NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0787n.06 No. 10-3842 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
J AMIL . COFF MAN, P laintif f-App ellant,

v. FORD MOT OR COMPANY, Defendan t-Appellee.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUT HERN DI STRI CT OF OH I O
O P I N I O N

Before: M ARTIN, MOORE, and COO K, C ircuit Judges. KA REN NE LSO N MOORE , Circuit Ju dge. Plaintiff-Appellant J ami L
. Coffman filed suit in 2008 ag ainst her former employ er, Def endant- Appellee For d M o tor Company (“F ord”) , alleg ing that For d unlawfully reta liated ag ainst her afte r she soug ht to exercise her rig hts under the Family and Medica l L eave Act (the “F ML A”). Finding both that Coffman’s evidenc e failed to establish that For d’s re ason for her te rmination was pretextual and that Coffman did not show the willfulness require d to bring her claim within the applicable statute of limit ations, the district court g rante d For d summary j u d gm en t. We AF F IRM on the g round that Coffman fell short of demonstrating a materia l issue of fac t on the merits of her reta liation claim. Be cause we decide the

case on prete x t gr ounds, we do not addr ess Coffman’ s statute-of- limit ations arg ument.No. 10-3842

Coffman v. Ford Motor Company
I. BACKG ROUND & P ROCEDURE Coffman beg an working as a manufa cturing technicia n at For d’s Sharonville, Ohio transmission plant in J uly 1999. I n 2001, she beca me a quality coordina tor, a position that she held until her termination in J uly 2005. Coffman was also a member of the United Auto Workers, L ocal 863 (“U nion”). I n late 2004, Coffman beg an fre quently missing work day s and reque sting l eave throug h For d’s medical depar tment (the “Plant Hospital”). Although Coffman proper ly supported her absenc es on many of those dates—fr om 2004 to 2005 For d approve d eig hty -six work day s (688 hours) of medical leave—F ord cited at l east ten pe riods for whic h Coffman did not submit timely documentation. Those ten occur renc es resulted in prog ressive disciplinar y a c tion, which culminated in Coffman’s ter

mination shortly

afte r she wa s diag nosed with obstructive slee p apnea . For d employ ees wer e elig ible for leave under both the FML A and the company ’s collective barg aining ag ree ment (“CB A”)

. Upon reque sting leave , employ ees would rec eive two documents:

a For m 5166, which was to be completed by the trea ting phy sician, and an FML A notice stating that: [i ]f y our leave reque st is based on y our own or an elig ible family member’ s serious h e a lt h condition y ou must complete and return appropr iate medical cer tifica ti o n ( e . g . , For m 5166, 5166B or 5166E), for the initial leave or an extension, within 15 cale ndar day s of the Company ’s written reque st. This notice is the Company ’s written reque st for this cer

tification. I f y ou fail to return the completed cer tification within 15 cale ndar day s, the Company may delay commence ment of y our FML A leave until the cer tification is submitt ed, y ou may be classified as absent without leave , and y ou may not have a

ny rig hts unde r F ML A for the portion of the abse nce or leave befor e y ou do return a completed cer tification. I n addition, y ou may lose y ou r ri gh t s under FML A altog ether

and be subje ct to termination.

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Coffman v. Ford Motor Company
R. 18-4 (De f.’s Mot. f

or Summ. J
. Ex
. 4). At that time, a Plant Hospital staff member would also 1 indicate on the Form 5166 whether the requesting employ ee was eligible for FML A leave . To do this, the s taff member would chec k computer recor ds to ensur e that the employ ee had worked the requisite 1,250 hours during the previous twelve months and that the employ ee had not alre ady used her 480-hour allotment of FML A leave

. See 29 U.S.C. § 2611(2) (def ining “[e]li g ible employ ee” ). For d’s policies wer e clea r that failure to provid e t i m ely justification would result in an emp loy ee being desig nated absent without leave (“A WOL ”). I f an employ ee was AWOL three times in three months, the company would beg in instit uting prog ressive discipline. The discipline policy imposed penalties rang ing from unpaid suspension at the time of the employ ee’ s disciplinary hear ing for the first set of occur

renc es to termination upon the tenth occur renc e. An employ ee with multipl e
occur renc es leading up to a disciplinary hear ing would rec eive a separ ate penalty for eac h infrac tion. For d terminated Coffman on J uly 25, 2005 for repe ated absenteei sm resulting from ten AWOL occur

renc es in an eig ht-month period. Coffman filed this action alleg ing FML A reta liation

on J uly 23, 2008. Acc ording to Coffman, some of those occur renc es wer e FML A protec ted beca use a jury could deter

mine both that she had submitted appropr iate docume ntation and that her Marc h and J une absenc es constituted intermittent leave rela ted to her diag nosis of obstructive sleep apnea

