minutes before the start of a scheduled shift. Employees who 

do not comply with this procedure accrue “points,” and an 

employee who accrues thirteen points will be fired. Under 

this system, an employee who fails to call in for three consecutive days will accrue fifteen points. Phillips’s widow, 

Rhonda, testified Phillips knew United’s attendance policy. 

On the days he was scheduled to work over the next two 

weeks, Phillips (or Rhonda on his behalf) telephoned in his 

absences in accordance with United’s attendance policy. He 

called off work on July 6, 7, 8, 14, and 16. These calls were 

reported and logged by Linda Nichols, a payroll assistant at 

United, in a “call-in log.” Nichols testified she keeps a record 

of all reported absences in the call-in log, and she regularly 

reviews the log with the director of human resources so he 

can identify and address attendance policy violations. Nichols’s entry in the call-in log for July 6 lists “rib,” without elaboration, as Phillips’s reason for his absence that day. No other 

entry lists a reason for Phillips’s absence. Rhonda attested that 

at some point in early July, she had told Nichols that Phillips 

had fractured his ribs and he would not be at work for a while. 

But Nichols testified that other than the July 6 “rib” note in 

the call-in log (that she reproduced from Phillips’s voicemail), 

neither Phillips nor Rhonda provided any further explanation 

for his absences. 
4 No. 19-1579

Randy Snyder, the plant manager, also listens to employee 

voicemails describing absences, and he passes that information on to “group leaders” so they know if an employee 

will miss their scheduled shift. Rhonda testified she and 

Phillips both had called Snyder and told him Phillips had 

fractured his ribs and he needed time off to recover and have 

testing done on his heart. Snyder recalled one brief conversation with Rhonda about Phillips’s “chest area.” Rhonda also 

testified she spoke with Nichols about seven times, trying to 

get in touch with Snyder to discuss Phillips’s absences, but 

she was unable to reach him. 

Also of note, United’s director of human resources testified that neither Nichols nor Snyder had any certification in 

human resources or the FMLA. 

Phillips followed up with his primary care physician on 

July 15, who recommended he not return to work until early 

August. Phillips did not provide documentation of that visit 

or his physician’s recommendation to United. 

After two weeks of not being able to work, Phillips 

stopped reporting his absences to United. Specifically, he did 

not call in to report his absences on July 20, 21, 22, or 23. As a 

result, he accrued more than 13 points, and United promptly 

fired him. Up to this point, Phillips had not provided to 

United medical records about his fractured ribs. United had 

not asked for any such information, nor had it informed Phillips of his ability to take leave under the FMLA. Rhonda testified had Phillips known he was able to take leave under the 

FMLA, he would have done so. 

Phillips sued asserting United violated the FMLA, 29 

U.S.C. § 2617, by interfering with his “entitlement to leave” 
No. 19-1579 5

when it failed to inform him of his eligibility and rights under 

the Act. He also claimed United fired him in retaliation for 

exercising his FMLA rights. To prevail on a claim that an employer interfered with the employee’s rights under the FMLA, 

the employee must demonstrate (1) he was eligible for the 

FMLA, (2) his employer was covered by the FMLA, (3) he was 

entitled to leave under the FMLA, (4) he provided notice of 

his intent to take leave, and (5) his employer denied him

FMLA benefits to which he was entitled. 29 U.S.C. § 2615; 

Guzman v. Brown Cty., 884 F.3d 633, 638 (7th Cir. 2018). To establish retaliation, an employee must demonstrate he was engaged in a protected activity, the employer took an adverse 

employment action against him, and there was a connection 

between his protected activity and the adverse employment 

action. See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 220 

(7th Cir. 2015).

