RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0401p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

TERRY D. WALTON,

Plaintiff-Appellant,

v.

FORD MOTOR COMPANY; VISTEON CORPORATION,

Jointly and Severally,

Defendants-Appellees.

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No. 04-1471

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 02-72979—Robert H. Cleland, District Judge.

Argued: July 20, 2005

Decided and Filed: September 28, 2005 

Before: BOGGS, Chief Judge; BATCHELDER and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Maureen M. Crane, PITT, DOWTY, MCGEHEE, MIRER & PALMER, Royal Oak,

Michigan, for Appellant. John F. Birmingham, Jr., FOLEY & LARDNER, Detroit, Michigan, for

Appellees. ON BRIEF: Beth M. Rivers, Megan A. Bonanni, PITT, DOWTY, MCGEHEE, MIRER

& PALMER, Royal Oak, Michigan, for Appellant. John F. Birmingham, Jr., Jeffrey S. Kopp,

FOLEY & LARDNER, Detroit, Michigan, for Appellees.

_________________

OPINION _________________

ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Terry D. Walton appeals the

district court’s grant of summary judgment in favor of Defendant-Appellee Visteon Corporation

(“Visteon”) on Walton’s claim that Visteon interfered with his attempt to exercise his rights under

the Family Medical Leave Act of 1993 (“FMLA”) by terminating him in violation of 29 U.S.C.

§ 2615(a)(1). Because we find that no reasonable jury could conclude that Walton provided Visteon

with adequate notice of his intent to take leave for an FMLA-qualifying injury, we AFFIRM.

1
No. 04-1471 Walton, et al. v. Ford Motor Co., et al. Page 2

1

Ford Motor Company (“Ford”) transferred its assets located at the Milan Plant to Visteon in April 2000 and

Visteon was subsequently spun off as a separate corporation in June 2000. The parties therefore agreed that Visteon was

the proper party in interest and the district court accordingly dismissed Ford as a party to this suit.

I.

Walton was hired as an hourly assembler at the Milan Plant on October 5, 1992.1

 One year

later, Walton became a millwright in the maintenance department, a position he held until his

employment was terminated in May 2001. A millwright is a skilled tradesman responsible for

moving and assembling office furniture, operating heavy equipment, installing conveyor systems,

hanging signs, and performing general maintenance around the plant. At all relevant times, Walton

was also a member of Local 33, United Automobile, Aerospace and Agricultural Implement

Workers of America (“UAW”).

On April 18, 2001, Walton suffered a knee injury while working in his yard at home after

work. Following a briefing in his department on the morning of April 19, Walton informed his

supervisor, Pat Nolan, that he had twisted his knee the day before and that he intended to visit the

medical department to have his knee evaluated. During his visit to the medical department, the

Milan Plant’s nurse, Susan Kinnick, made a preliminary diagnosis of a sprain/strain to the left knee

and she gave Walton a cold compress, ibuprofen, and an elastic bandage. Walton neither requested

leave nor did he obtain leave of absence forms from the medical department.

Following his visit to the medical department, Walton returned to work for the remainder of

the morning. At around noon, he informed Nolan that he had scheduled a doctor’s appointment for

the afternoon of April 19. Nolan cleared Walton to leave for his appointment, and Walton went to

the office of Dr. Rex Figy. Dr. Figy examined Walton and gave him a note instructing him to

remain off work until he could be evaluated by Dr. Thomas Merritt, an orthopedic surgeon. Walton

did not return to work on April 19 or contact anybody at Visteon to inform them of his status.

On April 20, Walton called the Milan Plant’s security office and informed security that he

had visited the doctor and had been told to stay off work until he could see a specialist on April 24.

Security recorded Walton’s call in the Hourly Personnel Absence Call-In Log Sheet. The entry

indicates that the reason for Walton’s absence was that he was “sick” and that his expected date of

return was April 24. Floor supervisors and the labor relations department receive a periodic

distribution of the Hourly Personnel Absence Call-In Log Sheet, but Walton made no attempt to

contact directly his supervisor, the labor relations department, or the medical department to inform

them of the actual reason for his absence, and he did not provide anyone at Visteon with any medical

documentation supporting his absence.