The CBA simil arly provided that “[a]n employ ee who is una ble to w ork bec ause of

injury 1 or illness, and who furnishes satisfac tory evidenc e there of, shall be g rante d an automatic sick leave of absenc e cover ing t h e period of such disability .” R. 39-1 (Supp. I nfo. Ex
. A). L ong standing company proce dure mandated that an employ ee who took CBA leave submit supporting documents within five day s of his or her return, though the prese nce of “ext en uating circ umstances” could justify a two-to-thr ee- day

g rac e per iod. R. 18-3 (Snell Aff. ¶ 6)

.

3No. 10-3842

Coffman v. Ford Motor Company
in the summer of 2005. For d filed a motion for summary judgme nt, which the district court g rante d

on two g rounds. First, the district court he ld that although Coff man had e stablished a prima f acie

case of reta liation, she failed to rebut For d’s nondiscriminatory explanation for her d i s m i s s al. Coffman v. Ford Motor Co. , 719 F. Supp. 2d 856, 863, 867 (S.D. Ohio 2010). Second, the district court h el d that Coffman had not shown that For d acte d willfully , which rendere d her action timebarr ed under the tw o -y ear statute of limit ations for nonwillful FML A violations. Id. at 867–68. Coffman filed this timely appea l. II. ANALYSIS “We re view a district c ourt’s g rant of summar y judgme nt de novo and draw a ll reasona ble infere nces in favor of the nonmoving party .” Branham v. Gannett Satellite Info. Network, Inc. , 619 F.3d 563, 568 (6th Cir. 2010). Summary judgme nt is war rante d when there is “no g enuine dispute

as to any materia l fac t” and “the movant is entitled to judgme nt as a matter of law.” F E D . R. C I V . P. 56(a)

. A g enuine disp ute exis ts “only when there is sufficie nt ‘evide nce on which the jury could

rea sonably find for the plaintiff.’” Skrjanc v. Great Lakes Power Serv. Co. , 272 F.3d 309, 314 (6th Cir. 2001) (quoting Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 252 (1986)). The FML A entit les elig ible employ ees to twelve we eks of lea ve per y ear for, among other things, “a serious hea lth condition that makes the employ ee unable to pe rfor m the functions of the position of such employ ee.” 29 U.S.C. § 2612 (a) (1)( D). Employ ers are prohibited from reta liating 2
A “serious health condition” is define d in rele vant part as “an illness, injury , impairment, 2 or phy sical or mental conditi on that involves . . . continuing tre atment by a hea lth care provider.” 29 U.S.C. § 2611(11). 4No. 10-3842

Coffman v. Ford Motor Company

or discriminating ag ainst an employ ee who exercises her rig hts under the Act. Id. § 2615(a) (2); see also 29 C.F.R. § 825.220(c) (2004) (prohibiting employ ers from “discriminating ag ainst employ ees 3 . . . who have used F ML A leave ”). Retaliation claims based on indirect evidenc e are subject to the McD onnell Douglas burdenshifting test. Skrjanc , 272 F.3d at 313 (citing McD onnell Douglas Corp. v. Gree n , 411 U.S. 792 (1973))

. Once Coffman presented a prima facie claim of re taliation, the burden shifte d to Ford to state a nondiscriminatory rea son for her termination. See id. at 315. The burden then shifted back to Coffman to demonstrate that For d’s explanation was mere prete x t for discrimination. See id. At that point, her burden was to produce “evide nce fr o m wh i ch a jury could rea sonably doubt the employ er’ s expl anation.” Chen v. Dow Chem. Co. , 580 F.3d 394, 400 n.4 ( 6th Cir. 2009). Be cause For d do es n o t co n test the district court’s conclusion that Coffman stated a prima fac ie case of reta liation, the only question on appea l is whether Coffman est ab l i s h ed that For d’s justification for terminating her was prete x tual. Coffman may establi s h p re t ex t by showing that For d’s proff

ere d rea sons “(1) have no basis in fac t; (2) did not actua lly motiv[ at]e the action; or (3)

wer e i n s u fficient to war

rant the action.” Staunch v. Continental Airlines, Inc. , 511 F.3d 625, 631 (6th Cir.), cert. de nied , 555 U.S. 883 (2008). “[R] etaliation claims turn on the employ er’ s motive fo r d i s ch ar g ing the plaintiff.” Bryson v. Regis Corp. , 498 F.3d 561, 572 (6th Cir. 2007). T h u s , Coffman must put forwa rd evidenc e that would allow a rea s o n ab l e fa ct-finder to conclude that

