NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a1260n.06 No. 12-3305 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T CYNTHI A COX-F RI ETCH, Plaintiff-Appellant,

v. OHI O B UREAU OF WORKERS ’ COMPENSATI ON; PATRI CI A HARRI S, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUT HERN DI STRI CT OF OH I O

BEF ORE: MARTI

N and B OGGS, Circuit J udg es; COL L I ER, District J udg e. *

PER CURI AM. Cy

nthia Cox -F rietch appea ls a district court judgme nt dismiss ing her civil action alleg ing violations of the Family and Medica l L eave Act (F ML A), 29 U.S.C. § 2601 et seq. Cox -F rietch beg an working for the Ohio Bur eau of Workers’ Compensation in 1990. Fr om 2004, until her terminati o n i n April 2010, Cox -F rietch worke d as an employ er manag ement supervisor. Cox -F rietch’ s termination followed over two y ear s of documented p er fo rm ance issues, beg inning with her October 2007 annual perf ormanc e evaluation. Cox -F rietch’ s supervisor, Steve Dy er, g ave her an overa ll rating of “satisfa ctory ,” but noted that she was “below targ et” on two g oals:

The Honora

ble Curtis L

. Colli er, United States District J udg e for th e E as t er n District of * Tenne ssee, sitting by

desig nation.No. 12-3305

Cox-Frietch v . Ohio Bureau of W orkers Comp. 1) co n d u ct i n g at least one field visit eac h quarte r with eac h of the employ ees she supervised and 2) assist ing her staff t o meet their w ork expectations ea ch quar ter. Cox -F rietch’ s new supervisor, Patricia Harris, evaluated her as “below targ et” in the s ame two are as i n her October 2 0 0 8 annual perf orm an ce evaluation. As a result of that evaluation, Cox -F rietch rec eived an overa ll rating of “unsatisfa ctory ,” was denied a pay incre ase, and was place d on a perf ormanc e-improve ment plan. Also in October 2 0 0 8 , C o x -F rietch rec eived a verba l repr imand from Har ris for “fa ilure of g ood behavior ” base d on her ha ndling of an employ ee’ s conduct. I n J anuar y 2009, Don Urba

nsok, an employ ee supervised by Cox -F rietch, filed an int erna l Equal Employ

ment Opportunity

(EEO) complaint ag ainst her, claiming ag e discrimination. Afte r

an investiga

ti o n , E E O M a

n a g e r Sh e r i F itzp a

trick conclude d that there was no evidenc e substantiating Urba nsok’s alleg ations of ag e discrimination, but that there was evidenc e that C o x -F rietch acte d inconsistently in plac i n g employ ees on action plans. On Fe bruar y 13, 2009, and Marc h 2, 2009, F itzp a tric k r e mi n d e d Co x- F rietch about monitoring employ ee perf ormanc e d e f

ic ie n c ie s a n d a p p ly in g policies equa lly

to all employ ees to a

void the appea

ranc e of f avoritism. I n a letter dated Marc h 24, 2009, the Bur eau notified Cox -F rietch that she was being issued

a three -day wo rki ng suspension for failing to comply with her perf ormanc e-improve ment plan, specific ally noting her failure to monitor and follow -u p wi t h h er s taff. On April 8, 2009, Cox

Fr ietch and H arr is signed a new pe rfor

mance improvement plan.

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Cox-Frietch v . Ohio Bureau of W orkers Comp.