At his appointment with Dr. Merritt on April 24, Walton was diagnosed with having torn the

superficial medial collateral ligament in his left knee. As a result, Dr. Merritt disabled Walton from

working until May 28. On April 25, Walton again contacted the Milan Plant’s security office and

informed security that he had attended his scheduled doctor’s appointment on April 24 and had been

told to stay off work for the next four weeks. The entry in the Hourly Personnel Absence Call-In

Log Sheet on this date also indicates that the reason for Walton’s absence was that he was “sick”

and that his expected date of return was May 28. Once again, Walton made no attempt to contact

his supervisor, the labor relations department, or the medical department, and he did not submit any

medical paperwork memorializing Dr. Merritt’s disability finding to Visteon.

Consequently, on April 27, Visteon sent Walton a letter by registered mail informing him

that he had five business days to contact Visteon’s labor relations department or his employment

would be terminated. Pursuant to Article VIII, Section 5 of the Collective Bargaining Agreement

governing Walton’s employment, such “5-day quit letters” provide that “[s]eniority shall be broken”
No. 04-1471 Walton, et al. v. Ford Motor Co., et al. Page 3

2

Walton also filed a grievance with his union on May 9, which was denied upon initial review and on appeal.

Ultimately, on January 2, 2002, the union withdrew the grievance. Walton subsequently filed a charge with the National

Labor Relations Board (“NLRB”), claiming that his union had not properly represented him in his grievance proceedings

against Visteon. The NLRB concluded that Walton’s union had acted properly.

if the “employee does not, within five (5) working days . . . after notice to report has been sent to

him/her, either report to work or give a satisfactory reason for his/her absence . . . provided at least

ten (10) working days have elapsed since his/her last day worked.” The notice provided: “If you

are unable to work because of illness or injury, and so report to the Employment Office within the

time stated above, you will be granted a sick leave of absence to cover the period of your disability

upon presenting satisfactory evidence thereof.”

Although Walton admits that he received a note from the post office notifying him of the

certified letter, he maintains that he did not receive the notice until May 8, the same day that he

actually retrieved the letter from the post office. Postal records confirm, however, that although

Walton did retrieve the 5-day quit letter from the post office on May 8, he was first notified by mail

on April 30 that a certified letter awaited him.

Meanwhile, on May 4, Visteon notified Walton’s union that Walton’s employment was

terminated because he had not provided evidence of a qualified leave for his absence between

April 20 and May 4, or responded to the 5-day quit notice. On May 9, one day after Walton claims

to have received the 5-day quit letter and five days after his termination, he contacted Visteon’s

labor relations department and he drove to the Milan Plant and gave a copy of the medical notes he

had received from his doctors to his UAW representative, Fred Probst, who eventually forwarded

the medical documentation to Visteon.2

 Probst also provided Walton with the medical certification

paperwork (Form 5166) required to support an approved medical leave while at the Milan Plant on

May 9. He then took these forms to the office of his personal physician, Dr. Mary Baldwin, to be

completed. The forms were completed and ready for Walton to pick up from Dr. Baldwin’s office

on May 15. Walton thereafter retrieved the forms and submitted them to Visteon on May 16, and

the documents were forwarded to medical department on May 17. Visteon nevertheless refused to

reinstate Walton.

Visteon’s internal procedures generally require that in order properly to request medical

leave an employee must notify the labor relations department within two business days of his initial

absence and then complete the requisite FMLA forms to be returned to the medical department.

Over the course of Walton’s employment with Ford and Visteon, the companies issued multiple

notices to employees at the Milan Plant that informed them how to obtain an FMLA leave. The

notices were posted on bulletin boards located in the medical office, outside the union benefits

office, and near the labor relations office. Visteon also posted and attached a bulletin to hourly

employees’ paychecks in July 2000 entitled “Family Medical Leave Act of 1993.” This particular

bulletin recited the proper procedures for requesting FMLA leave and it specifically stated, “Do not

request FMLA through security.” Because Walton had taken several prior medical leaves, for which

he had provided proper notice and submitted the medical certification forms properly, he was aware

of Visteon’s policy.