Un l ess otherwise noted, we apply the 2004 reg ulations that wer e in place at the t i m e o f 3 Coffman’s te rmination. 5No. 10-3842

Coffman v. Ford Motor Company
For d’s stated rea son for her termination “is not the true rea son and is simply a prete x t for unlawful reta liation.” Id. I n other words, she “must show that the sheer weig ht of the circ umstantial evidenc e of discriminat i o n makes it more likely than not that the employ er’ s explanation is a prete x t, or
cover up.” Abdulnour v. Campbell Soup S u p p l y C o . , 502 F.3d 496, 503 (6th Cir. 2007) (interna l quotation marks omitted). Coffman has not come forwa rd with fac ts to support such a conclusion. As discussed below,

we g ener ally ag ree with the district court’s evalua tion of Coffman’s absenc es, and, beca use she has prese nted no other fac ts to support a rea sonable juror’s conclusion that For d eng ag ed in intentional discrimination, we af

firm. A. THE DIS P UTED ABSE NCES 1. Novem ber 18–19 and Dece m ber 16–17, 2004 Coffman first disputes For d’s reliance on the November and Dec ember 16 occur renc es on the g round that For d did not cite them at her final disciplinary hear ing as absenc es that contributed to her termination. I n making this argument, howeve r, Coffman fails to mention the undisputed fac t that For d’s prog ressive discipline policy require d three occur renc es in a three -month period befor e
an employ ee would be subject to penalty

. Consist ent with that require ment, the disciplinary action repor t completed at the initial hearing mentioned all of t hese dates as just ify ing the initial adverse action. Thus, For d’s curr ent re l i ance on the November and Dec ember 16 occur renc es is fully consistent with its ear lier trea tment of Coffman’s conduct and provides no suppor t f or her alleg ations of pre text
. 6No. 10-3842

Coffman v. Ford Motor Company
Coffman’s challeng e to the underly ing fac tual bas es for the November and Dec ember

occur renc es also fails to raise any materia l dispute. Coffman neg lected to provide For d with support for her November absence s until Dec ember 16, rende ring the documentation untim ely under both the FML A and the CBA. Coffman’s Dec ember absenc es suffe red from a simil ar defic iency

. Even 4 if we assume, as C offman arg ues, t hat s he did ever y thing possibl e to return t h e appropriate forms afte r her J anuar

y 21, 2005 disciplinary hear ing, that does not chang e the fac t that she ag ain failed to justify her absenc es within t h e t ime period that would have entitled her to leave

. Cf. Coulter v. Deloitte Consulti ng L.L.C

. , 79 F. App’x 864, 868 (6th Cir. 2003) (unpublished opinion) (stating that “bar e denials” and “subjec t i v e b eliefs” are “an insufficient basis upon which to vacate summary judgme nt”). 2. Marc h 16–18 and Marc h 21–22, 2005 Coffman’s claim that For d improperly classified her as AWOL fo r t wo p er i ods in Marc h prese nts a closer question b u t also ultimately fails. Coffman argues that she timely cer tified her Marc h absenc es via two For m 5166s, which she submitted on April 1. Unlike the other absenc es, the issue her e is not timeliness, but i nstead c enter s on the validity of the doc umentation. Coffman submitt ed her paper work for the Marc h 16 to 22 absenc es on two separ ate forms,

eac h prese nted within hours of the other, and with one citing “anxiety due to medication adjustment”
Coffman’s argument that a nurse in the Plant Hospital found her “unfit for work,” Appellant 4 Br
. at 20 (citing R. 35 (Coffman Dep. Ex
. 19)), also fails to raise any materia l dispute, as Coffman failed to show

that the desig nation ref

lected a ny thing more than her request for leave

. That initial reque st did not eliminate her responsibility to provide timely documentar y support for her absenc es. See R. 38-1 (L in Supp. Decl. ¶ 4). 7No. 10-3842

Coffman v. Ford Motor Company
and the other citing “EEG & other testing [and] p et i t e mall [si c] seizures” as justification for her leave

. R. 35- 1 (Coffman Dep. Ex. 32–33). Neither form provide d any

additional medical f

acts to support the diag noses. After revie wing the documents, Dr. L in, who was responsible for evaluating the sufficie ncy of medical cer tifications, made an initial deter mination that the forms wer e medically insufficient to justify FML A leave