Regarding Phillips’s interference claim, the district court 

acknowledged triable questions existed over whether Phillips’s rib injury was a serious medical condition. The court 

noted the record was thin on this point: Phillips was diagnosed with a broken rib and told to perform activity as tolerated; his primary care physician told him to not return to 

work until August; and his wife and daughter testified Phillips’s ability to walk and lift his arms were impaired. While 

the proof was sparse, the court ruled a reasonable jury could 

conclude Phillips’s rib injury was a qualifying serious medical 

condition. Next, the district court determined that questions 

of fact existed as to whether Phillips provided adequate notice 

of his injury to United. The court noted that the evidence 

showed Phillips had called United and communicated his rib 

injury. While the parties disputed the precise contents of the 

conversation, because Phillips had done more than merely 
6 No. 19-1579

ask for time off—he provided a reason for his absence—it was 

a material question of fact for the jury to decide whether Phillips had provided adequate notice. 

Notwithstanding these rulings, the district court 

ultimately entered summary judgment for United. The court 

concluded that because it was undisputed Phillips had eventually stopped calling United to report his absences, that failure precluded his FMLA-interference claim. In support of this 

conclusion, the district court cited to Righi v. SMC Corp. of 

Am., 632 F.3d 404 (7th Cir. 2011). In Righi, this court noted the 

FMLA regulations “explicitly provide that employers may require their employees to comply with their ‘usual and customary notice and procedural requirements’ when requesting 

FMLA leave.” Id. (quoting 29 C.F.R. § 825.302(d) (2006)). Citing prior cases that discussed § 825.302(d), we concluded “an 

employee’s failure to comply with his employer’s internal 

leave policies and procedures is a sufficient ground for termination and forecloses an FMLA claim.” Id. at 411. Relying on 

Righi, the district court concluded Phillips’s failure to follow 

United’s attendance policy precluded his interference claim.

Turning to Phillips’s retaliation claim, the district court 

ruled Phillips had failed to present any evidence of discriminatory or retaliatory intent or even that he had engaged in 

protected activity. The only permissible inference from the 

record, the court concluded, was that United fired Phillips because he failed to comply with its attendance policy. 

II. Discussion

We review the district court’s grant of summary judgment 

de novo. King v. Ford Motor Co., 872 F.3d 833, 837 (7th Cir. 

2017). We construe the facts and draw all reasonable 
No. 19-1579 7

inferences in a light most favorable to Phillips as the nonmoving party. Id. Summary judgment is appropriate when 

there is no genuine dispute of material fact and the moving 

party is entitled to judgment as a matter of law. FED. R. CIV. P. 

56(a).

A. Interference with FMLA Rights

Phillips primarily challenges the district court’s conclusion that United did not interfere with his rights under the 

FMLA. He does not dispute he failed to comply with United’s 

policies regarding absences, which ordinarily would foreclose his FMLA claim. See Righi, 632 F.3d at 411; 29 C.F.R. 

§ 825.303(c). Instead, he contends United violated the FMLA 

and interfered with his rights because it did not provide him 

the requisite leave information before he stopped reporting his 

absences. See 29 C.F.R. §§ 825.301(a), 825.303(b). 

1. The FMLA and Enacting Regulations

The FMLA entitles an eligible employee to take up to

twelve work weeks of leave when the employee has a serious 

health condition that renders him unable to perform his position. 29 U.S.C. § 2612(a). It is unlawful for an employer to interfere with an employee’s attempt to exercise his FMLA

rights. Id. § 2615(a). 

The employee and the employer have shifting responsibilities under the FMLA. Where the need for leave is unforeseeable, as was here, the employee must provide notice of his 

intent to take leave to the employer as soon as practicable under the circumstances. 29 C.F.R. § 825.303(a). The notice must 

“provide sufficient information for an employer to reasonably 

determine whether the FMLA may apply to the leave request.” Id. at §§ 825.303(b); 825.301(b). Such notice may 
8 No. 19-1579

include “that a condition renders the employee unable to perform the functions of the job.” Id. at § 825.303(b). The employee does not, however, need to be aware of his FMLA 

rights to invoke them: “[t]he employee need not expressly assert rights under the FMLA or even mention the FMLA, but 

may only state that leave is needed.” Id.; § 825.301(b).