Walton nevertheless maintains that throughout his nine years of employment at the Milan

Plant it was standard procedure for hourly employees to contact the Milan Plant’s security office to

report absences for any reason. Several Visteon employees, however, explained that while it was

proper to call security to report an absence, the primary purpose of such a rule was to allow shift

managers to properly staff the assembly lines and related positions when an employee is calling in

for an unscheduled absence. Accordingly, two of Walton’s co-workers averred that they knew that

merely calling security was not sufficient to request or receive FMLA certification, and Walton

himself conceded that he knew security could not grant a medical leave of absence. Visteon’s
No. 04-1471 Walton, et al. v. Ford Motor Co., et al. Page 4

express prohibition against contacting security to request FMLA leave flows, in part, from the fact

that the security guards at the Milan Plant are not Visteon employees, but independent contractors

leased from a temporary agency, who are given no FMLA training.

II.

We turn now to Walton’s primary contention on appeal, which is that the district court erred

by granting Visteon’s motion for summary judgment. We review a district court’s grant of summary

judgment de novo. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc). Summary

judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). We view

the evidence, all facts, and any inferences that may be drawn from the facts in the light most

favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). Entry of summary judgment is appropriate “against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The FMLA entitles qualifying employees to up to twelve weeks of unpaid leave each year

if, among other things, an employee has a “serious health condition that makes the employee unable

to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). A “serious

health condition” is defined as “an illness, injury, impairment, or physical or mental condition that

involves– (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B)

continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). It is unlawful “for any

employer to interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided

under [the FMLA].” 29 U.S.C. § 2615(a)(1). Employers who violate § 2615 are “liable to any

eligible employee affected” for damages and appropriate equitable relief. 29 U.S.C. § 2617(a)(1).

Walton argues on appeal that Visteon interfered with his rights under the FMLA by refusing

to recognize his absence from April 20 to May 4 as FMLA-qualifying leave. To succeed on his

FMLA-interference claim, Walton must demonstrate that: (1) he was an eligible employee; (2) the

defendant was an employer as defined under the FMLA; (3) the employee was entitled to leave

under the FMLA; (4) the employee gave the employer notice of his intention to take leave; and (5)

the employer denied the employee FMLA benefits to which he was entitled. Cavin v. Honda of Am.

Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003). Because the first three factors are not in dispute, the

sole issue in this appeal is whether Walton provided adequate notice to Visteon of his need for

FMLA leave under the fourth prong of the Cavin analysis.

When the need for FMLA leave is unforeseeable, such as here, the pertinent regulations

require that

an employee should give notice to the employer of the need for FMLA leave as soon

as practicable under the facts and circumstances of the particular case. It is expected

that an employee will give notice to the employer within no more than one or two

working days of learning of the need for leave, except in extraordinary circumstances

where such notice is not feasible.

29 C.F.R. § 825.303(a). Visteon’s internal procedures require that in order to properly request

medical leave an employee “must notify Labor Relations within two business days of [his] absence,

or at least within 48 hours of [his] return to work,” and then complete the requisite FMLA forms to

be returned to the medical department within 15 days of receiving such forms. Visteon’s internal

procedures are therefore consistent with the FMLA’s timing requirements for unforeseeable leave.
No. 04-1471 Walton, et al. v. Ford Motor Co., et al. Page 5

It is not disputed that by merely calling the Milan Plant’s security office to inform Visteon

of his absence, Walton did not comply with Visteon’s internal policy for requesting and receiving

FMLA leave. Nevertheless, in Cavin, we discussed the provisions of the FMLA and the

accompanying regulations, and we held that “employers cannot deny FMLA leave on grounds that

an employee failed to comply with internal procedures–as long as ‘the employee gives timely verbal

or other notice.’” 346 F.3d at 722 (quoting 29 C.F.R. § 825.302(d)). Accordingly, because under

Cavin, Visteon could not terminate Walton simply for failing to comply with internal company

policy requiring that he notify the labor relations department of his absence, our focus turns to

whether by making two calls to the Milan Plant’s security office to report his absences Walton

provided Visteon with sufficient notice that he was invoking the protection of the FMLA. We

conclude that he did not.