I n Fe bruar

y and Marc h 2009, Cox -F rietch reque sted and was g rante d intermittent FMLA leave to car e for her seriously ill mother. Cox -F rietch’ s mother died on Marc h 25, 2 0 0 9

. Cox

Fr ietch used a

pproxi mately

seventy hours of F ML A leave

. The Bur eau’ s FML

A pol i cy requires employ ees to substitut e paid sick leave for unpaid FML A leave

. Cox -F rietch’s u s e o f FML A leave near ly depleted her sick-leave balanc e, but she continued to use her sick leave as it acc rued following the expiration of her FML A cer tification. On J une 5, 2009, Har

ris place d Co x -F ri et ch on Phy sician’s Ver ification status. Under the Bur eau’ s Phy sician’s Ver ification policy , an employ ee whose sick-leave balanc e f a ll s b e lo w twenty hours may be require d to submit a phy sician’s v erific ation for future absenc es due to illness or injury within three work i n g d ay s afte r the employ ee’ s return to work. The Phy sician’s Ver ification policy provides that an employ ee’ s failure to pr ovide a phy sician’s ve rification may result in disciplinary action. After she was place d on Phy sician’s Ver ification status, Cox -F rietch was reg ularly approve d for r equeste d sick leave

. I n a letter dated J uly 29, 2009, the Bur eau notified Cox -F rietch that she was being issued a five-da y working suspension for failing to adequately s u p ervise her staff, despite “re ceiving repe ated direc tion from the [Bure au’s] EEO Mana g er a nd y our immediate super

visor.” On J anuar y 20, 2010, Cox -F rietch called in sick and spoke with an employ ee. Cox -F rietch’ s absenc e was beca

use her son was sick. Although Cox -F rietch supplied a note from her own doctor’s appointment on the day

of her absenc e, she failed to provide a phy sician’s verification supporting

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Cox-Frietch v . Ohio Bureau of W orkers Comp.

her s o n ’s illness. Cox -F rietch was issued a five-da y fine for violating the Bur eau’ s Phy sician’s Ver ification policy

. On Marc h 3, 2 0 1 0 , Cox -F rietch was involved in a workplac e incident with a subordinate employ ee that esca lated into y elling. After an investigat i o n and a predisclipinar y meeting , the Bur eau terminated Cox -F ri et ch ’s employ ment eff ective April 19, 2010. The termination letter informed Cox -F riet ch t h at she had been found in violation of the provisions of the Bur eau’ s Dis ci p l i n ar y P olicy and Grid. The letter specific ally explained that, on Marc h 3, 2010, “you prec ipitated and/or participated in sever al differ ent incidents that wer e disruptive to the I nformation Manag ement work are a and/or Gover nor’s Hill Service Offic e. Your behavior was very inappropriate for [a] member of ma nag ement.” Cox -F rietch sub s eq u en t l y filed a complaint ag ainst the Bur eau and Har ris, in her officia l capa city , alleg ing that t h e d ef endants interfe red with her FML A rig hts in violation of 29 U.S.C. § 2615(a) (1), and retal i at ed aga i n st her for exercising her FML A rig hts in violation of 29 U.S.C. § 2615(a) (2). The district court subseque ntly g rante d summary

judgme nt to the defe ndants. We revie w the district court’s judgme nt de novo. Seege r v. Cincinnat i Bell Tel. Co. , 681 F.3d 274, 281 ( 6th Cir. 2012). Employ ers are prohibited from interfe ring with, restra ining, or denying the exercise of or the attempt to exercise any FMLA right. 2 9 U.S.C. § 2615(a) (1). To establish an int erf ere nce claim, Cox -F rietch must demonstrate that: 1) she is an elig ible employ ee under the FML A; 2) the Bur eau is an employ er under the FML A; 3) she was enti tled to leave under the FML A; 4) she g ave the

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Cox-Frietch v . Ohio Bureau of W orkers Comp.

Bur eau notice of her intent to take leave ; and 5) the Bur eau denied her FML A benef its to which she

was e ntitled. Cavin v. Honda of Am. M fg., Inc ., 346 F.3d 713, 719 ( 6th Cir. 2003). The district court held that Cox -F rietch failed to establish the f if th element of her interfe renc e claim. Cox -F rietch a cknowledg ed in her deposition that she was ne ither denie d the us e of FML A leave , nor dissuaded fro m u s i n g FM L A leave during Fe bruar y and Marc h 2009 to car e for her mother. Cox -F rietch instead argues that the Bur eau interfe red with her FML A rig hts by placing her

on Phy sician’s Ver ification status based on her low sick-leave balanc e, which had been depleted due to her use of

