IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANTHONY McCANTS, )

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO. 15-00027-CG-M

)

GREDE II, LLC, )

)

Defendant. )

ORDER

This matter is before the Court on the Motion for Summary Judgment (Doc. 

34), Brief in Support (Doc. 35), and Evidentiary Submission in Support (Docs. 36-

38) filed by Grede II, LLC1 (“Defendant”), the response2 (Doc. 43) filed by Anthony 

McCants (“Plaintiff”), and Defendant’s reply (Doc. 44). For the reasons set forth 

herein, Defendant’s motion for summary judgment is due to be GRANTED.

I. BACKGROUND

Plaintiff was employed as an “NDT shear operator” by Defendant, “a cast iron 

foundry.” (Doc. 36-1, p. 6; Doc. 35, p. 2). Plaintiff suffered a gunshot wound in 2011, 

which left him with chronic pain. (Doc. 36-1, pp. 10-12). Plaintiff claims that he 

 1 Plaintiff sued “Grede LLC,” although the proper party is Grede II, LLC. 

(Doc. 6, p. 1).

2 Plaintiff titled his response as “Plaintiff’s Motion for Summary Judgment.” 

However, the “motion” was filed out of time and reads more like a response than a 

motion. The Court will treat it as Plaintiff’s response. To the extent that Plaintiff’s 

filing could possibly be treated as a motion for summary judgment, the motion is 

denied.

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missed work numerous times due to this pain, which was covered by the Family and 

Medical Leave Act (“FMLA”). (Doc. 1, p. 2). Defendant argues that the excessive 

absences were not protected by the FMLA. (Doc. 35, p. 1). Ultimately, Plaintiff was

terminated for violating Defendant’s attendance policy on February 25, 2014. (Doc. 

37-4, p. 7).

Plaintiff’s complaint, filed pro se, mentions the Equal Employment 

Opportunity Commission, discrimination, the FMLA, the Occupational Safety and 

Health Act, the National Labor Relations Board, the Americans with Disabilities

Act, and Title VII of the Civil Rights Act of 1964. (Doc. 1, pp. 1-3). Defendant’s 

motion for summary judgment interprets Plaintiff’s complaint as asserting claims 

for FMLA interference and retaliation. The Court agrees with this assessment and 

thus will only consider Plaintiff’s allegations under the FMLA.

II. ANALYSIS

A. The Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) instructs that “[t]he court shall grant 

summary judgment if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” The trial 

court’s mission is to “determine whether there is a genuine issue for trial” and not 

to “weigh the evidence.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 

(1986).

The burden is on the moving party to show that there is no genuine dispute 

as to any material fact. Id. at 256. In conducting its summary judgment analysis, 

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the Court must construe all evidence “in the light most favorable to the party 

opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

After the movant meets its burden, the burden shifts to the nonmoving party 

“to make a showing sufficient to establish the existence of an element essential to 

that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the 

nonmoving party fails to do so, the “complete failure of proof concerning an essential 

element of the nonmoving party’s case necessarily renders all other facts 

immaterial.” Id. at 323. Further, Rule 56 “requires the nonmoving party to go 

beyond the pleadings and by her own affidavits, or by the depositions, answers to 

interrogatories, and admissions on file, designate specific facts showing that there is 

a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). There is no 

genuine issue for trial “[w]here the record taken as a whole could not lead a rational 

trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986).

B. Pro Se Litigants

The pro se litigant’s road to trial is fraught with peril. Ever mindful of the 

difficulties that pro se litigants face, a trial court will hold pro se pleadings “to a less 

stringent standard than pleadings drafted by attorneys.” Tannenbaum v. United 

States, 148 F.3d 1262, 1263 (11th Cir. 1998). The court will therefore “liberally 

construe” the pro se pleadings. Fernandez v. United States, 941 F.2d 1488, 1491 

(11th Cir. 1991). Despite this leniency, pro se litigants must “conform to procedural 

rules.” Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002). A pro se litigant “is 

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subject to the relevant law and rules of court, including the Federal Rules of Civil 

Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). The Local Rules 

of this Court set out the following: “All persons proceeding pro se shall be bound by, 

and must comply with, all Local Rules of this Court, as well as the Federal Rules of 

Civil and Criminal Procedure, unless excused by Court order.” Gen. Local R. 83.5(a). 

The Supreme Court has recognized that the “rules of procedure are based on the 

assumption that litigation is normally conducted by lawyers,” stating that the Court 

has “never suggested that procedural rules in ordinary civil litigation should be 

interpreted so as to excuse mistakes by those who proceed without counsel.” McNeil 

v. United States, 508 U.S. 106, 113 (1993). Pro se litigants proceed at their own 

risk.

C. Family and Medical Leave Act

The FMLA provides that “an eligible employee shall be entitled to a total of 

12 workweeks of leave during any 12-month period . . . [b]ecause of 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) (2012). The Act defines “[s]erious health 

condition” 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.” Id. § 2611(11).