“[T]o invoke the protection of the FMLA, an employee must provide notice and a qualifying

reason for requesting the leave.” Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th Cir. 1998). “The

critical question is whether the information imparted to the employer is sufficient to reasonably

apprise it of the employee’s request to take time off for a serious health condition.” Id. (internal

quotation marks omitted). While an “employee need not expressly assert rights under the FMLA

or even mention the FMLA,” 29 C.F.R. § 825.303(b), the employee must give “the employer enough

information for the employer to reasonably conclude that an event described in FMLA

§ [2612(a)(1)(D)] has occurred.” Hammon v. DHL Airways, Inc., 165 F.3d 441, 451 (6th Cir. 1999).

“[W]hat is practicable, both in terms of the timing of the notice and its content, will depend upon

the facts and circumstances of each individual case.” Cavin, 346 F.3d at 724 (quoting Manuel v.

Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995)).

Under the facts of this case, Walton cannot carry his burden of establishing that he imparted

sufficient notice to Visteon to apprise it of his need to take leave for an FMLA-qualifying injury.

On April 19, 2001, Walton informed his supervisor, Pat Nolan, that he had “twisted his knee” and

that he planned to get his knee evaluated at the Milan Plant’s medical department. During his visit

to the medical department, he never indicated that he would need time off and he did not request

FMLA certification forms. After receiving an ice pack and ibuprofen from Nurse Kinnick, Walton

then returned to work. While Walton informed Nolan later that he had scheduled a doctor’s

appointment for the afternoon of April 19, he never requested leave as a follow up to that

conversation. Based on these facts, Walton’s supervisor did not have sufficient notice as of April

19 that Walton had suffered a “serious health condition” requiring FMLA leave.

Walton admits that prior to his termination the only other contact he had with Visteon

regarding his absence was through his calls to security on April 20 and April 25. These contacts

were likewise insufficient to impart notice to Visteon that Walton required FMLA leave. It is

undisputed that Walton never made any attempt to contact his supervisor, the labor relations

department or the medical department between April 19 and May 9, he failed to respond to a 5-day

quit letter, and he did not submit any medical paperwork until nearly two weeks after he was

terminated. Importantly, the entries in the Hourly Personnel Absence Call-In Log Sheet on both

April 20 and April 25 indicate that the reason for Walton’s absence was that he was “sick.” In fact,

the record reveals that, at least on April 20, Walton specifically told security to list him as taking

a “sick day.” The district court properly concluded that even if the Hourly Personnel Absence CallIn Log Sheet was forwarded to Walton’s supervisor and the labor relations department, the

information contained in the log was not sufficient to impart notice to Visteon that Walton required

FMLA leave. Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001) (“Sick” does not

imply “a serious health condition”.); see also Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973,

981-82 (5th Cir. 1998) (same).

We recognize that under the applicable regulations “[t]he employee need not expressly assert

rights under the FMLA or even mention the FMLA, but may only state that leave is needed. The
No. 04-1471 Walton, et al. v. Ford Motor Co., et al. Page 6

employer will be expected to obtain any additional required information through informal means.”

29 C.F.R. § 825.303(b). But we find that by sending Walton a 5-day quit letter by registered mail

on April 27, Visteon complied with the FMLA regulations. The letter specifically provided: “If you

are unable to work because of illness or injury, and so report to the Employment Office within the

time stated above, you will be granted a sick leave of absence to cover the period of your disability

upon presenting satisfactory evidence thereof.” Postal records show that Walton received notice of

the letter on April 30, but that he chose to ignore Visteon’s inquiry until after he was terminated.

The regulation requires that an employer may sometimes need to seek additional information

concerning an absent employee’s condition; it does not seek to punish the employer when the

employee fails to respond to such an inquiry.