The burden then shifts to the employer. The employer 

must decide whether to designate the request for leave as 

FMLA-qualifying, and its decision to designate FMLA leave 

“must be based only on information received from the employee.” 29 C.F.R. § 825.301(a). If the employer does not have 

enough information about the reason for an employee’s request for leave, the employer should inquire further of the 

employee to determine whether leave is potentially FMLAqualifying. Id. The employer must notify the employee

whether leave will be designated as FMLA-qualifying within 

five business days after the employee requested leave, absent 

extenuating circumstances. Id.; § 825.300(d). 

Throughout this time period, the employee must comply 

with the employer’s “usual and customary notice and procedural requirements for requesting leave.” 29 C.F.R. 

§ 825.303(c). If the employee does not comply with the employer’s usual leave-request requirements, FMLA leave may 

be delayed or denied. Id. If, however, the employee provides 

notice and complies with the employer’s attendance policy, 

the employer’s failure to timely determine whether the employee’s leave counts as FMLA-qualifying may constitute an 

interference with the employee’s FMLA rights if it caused the 

employee to suffer harm. Id. at §§ 825.300(e); 825.301(e).
No. 19-1579 9

2. Did Phillips Demonstrate a Qualifying Injury?

We turn now to the district court’s analysis of Phillips’s 

FMLA-interference claim. Recall that to establish a prima facie case of interference, Phillips needed to demonstrate (1) he

was eligible for the FMLA, (2) his employer was covered by 

the FMLA, (3) he was entitled to leave under the FMLA, (4) he

provided notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled.

29 U.S.C. § 2615; Guzman, 884 F.3d at 638. The district court 

decided questions of fact precluded summary judgment as to 

whether Phillips’s rib injury entitled him to FMLA leave and 

whether he provided notice of his intent to take leave. 

First we consider whether Phillips was entitled to FMLA 

leave. As applicable here, to be qualified for leave under the 

FMLA Phillips must have suffered a “serious health condition.” 29 U.S.C. § 2612(a). The FMLA defines a serious health 

condition as an injury that involves inpatient care at a hospital 

or that requires continuing treatment by a health care provider, and that renders an employee unable to perform his 

job. 29 U.S.C. § 2611(11). Phillips argues his rib injury constituted a serious health condition that rendered him unable to 

perform his job as a metal trimmer. United disagrees. Viewing 

the evidence in the light most favorable to Phillips, see King,

872 F.3d at 837, a reasonable jury could find that Phillips’s rib 

injury constituted a serious health condition. Phillips went to 

the emergency room and received x-rays for his fractured 

ribs. His wife testified he went back to the hospital six days 

later because his pain had not subsided. He then had a followup appointment with his primary care physician. A reasonable jury could find that Phillips’s rib injury required inpatient 

care at a hospital or continuing treatment by a health care 
10 No. 19-1579

provider and rendered him unable to perform his manual labor job, thus constituting a serious health condition. See 29 

U.S.C. § 2612(a); Valdivia v. Twp. High Sch. Dist. 214, 924 F.3d 

395, 398–99 (7th Cir. 2019) (reasonable jury could find that 

anxiety and depression diagnosis, coupled with four days of 

inpatient care at hospital, constituted serious medical condition).

3. Did Phillips Provide Notice of his Intent to Seek 

 Leave?

Next, the parties disagree about whether Phillips provided notice to United about his intention to seek FMLA 

leave. The district court determined that questions of fact also 

precluded summary judgment on whether Phillips provided 

such notice. 

On his first workday after his injury, Phillips followed 

United’s procedures and left a voicemail to report his absence 

and noted his rib as the reason. Randy Snyder, the plant supervisor, and Linda Nichols, the human resources assistant, 

listened to that voicemail. A recording of that voicemail is not 

in the record; instead, Nichols’s transcription of the voicemail 

(and Rhonda’s testimony of the contents of the voicemail) are 

the only record evidence. Rhonda testified she also spoke to 

Nichols directly about Phillips’s rib injury. But Nichols stated 

she did not recall being told any more about Phillips’s injury 

than what was reported in Phillips’s voicemail. Snyder testified he had also spoken to Rhonda about Phillips’s “chest” 

area. Rhonda stated that, in addition to speaking with Snyder 

directly on at least one occasion, she had called United six or 

seven times trying to get a hold of Snyder to further discuss 

Phillips’s injury, but she was never able to connect with him. 
No. 19-1579 11

An employee merely calling in and declaring he is sick is 

insufficient to put the employer on notice that the employee 

may qualify for FMLA leave. See Burnett v. LFW Inc., 472 F.3d 

471, 480 (7th Cir. 2006). But “[t]he employee’s notice obligation is satisfied so long as he provides information sufficient 

to show that he likely has an FMLA-qualifying condition.” Id. 