The Act allows leave to “be taken intermittently or on a reduced leave 

schedule when medically necessary.” Id. § 2612(b)(1). The employee is required to 

provide the employer with notice in advance when the leave is foreseeable. Id. § 

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2612(e)(2). When the leave is not foreseeable, “an employee must provide notice to 

the employer as soon as practicable under the facts and circumstances of the 

particular case.” 29 C.F.R. § 825.303(a) (2015). The notice must “provide sufficient 

information for an employer to reasonably determine whether the FMLA may apply 

to the leave request.” Id. § 825.303(b). The notice “must explain the reasons for the 

needed leave so as to allow the employer to determine whether the leave qualifies 

under the Act.” Id. § 825.301(b). Otherwise, the employee risks having the leave 

request denied. Id. An employer may require “certification issued by the health care 

provider of the eligible employee . . . . The employee shall provide, in a timely 

manner, a copy of such certification to the employer.” 29 U.S.C. § 2613(a) (2012). 

The certification must state:

(1) the date on which the serious health condition commenced;

(2) the probable duration of the condition;

(3) the appropriate medical facts within the knowledge of the health 

care provider regarding the condition;

. . .

(4)(B) for purposes of leave [for an eligible employee], a statement that 

the employee is unable to perform the functions of the position of the 

employee; 

. . . 

(6) in the case of certification for intermittent leave, or leave on a 

reduced leave schedule, . . . a statement of the medical necessity for the 

intermittent leave or leave on a reduced leave schedule, and the 

expected duration of the intermittent leave or reduced leave schedule;

. . . 

Id. § 2613(b). An employer may also “require that the eligible employee obtain 

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subsequent recertifications on a reasonable basis.” Id. § 2613(e).

There are two causes of action for violations of the Act: interference claims

and retaliation claims. See Strickland v. Water Works & Sewer Bd. of the City of 

Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001). For interference, the Act states, 

“It shall be unlawful for any employer to interfere with, restrain, or deny the 

exercise of or the attempt to exercise, any right provided under this subchapter.” 29 

U.S.C. § 2615(a)(1) (2012). For retaliation, the Act states, “It shall be unlawful for 

any employer to discharge or in any other manner discriminate against any 

individual for opposing any practice made unlawful by this subchapter.” Id. § 

2615(a)(2). The Code of Federal Regulations sheds more light on violations of the 

FMLA:

The Act’s prohibition against interference prohibits an employer from 

discriminating or retaliating against an employee or prospective 

employee for having exercised or attempted to exercise FMLA rights. 

For example, if an employee on leave without pay would otherwise be 

entitled to full benefits (other than health benefits), the same benefits 

would be required to be provided to an employee on unpaid FMLA

leave. By the same token, employers cannot use the taking of FMLA 

leave as a negative factor in employment actions, such as hiring, 

promotions or disciplinary actions; nor can FMLA leave be counted 

under no fault attendance policies.

29 C.F.R. § 825.220(c) (2015).

1. Interference

Interference requires an employee to show “that he was entitled to a benefit 

under the FMLA and was denied that benefit.” Surtain v. Hamlin Terrace Found., 

789 F.3d 1239, 1247 (11th Cir. 2015).

In order to determine whether Defendant interfered with Plaintiff’s FMLA 

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rights, it is necessary to characterize Plaintiff’s attendance during the relevant 

period leading up to his dismissal. The attendance policy in effect at the time of 

Plaintiff’s termination tracked absences and the occasions when employees arrived 

late or left early, colloquially referred to as “tardies” and “leave earlies,” 

respectively. The policy allowed for a maximum of four unexcused absences, 

twenty-one unexcused and excused absences in total, six tardies, and six leave 

earlies in a twelve-month period. (Doc. 37-3, pp. 4-5). The total number of each 

category was calculated on a rolling basis. Id. at 4. Upon reaching the maximum 

limit of any particular category, the employee was reviewed for discharge. Id. at 4-5. 

A doctor’s note was required for an absence to be excused. Id. at 4. The employee 

was obligated to bring in the doctor’s note on the first day he or she returned to 

work following the absence. Id. Otherwise, the absence would be deemed 

unexcused. Id.

Plaintiff was terminated on February 25, 2014, so the relevant time period is 

from February 26, 2013, to the date of termination. In that time, a tally of the 

absence reports reveals that Plaintiff accumulated three excused absences (two 

medical and one funeral), two leave earlies, eleven FMLA absences and one FMLA 

leave early that were covered by doctor’s notes, and nineteen FMLA absences, two 

FMLA tardies, and thirteen FMLA leave earlies that were not supported by doctor’s 

notes. (Doc. 38-10, pp. 27-38, 45, 51, 58-59, 64, 68-69, 71, 73, 79, 82, 85-87, 94, 131-

32).

Plaintiff turned in two FMLA certifications to Defendant during the year 

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leading up to his termination. The first was completed by Dr. F. D. Salter on March 

4, 2013. (Doc. 38-8, p. 4). The certification states that Plaintiff will suffer from his 

condition for life. Id. at 2. Among other dates, the certification informs that Dr. 