Walton relies on our decision in Cavin to support his argument that his calls to security were

sufficient to notify Visteon of the seriousness of his medical condition. In fact, Walton argues that

the facts in Cavin are indistinguishable from the facts of this case. In Cavin, we concluded that the

fact that the plaintiff informed Honda’s security department (rather than complying with internal

company policy by notifying the Leave Coordination Department) that he had been in a motorcycle

accident which required hospitalization and that he would be unable to perform his job because of

the injuries he sustained was sufficient as a matter of law to impart notice to Honda of an FMLAqualifying decision and we reversed the district court’s entry of summary judgment in favor of

Honda on the plaintiff’s FMLA-interference claim. Cavin, 346 F.3d at 725, 727. Because we find

the facts of Cavin to be distinguishable from the facts of this case, we find Walton’s reliance on

Cavin to be unavailing.

First, Visteon’s policies differ from Honda’s policies in one very important respect. Visteon

explicitly informed its employees, “Do not request FMLA through security.” Visteon posted this

warning throughout the Milan Plant and also in a July 2000 bulletin entitled “Family Medical Leave

Act of 1993” which was attached to hourly employees’ paychecks. Walton’s claim that he was

unaware of this requirement is belied by record. He conceded during his deposition that he knew

security could not grant a leave of absence. We have, in any event, held that the “FMLA does not

require [employers] to foresee that [an employee] would not have read the many notices that it had

sent regarding the FMLA’s coverage . . . .” Brenneman v. MedCentral Health System, 366 F.3d 412,

425 (6th Cir. 2004). In contrast to the plaintiff in Cavin, therefore, Walton knowingly and

repeatedly violated Visteon’s express prohibition against requesting FMLA leave through the Milan

Plant’s security office.

Second, the Cavin court recognized that although it was not faced with such a situation, a

situation could arise, such as here, in which “there may be a question of whether or not an employee

gave notice to his employer.” Cavin, 346 F.3d at 725 (emphasis in original). Unlike in Cavin, it is

undisputed that the security guards working at the Milan Plant were not Visteon employees, but

independent contractors. Visteon explicitly prohibited its employees from requesting FMLA

through security, in part, because the security guards working at the Milan Plant were independent

contractors who were given no FMLA training. Clearly then, Walton never informed his employer

of the reason for his absence until after his employment had already been terminated. See Brohm, 149 F.3d at 523 (noting that an employee who was terminated before he requested relief under the

FMLA from his employer could not establish a claim under the statute). And while the Cavin court

noted that “[e]ven if notice to security did not constitute notice to Honda, we would conclude that

Honda had actual notice of Cavin’s potential need for leave” because Cavin’s supervisor had actual

knowledge of his condition, Cavin, 346 F.3d at 725 n.8, Walton’s supervisor had no actual

knowledge of the seriousness of his condition.

In sum, if the key question is whether the employee has given his employer sufficient

information for the employer to reasonably conclude that an event described in the FMLA has

occurred–as we believe it is and as Cavin concedes–then the answer here must be that Walton did
No. 04-1471 Walton, et al. v. Ford Motor Co., et al. Page 7

not. This case is distinguishable from Cavin on its facts because, unlike the plaintiff in Cavin, Walton never explained the extent of the problem for which he was missing work, but instead

merely said he had been told to stay off work. Moreover, not only did Walton not comply with

Visteon’s requirements for reporting the need for FMLA leave, he did exactly what the company

required that he not do: he called security to request FMLA leave. Security at Visteon’s Milan

Plant was not the employer, but an independent contractor. And there is no evidence that the

employer, Visteon, ever received actual notice that Walton’s knee problem was a “qualifying reason

for requesting the leave,” Brohm, 149 F.3d at 523, i.e., there is no evidence that the employer had

notice that Walton’s problem was a “serious health condition” as defined in 29 U.S.C. § 2611(11)

and referenced in 29 U.S.C. § 2612(a)(1)(D).

III.

For the foregoing reasons, we AFFIRM the judgment of the district court granting summary

judgment in favor of Visteon on Walton’s FMLA-interference claim.