. His conclusion was based on two observa tions: (1) the diverg ent diag noses for the same period, which left him unab l e t o d i s ce rn “wha t medical condition (if any ) actua lly preve nted [C offman] from working from Marc h 16 throug h Marc h 22,” R. 39-2 (2d Supp. Dec l. of Dr. Chun-I J ohn L in ¶ 10); and (2) the obvious discrepa ncy betwee n the phy sician signatures on those ce rtifications and the signatures on pre vious certific ations. Coffman argues that in light of Dr. L in’s deter m i n at i o n, For d was obligated to reque st in writing the additional information neede d to support her reque st for medical leave befor e For d could issue a blanke t denial. Althoug h that obliga tion ex ists in m ost cases, it does not apply here

. The 2 0 0 4 v er s i o n of the regulations stated that “[t] he employ er shall advise an employ ee whene ver the employ er finds a cer tification incomplete , and provide the emp l o y ee a rea sonable opportunity

to cure any

such def iciency .” 29 C.F.R. § 825.305(d) (2004) ( emphasis adde d). Our 5

case s have consistently enfor ced this require ment, rea ffirming employ ers’ aff irmative duty to seek additional information when they have notice of an employ ee’ s potential need for FML A leave but

are fac ed with an incomplete medical cer tification. See, e.g. , Novak v. MetroHe alth Med. Ctr. , 503

Coffman asser

ts that the notice had to be in writing

. Unlike the curr ent regulation, the 2004 5 version conta ined no such re quirement. 8No. 10-3842

Coffman v. Ford Motor Company
F.3d 572, 579 (6th Cir. 2007); Sorrell v. Rinker Materials Corp. , 395 F.3d 332, 337 (6th Cir. 2005); Hoffman v. Prof’l Med Team , 394 F.3d 414, 418 (6th Cir. 2005). But incomplete cer tifications are distinguishable from invalid ones. See Verkade v. U.S. Postal Serv. , 378 F. App’x 567, 574 (6th Cir. 2010) (unpublished opinion). A valid ce rtification “must show that the e mploy ee’ s serious health condition makes her unable to perf orm job functions.” Hoffman , 394 F.3d at 419. Al t h o u gh

cer tifications that contain all require d information are presumptively valid, an employ er can rebut 6 the pre sumption of sufficienc y by demonstrating that a cer

tification is invalid, contradictory , or of an otherwise s uspicious nature
. No va k , 503 F.3d at 578. I f t he certification is invalid on its fac e, that in some case s may be enoug h for an employ er to deny FML A leave without eng ag ing in further inquiry

. Verkade , 378 F. App’ x at 574. Her e, when fac ed with contra dictory , questionable cer tifications, Dr. L in soug ht clar ification by asking Coffman to sign a document reque sting that her phy sician provide any medical rec ords perta ining to the dates in question. I n response to the reque st, Coffman’s phy sician provided a single document, which indicated only a Marc h 17, 2005 date of service , a chief complaint of depre ssion (not seizures), and a li st of m edications that actua l l y d i d n o t s u pport Coffman’s assertion t hat her presc riptions had rec ently chang ed. Thus, rathe r than supportin g the forms Coffman had alre ady submitt ed, the new information only cre ated new contra dictions. Under these circ umstances, we do

n o t t h ink For d had any further duty to seek information to support Coffman’s leave reque st. See
At a minimum , this includ e s “ ( 1 ) the date on which the serious health condition commence d; 6 (2) the probable duration of the condi t i o n ; [ and] (3) the appropr iate medical fac ts within the knowledg e of the health ca re pr ovider re g arding the condition.” 29 U.S.C. § 2613(b).

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Coffman v. Ford Motor Company
Novak , 503 F.3d a t 578; see also Culpepper v. BlueCross BlueShield of Tenn., Inc. , 321 F. App’x 491, 496–97 (6 t h C i r. 2009) (unpublished opi nion) (conc luding that a document “of questionable reliability ”—e.g ., lacking a date, devoid of detailed medic al explanations, and containing only the signature of a st aff member in t h e p h y s ician’s office—“ [di d] not constitute an acce ptable form of

cer tification of a se rious health condition under the FML A”)

. 7 3. June 8, 13, 15, and 17–20, 2005 Coffman’s final argument is that her J une absenc es should have been considere d intermittent FML A leave beca

use a jury could conclude those absenc es wer e based on t he same illness—her newly diag nosed sleep apnea —as the Marc h and April absenc es. As a result, Coffman argues, For d incorre ctly deter

mined that she had not worke d enoug h hours to be elig ible for FML A leave beca use the elig ibilit y deter

mination should have been made in Marc h rathe r than J une. Coffman, howeve r, provided no evidenc e to support any reque st for intermittent leave , let alone ev i d ence sug g esting For d g rante d it. Cf. 29 U.S.C. § 2612(b)( 1) (“L eave . . . shall not be t ak en by an employ ee intermittently

. . . un l es s t h e em ploy ee and the employ er of the employ ee ag ree otherwise.” ).