at 479. In Aubuchon v. Knauf Fiberglass GmbH, 359 F.3d 950, 953 

(7th Cir. 2004), we ruled that an employee must communicate 

the reason for seeking leave, and not merely request FMLA 

leave. We concluded that providing a doctor’s note that the 

employee’s wife suffered “complications” during labor—

without any additional details—would have sufficed to alert 

the employer that the employee may have been entitled to 

FMLA leave and would have been enough to trigger the employer’s duty to request additional information to confirm the 

employee’s entitlement. Id. Similarly, in Righi, we held that an 

employee’s email mentioning his mother’s diabetic coma was 

sufficient to alert the company that he may have qualified for 

FMLA leave. See Righi, 632 F.3d at 409.

The type of injury Phillips suffered, and the likelihood it 

would qualify for FMLA leave, falls somewhere on the spectrum between a “diabetic coma,” see Righi, 632 F.3d at 409 

(sufficient notice given when email mentioned mother was in 

diabetic coma), and merely reporting a “twisted knee.” See 

Walton v. Ford Motor Co., 424 F.3d 481, 486–87 (6th Cir. 2005) 

(employee informing supervisor he had “twisted his knee” 

was not sufficient notice of need for FMLA leave). Phillips introduced evidence that Snyder and Nichols knew of his “rib” 

injury: the call-in log shows as much, and Snyder admitted he 

had also spoken with Rhonda about Phillips’s chest area. Further, neither Snyder nor Nichols appear to have received any 

specific certification or training on the FMLA. If United failed 
12 No. 19-1579

to train its key personnel on how to recognize FMLAqualifying leave, that may factor into deciding whether 

Phillips provided sufficient notice of his need for leave. Ultimately, in this case a jury must decide the factual question of 

whether the nature and amount of information the employee 

conveyed about his intent to seek leave put the employer on 

notice of that intent and required the employer to notify the

employee whether the leave would be designated as FMLA 

leave. We do not reach a conclusion on this issue, however. 

We merely note that, based on the evidence introduced at 

summary judgment and construed in the light most favorable 

to Phillips, we agree with the district court that there are genuine issues of material fact as to whether United had sufficient 

notice that Phillips intended to take leave. See 29 C.F.R. 

§§ 825.303(b); 825.301(b); Pagel v. TIN Inc., 695 F.3d 622, 628 

(7th Cir. 2012) (for jury to decide whether employee informing manager about chest pain and appointments, coupled 

with manager admitting he was aware of employee’s chest 

pain and had been told employee would be in hospital, constituted sufficient notice). At minimum, the evidence demonstrates a genuine dispute of fact as to whether United should 

have inquired further into Phillips’s injury. See § 825.301(a).

4. The District Court’s Reliance on Righi

Once an employer has enough information to determine 

an employee is seeking FMLA-qualifying leave, the employer 

needs to notify the employee whether the requested leave will 

be designated as FMLA leave within five business days, absent extenuating circumstances. 29 C.F.R. §§ 825.301(a); 

825.300(d). It is undisputed United failed to determine and 

notify Phillips whether his request for leave would be designated as FMLA leave. Thus, United could have violated the 
No. 19-1579 13

FMLA by not informing Phillips of his FMLA-leave designation.

But it is also true Phillips stopped following United’s attendance policy and failed to call in to report his absences. 

And if an employee does not comply with the employer’s 

usual leave-request requirements, FMLA leave may be delayed or denied. 29 C.F.R. § 825.303(c); see also Righi, 632 F.3d 

at 411. So Phillips also may have failed to abide by the FMLA

regulations.