FML A leave

. The FMLA specific ally allows an employ er to require an employ ee to substitut e acc rued paid sick leave for unpaid FMLA leave

. 29 U.S.C. § 2612(d) (2)( B) ; 29 C.F.R. § 825.207( a). When a n employ ee substitut es acc rued paid sick leave for unpaid FML A leave , an employ er may require the employ ee to adher e to neutra l policies g overning the use of paid sic k l ea v e. See 29 C.F.R. § 825.207(a)

. The Bur eau’ s Phy sician’s Ver ification policy require s an employ ee to submit a phy sician’s verific ation for future absenc es due to illness or injury within thre e working day s afte r the employ ee’ s return to work and provides that an employ ee’ s failure to submit a phy sician’s verific ation may result in disciplinary action. This policy does not conflict with the FML A. Fur ther the medica l cer

tification for le ave is a lso appropriate. See 29 C.F.R. §§ 825.305, 825.313. The FMLA also provides that “employ ers cannot use the taking of FML A leave as a neg ative fac tor in employ

ment actions, such as hiring , p ro m o t i o n s or disciplinary actions.” 29 C.F.R. § 825.220(c)

. Cox -F rietch contends that the Bur eau’ s acknow ledg ment that her use of FML A leave

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Cox-Frietch v . Ohio Bureau of W orkers Comp.

cause d her to be place d on Phy sician’s Ver ification status constitutes direc t evidenc e that the Bur eau used her FMLA leave as a neg ative fac tor in f ining and eve ntually

terminating her. Cox-Frietc h’s five-da y fine wa s n o t for “excessive absente eism.” Rather, the fine was for failing to submit a phy sician’s ve rifica

tion in accor dance with the Bur eau’ s Phy sician’s Ve rification policy

. Absent direc t evidenc e, Cox -F rietch’ s reta liation claim is analy zed under the burden- shif

ti n g framework set forth in McD onnell Douglas Corp. v. Gr ee n , 411 U.S. 792, 802–04 (1973). See Brys o n v. R egis Corp ., 498 F.3d 561, 570 (6th Cir. 2007). To establish a prima fac ie case of reta liation under the FMLA, Cox -F rietch must demonstrate that: 1) she eng ag ed in activity protec ted under the FML

A; 2) the Bur eau knew that she was exercising her FML A rig hts; 3) she suffe red an adver se employ

ment action; and 4) a causa l connec tion exis ted betwee n the protec ted FML A a c ti v it y and the adver se employ

ment action. See Seege r , 681 F.3d at 283. The district court held that Cox

Fr ietch failed to pr oduce any signific ant evidenc e of a causa l link betwee n her use of FML A leave and her subsequent suspension, fine, and termination. Cox -F rietch points to the temporal proxi mity betwee n her and her counsel’s asser tion of FML A conce rns and the adver se employ ment actions, but there is no evidenc e sug g esting that she was disciplined or terminate d for voicing those conce rns. See D ixon v. Gonzale

s , 481 F.3d 324, 333–34 ( 6th Cir. 2007). Even assuming that Cox -F rietch demonstrated a prima fac ie case of FML A reta liation, she fa i l ed t o show that the defe ndants’ leg itimate, nondiscriminatory rea sons for her discipline and eventua l termination wer e prete x tual. Cox -F ri et ch ’s documented perf ormanc e issues beg an well befor e she used FMLA leave

. See Caniti a v. Y ellow Freight Sys., Inc ., 903 F.2d 1064, 1067 (6th Cir.

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Cox-Frietch v . Ohio Bureau of W orkers Comp. 1990). The temporal proxi mity betwee n her asser t i o n o f FML

A conce rns and the adver se employ ment actions alone is insufficient to establish prete x t. S ee S krj anc v. Great Lakes Power Serv. Co. , 272 F.3d 309, 317 ( 6th Cir. 2001). The district cour

t’s judgme nt is affirmed.

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