Salter treated Plaintiff on March 4, 2013, for his condition. Id. Dr. Salter certified 

that Plaintiff would be able to perform his job despite his condition. Id. The 

certification stated that Plaintiff would “have pain for life” but would only need to 

be absent from work to see the doctor for flare-ups approximately once every two 

months. Id. at 3. The certification also listed Plaintiff’s prescribed medication as 

Lortab 10, Soma, and Motrin. Id.

The last certification submitted by Plaintiff was completed on February 21, 

2014, by Dr. Salter, just four days before Plaintiff’s termination. (Doc. 38-9, p. 3). 

The certification states that Plaintiff was treated for his condition on January 9th, 

January 31st, and February 17th of 2014, among other dates. Id. at 2. Dr. Salter 

certified that Plaintiff would need to work a maximum of eight hours a day and five 

days per week from February 21, 2014, until he could see an orthopedic doctor. Id.

at 3. The certification also warned that “muscle relaxers & pain medications have 

an effect on [Plaintiff’s] ability to be alert.” Id. This certification did not give an 

estimate on the number of flare-ups that Plaintiff was likely to experience.

Plaintiff admitted in his deposition that he knew that Defendant needed 

paperwork from his doctor in order to determine whether leave would be classified 

as FMLA. (Doc. 36-1, p. 30). Plaintiff claims that he missed work because he was 

taking painkillers and therefore “would have been a safety hazard to [himself] and 

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other employees.” Id. However, Plaintiff conceded that his doctor never specifically 

told Defendant that Plaintiff could not work while taking his prescribed medication. 

Id. Plaintiff also acknowledged that the FMLA certifications did not say how often 

he had to take his medication or provide the side effects of that medication. Id. at 

43. Plaintiff recognized that he was out of work “considerably more” than the 

amount indicated on his FMLA certifications. Id. at 31. Plaintiff admitted that, 

although he left early throughout the time relevant to his claim, his certifications

did not state that he needed to work reduced hours until the last certification was 

issued on February 21, 2014. Id. at 34-35.

Plaintiff met with Defendant’s representatives multiple times to discuss his 

FMLA leave. (Doc. 36-1, pp. 37-38). Plaintiff’s manager and human resources 

manager asserted in affidavits that Plaintiff continued to misuse his FMLA leave 

after being warned multiple times that his FMLA certification did not cover the 

excessive leave that he was taking. (Doc. 37-1, pp. 6-7; Doc. 38-1, pp. 16-17). The 

human resources manager maintained that he relied on Plaintiff’s FMLA 

certifications to assess whether Plaintiff’s leave was covered by the FMLA. (Doc. 38-

1, pp. 5-6). Plaintiff’s manager also stated that he “never received any information 

or doctor’s notes from Mr. McCants indicating that he had restrictions or could not 

otherwise perform his job.” (Doc. 37-1, p. 6). The human resources manager

affirmed that he terminated Plaintiff’s employment because “Mr. McCants had 

incurred so many tardies, absences and leave earlies in violation of Grede’s 

attendance policy.” (Doc. 38-1, p. 17).

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There is no evidence that any of the FMLA leave covered by doctor’s notes 

and certifications was used to find Plaintiff in violation of the attendance policy.

Further, there is no indication that Plaintiff was denied leave covered by the FMLA.

Plaintiff has failed to show that the leave not covered by doctor’s notes and 

certifications was entitled to protection under the FMLA. The entirety of the 

evidence shows that Plaintiff was terminated for violating the attendance policy by 

taking excessive non-FMLA leave. Thus, Defendant is due to be granted summary 

judgment on the interference claim.

2. Retaliation

Retaliation requires the employee to “demonstrate that his employer 

intentionally discriminated against him in the form of an adverse employment 

action for having exercised an FMLA right.” Strickland, 239 F.3d at 1207. If the 

employee lacks direct evidence that the employer intentionally retaliated against 

him, as is the case here, the employee’s claim is subject to the McDonnell Douglas

framework provided by the Supreme Court in McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973), and Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 

(1981). See Strickland, 239 F.3d at 1207. For a prima facie case of retaliation, the 

employee must show that “(1) he engaged in a statutorily protected activity; (2) he 

suffered an adverse employment decision; and (3) the decision was causally related 

to the protected activity.” Id.

Plaintiff suffered an adverse employment decision through his termination. 

However, he fails to meet the other two elements. As discussed above, Plaintiff did 

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not engage in statutorily protected activity. The excessive leave he claimed under 

the FMLA was not eligible for coverage. Further, viewing the evidence in the light 

most beneficial to Plaintiff reveals that Defendant’s decision to fire Plaintiff was 

based on his violation of the attendance policy and not any FMLA leave. Defendant 

is entitled to summary judgment on this claim.

CONCLUSION

Defendant’s motion for summary judgment is hereby GRANTED.

DONE and ORDERED this 29th day of July, 2016.

/s/ Callie V. S. Granade

SENIOR UNITED STATES DISTRICT JUDGE

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