Even if Phillips failed to comply with the FMLA by failing 

to report his absences, he did so after United would have violated the FMLA. Phillips stopped calling in to work at least 

nine business days after he first reported his rib injury to 

United.2 Under the regulations, United had five business days 

after receiving notice of Phillips’s rib injury to determine 

whether he qualified for FMLA leave. 29 C.F.R. §§ 825.301(a); 

825.300(d).

Rather than consider this interplay, the district court focused solely on Phillips’s conduct and, applying Righi, ruled 

that Phillips’s failure to follow United’s attendance policies 

foreclosed his claim.3 See Righi, 632 F.3d at 411; 29 C.F.R. 

§ 825.303(c). The FMLA regulations state, and Righi provides, 

that an employee’s failure to abide by an employer’s usual attendance policies may foreclose an FMLA claim. 29 C.F.R. 

§ 825.303(c); Righi, 632 F.3d at 411. But not controlled by the 

2 Phillips first reported his rib injury to United on July 6 and stopped 

calling in to report his absences on July 20. (Call Log, Doc. 35-2, at 42; 

United’s Mot. for Summ. J., Doc. 34, at 9.)

3 We do not fault the district court for this, however, as the parties’ 

briefs were sparse on this issue.
14 No. 19-1579

regulations or Righi is whether an employer’s preceding violation of the FMLA is excused by an employee’s subsequent 

failure to comply with the regulations. That fact pattern is 

squarely presented here; that was not the case in Righi, 

though, where the employee had not provided adequate notice of his injury and the employer did not otherwise violate 

the FMLA (such as by failing to inform the employee of his 

FMLA-qualifying leave). See id. To us, this presents an issue 

which merits further examination in the district court. On remand, the district court should examine whether Righi extends to this situation.4 It may choose to do so by ordering 

supplemental briefing on this issue and reconsidering or inviting new summary judgment briefing. See, e.g., Raybourne v. 

Cigna Life Ins. Co., 576 F.3d 444, 450 (7th Cir. 2009) (remand 

appropriate for district court to analyze material issue in first 

instance).

5. Was Phillips Injured from United’s Violation?

If the district court concludes Righi does not extend so far 

as to absolve an employer from violating the FMLA if an employee at some point also fails to comply with the FMLA, the 

next question is whether United’s failure to determine 

4 A hypothetical may place this issue into sharper focus: Say Phillips 

had continued to report his absences to United for one month (instead of 

the two weeks he did), but United never notified him of his rights under 

the FMLA. Then after that month Phillips did not report absences for three 

consecutive days and United fired him for failing to follow its policies. 

Would United escape responsibility under the FMLA for taking advantage of Phillips’s misstep? United’s argument could be so read, given 

its heavy reliance on Righi’s holding that “an employee’s failure to comply 

with his employer’s internal leave policies and procedures is a sufficient 

ground for termination and forecloses an FMLA claim.” Righi, 632 F.3d at 

411.
No. 19-1579 15

whether Phillips’s leave request counted as FMLA-qualifying 

interfered with Phillips’s FMLA rights. See 29 C.F.R. 

§ 825.300(e). Phillips cannot prevent summary judgment by 

creating a fact question over United’s lack of compliance with 

the FMLA—he must show he was injured by United’s violation. See § 825.301(e). Violation of the FMLA is not enough to 

establish injury; instead, Phillips must show he was prejudiced by United’s violation. See Ragsdale v. Wolverine World 

Wide, Inc., 535 U.S. 81, 89 (2002) (explaining that FMLA “provides no relief unless the employee has been prejudiced by 

the violation”); Ridings v. Riverside Med. Ctr., 537 F.3d 755, 764 

(7th Cir. 2008) (holding no interference because employee did 

not allege that employer’s failure to provide FMLA information prejudiced her). 