This is not to say that employ ers can g ener ally avo i d l i ab i l i ty by deeming employ ees’ 7 medical cer

tifications to be fac ially invalid. Employ ers fac ing questionable cer tifications have two pref era ble options: they can require the employ ee to obtain a second opinion from a differ ent provider at the employ er’ s expense or, afte r g ranting the employ ee an opportunity t o co rr ec t an y shortcoming s, they can obtain the employ ee’ s p ermission to clar ify or authenticate a questionable cer tification with the orig inal health-c are provider. 29 C.F.R. § 825.307(a) –(b) (2010); see also 29 U.S.C. § 2613(c)

. Although these measure s are discretionar y , see Sorrell , 395 F.3d at 337, utiliz ing them would avoid the fac tual disputes and questions of rea sonablene ss that conce ivably arise from an employ er’ s decision to classify an F ML A re quest as fa cially invalid without first working with the employ ee to r esolve a ny discrepa ncies. 10No. 10-3842

Coffman v. Ford Motor Company
Coffman’s elig ibilit y for FML A leave in Marc h there fore had no bear ing on her later elig ibilit y , and, beca use the evidenc e is clea

r that Coffman was ineligible for FML A leave in J une due to insufficient hours, t hese absence s do not support her retaliation claim. See Staunc h , 511 F.3d at 631 (holding that beca use the evidenc e was clea r that the plaintiff had not worke d the 1,250 hours require d to be an “e ligible e mploy ee,” her F ML A claims fa iled as a ma tter of law ). B. NO EVIDENCE OF DISCRIMIN ATORY INTENT I n addition to being unable to show a material d i s p u t e as to her individual AWOL

occur renc es, Coffman has prese nted no evidenc e to sug g est that For d harbor ed any discriminatory intent. See Bryson , 498 F.3d at 570 (obser ving that despite the shifting burdens of production, the plaintiff never relinquishes the “burde n of persua ding the trier of fac t that the defe ndant intentionally discriminated ag ainst the plaintiff” (empha sis a dded) (interna l quotation marks omitted)); see also Chen , 580 F.3d at 400 n.4 (“[A]t bottom, the question is alway s whether the employ er made up its stated rea son to conce al intentional discrimination.” (citing St. Mary’ s Honor Ctr. v. Hicks , 509 U.S. 502, 515 (1993) (“[A] rea son cannot be proved to be a ‘pre text for discrimination’ unless it is shown both that the rea son was false, and that discrimination was the rea l rea son.” (alter ation in orig inal)))

. To support her assertion t hat t he evidence demonstrates an ulterior m o t i v e o n For d’s part, Coffman points to manufa cture d incon s i s t en cies, but produce s no rea l evidentiar y support. Moreove r, our independe nt revie w of the rec ord actua lly cuts ag ainst Coffman’s argument that the AWOL occur

renc es wer e not the rea l rea son for her termination. Although far from dispositi ve, Coffman conce ded that no one so much as sug g ested that her termination was rela ted to her FML A
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Coffman v. Ford Motor Company
leave

. Nor does the re co rd s u gges t that any of her supervisors ever complained about any of the eig hty -six leg itimate leave day s s h e h ad taken. Finally , when it came to her unsubstantiated absenc es, the rec ord indicates that Fo rd t re at ed her no differ ently than any other employ ee who neg lected to submit timely cer tification. See R. 25 (Howa rd Dep. at 4 3

– 44) (indicating that Coffman’s Union repr esenta tive had no rea son to believe Fo rd trea ted Coffman less favor ably beca use she had taken medical leave and reiter ating that For d was strict with all of its employ ees in enfor cing its require ment that they submit cer tification for FML A or CBA leave in a “timely fashion”)

. Viewe d in its entirety , this evidenc e—and particula rly Coffman’s inability to point to any fac ts that could sug g est an alternative explanation for For d’s actions—simply does not support the proposition that For d’s asser ted rea son for terminating Coffman was prete x tual, and we cannot say that the district court e rre d in gr anting For d’s motion for summary judgme nt on the merits. III. CONCLUSION For the reasons discussed above, we conclud e t h at C o ffman failed to establish that For d’s

rea son for ter

minating he r wa s pretextual. There fore , we AF F IRM the district court’s judg ment.

12