This court has not specifically addressed what constitutes 

“prejudice” arising out of an employer’s failure to provide 

FMLA information. See Ridings, 537 F.3d at 766 (“Certainly, if 

[the plaintiff] had presented any evidence that the use of the 

term ‘intermittent’ had in any way influenced her decision not 

to turn in the FMLA forms, we would consider that fact and 

the reasonable inferences drawn therefrom in favor of [the 

plaintiff].”); Darst v. Interstate Brands Corp., 512 F.3d 903, 910 

(7th Cir. 2008) (“But even if [employer] was obliged to advise 

[employee] that his certification was incomplete, there was no 

harm caused by [employer’s] breach of this obligation unless 

[employee] would have been able to cure the deficiency in a 

manner that entitled him to FMLA leave.”).

A recent opinion of the Fourth Circuit provides some 

guidance: “Prejudice may be gleaned from evidence that had 

the plaintiff received the required (but omitted) information 

regarding his FMLA rights, he would have structured his 
16 No. 19-1579

leave differently.” Vannoy v. Fed. Res. Bank of Richmond, 827 

F.3d 296, 302 (4th Cir. 2016) (citing cases). The First, Third, and 

Fifth Circuits have reached similar conclusions. See Bellone v. 

Southwick-Tolland Reg’l Sch. Dist., 748 F.3d 418, 423 (1st Cir. 

2014); Lupyan v. Corinthian Colleges Inc., 761 F.3d 314, 318–19 

(3d Cir. 2014); Downey v. Strain, 510 F.3d 534, 541 (5th Cir. 

2007). Indeed, the regulations state an injury occurs when an 

employee would have structured his leave differently had the 

employer properly designated the requested leave as being 

taken under the FMLA. See 29 C.F.R. § 825.301(e). Thus, if 

Phillips can show prejudice—in other words, that he would 

have structured his leave differently had he received the 

proper information, see Ragsdale, 535 U.S. at 90—his claim 

may survive summary judgment. 

The district court here did not address whether Phillips 

was prejudiced, so it should consider that matter on remand. 

Rhonda attested had Phillips known United offered FMLA 

leave, he would have taken the leave. Other than that statement the record is undeveloped and does not reflect whether 

Phillips would have acted differently (i.e., whether he would 

have sought leave under the FMLA) had United provided 

him with the requisite information. Compare Bellone, 748 F.3d 

at 423 (ruling that plaintiff failed to demonstrate that he 

would have structured leave differently if defendant had 

given him proper notice), with Hannah P. v. Coats, 916 F.3d 

327, 347 (4th Cir. 2019) (“Here, the record contains evidence 

that if [the plaintiff] had known that the FMLA protected her 

position, she would have used only sick leave for her leave of 

absence.”), and Wallace v. FedEx Corp., 764 F.3d 571, 591 (6th

Cir. 2014) (“FedEx’s failure to provide notice was the proximate cause of [plaintiff’s] termination, meaning that its failure 

to comply with the regulations prejudiced [her].”). 
No. 19-1579 17

B. Retaliation

Phillips’s challenge to the district court’s ruling on retaliation is poorly developed and he does not address the district 

court’s reasoning. He asserts because United interfered with 

his rights under the FMLA, United also retaliated against him 

by firing him for seeking FMLA benefits. 

Even if we assume Phillips engaged in a protected activity 

and United took an adverse employment action against him, 

Phillips still failed to establish any causal connection between 

his alleged attempt to seek relief under the FMLA and his discharge. See Curtis, 807 F.3d at 220. The only evidence Phillips 

adduced is suspicious timing between his supposed request 

for FMLA leave and his firing, and suspicious timing by itself 

rarely is enough to overcome summary judgment. See id. at 

221; Daugherty v. Wabash Ctr., Inc., 577 F.3d 747, 751 (7th Cir.

2009). Nor does Phillips attempt to dispute United’s proffered 

reason for firing him: he did not show up to work and he 

failed to report his absences. “Summary judgment for the employer is proper where the employer provides undisputed evidence that the adverse employment action is based upon the 

employee’s poor job performance.” Curtis, 807 F.3d at 221. 

The district court thus properly entered judgment in favor of 

United on Phillips’s retaliation claim.

III. Conclusion

For these reasons, we AFFIRM IN PART the district court’s 

judgment on Phillips’s retaliation claim and REMAND IN 

PART Phillips’s interference claim for further proceedings 

consistent with this order.