NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0577n.06

                                       Nos. 07-4320, 07-4329
                                                                                           FILED
                                                                                        Aug 18, 2009
                                                                                  LEONARD GREEN, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

MARTIN ALLEN,

       Plaintiff-Appellant, Cross-Appellee,
                                                       ON APPEAL FROM THE UNITED
v.                                                     STATES DISTRICT COURT FOR THE
                                                       SOUTHERN DISTRICT OF OHIO
BUTLER COUNTY COMMISSIONERS,

      Defendant-Appellee, Cross-Appellant.
_______________________________________/

BEFORE:        BATCHELDER, Chief Judge, CLAY, Circuit Judge; and COX, District
               Judge.*

       COX, District Judge. Butler County, Ohio (“the County”) terminated the employment of

its employee, Martin Allen (“Allen”), for violating the County’s paid sick leave requirements, and

for improperly flexing his scheduled work hours. Allen contended that the County’s paid sick leave

requirements conflicted with the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et

seq., and filed suit against the County. Both parties filed cross-motions for summary judgment

before the lower court. The lower court granted partial summary judgment for Allen on the issue

of FMLA liability, and allowed the case to proceed to jury trial on the issue of damages. At trial, the

lower court allowed the County to present evidence that it would have fired Allen despite the

conduct Allen claimed violated the FMLA. The jury returned a verdict for the County. Following

trial, Allen filed a motion for attorney fees under the FMLA, which the lower court denied.



       *
       The Honorable Sean F. Cox, United States District Judge for the Eastern District of
Michigan, sitting by designation.
Nos. 07-4320, 07-4327
Allen v. Butler County

       Allen filed a timely appeal to this Court, wherein he argues that: 1) the lower court erred in

not granting Allen’s motion for attorney fees; and 2) the lower court erred in allowing the County

to present evidence showing that the County was justified in terminating Allen for reasons outside

the scope of Allen’s FMLA suit. The County filed a cross-appeal, wherein it argues that the lower

court erred by granting partial summary judgment in favor of Allen, and not in favor of the County,

on the issue of FMLA liability. For the reasons that follow, we agree with the County’s argument

on cross-appeal. We therefore REVERSE the lower court’s grant of partial summary judgment for

Allen, and REMAND with instructions to grant summary judgment in favor of the County. Because

this Court reverses the lower court’s summary judgment in favor of Allen, and instead remands with

instructions to grant summary judgment in favor of the County, the remainder of Allen’s issues on

appeal are moot.

                                        BACKGROUND

       The County hired Allen as an Instrument Technician for its Department of Environmental

Services on November 22, 1993. Thereafter, Allen became a member of the American Federation

of State, County and Municipal Employees, AFL-CIO (“Union”), which had a Collective Bargaining

Agreement (“CBA”) with the County. The CBA’s paid sick leave requirement was as follows:

       Employees are responsible for contacting the Employer for each day of an absence
       in accordance with this Section, unless the Employee is hospitalized or has provided
       a written doctor’s statement specifying the anticipated date of return.

       Aside from incorporating the FMLA into its provisions, the CBA’s sick leave policy outlined

the call-in process all Union employees were required to follow in order to receive sick leave

benefits. This paid leave policy was separate and distinct from the FMLA policy.

                                                 2
Nos. 07-4320, 07-4327
Allen v. Butler County

          Allen began experiencing health problems in 2002, coincidentally the same time he and his

wife were going through a divorce. The County claims Allen’s work performance began to

deteriorate at that time, including refusals by Allen to complete assigned tasks. As a result, Allen

was issued his first written reprimand on December 11, 2002. After receiving this reprimand, Allen

allegedly made untrue and disparaging statements about his immediate supervisor, which led to a

second disciplinary action.

          Allen and the Union agreed to settle this second disciplinary issue with the County on April

16, 2003. Allen agreed to a three-day unpaid suspension and waiver of any claims he may have had,

in exchange for the County not terminating him.

          Despite the April 2003 settlement agreement between Allen and the County, Allen was soon

again involved in disciplinary issues. This led to another ten-day unpaid suspension on September

13, 2003. The Union filed a grievance against the County in response to this suspension, and in

October of 2003, while that grievance was pending, Allen received yet another pre-disciplinary

notice.

          To resolve the September and October 2003 disciplinary issues, Allen and the Union

voluntarily entered into a “last chance agreement” with the County on December 1, 2003. Under this

agreement, Allen received an additional ten-day unpaid suspension, and was placed on what the

County termed “final warning status.” Allen further agreed that if he failed to comply with any of

the County’s requirements for the use of leave, or for any other disciplinary offenses, he understood

that his employment would be immediately terminated.



                                                   3
Nos. 07-4320, 07-4327
Allen v. Butler County

        In addition to these other disciplinary problems, Allen had previously been informed by his

supervisors to not “flex” his time (i.e., punch in early and then punch out earlier than the end of his

expected shift). Despite this prohibition, however, Allen repeatedly flexed his hours on several work

days between May 18 and May 28, 2004.

        On June 1, 2004, before the County could provide Allen with yet another pre-disciplinary

notice for these “flex time” violations, Allen called into work claiming he would be seeing a doctor

that day due to a personal illness. As Allen was unsure when he would be returning to work, his

supervisor advised him that his requested leave would be classified as FMLA leave pending

certification, instructed him to have his doctor complete an FMLA certification form, and instructed

Allen that he would be required to call in daily pursuant to the CBA’s provisions on paid sick leave.

        By June 10, 2004, over a week after Allen began missing work due to his personal illness,

Allen still had not provided the County with a written doctor’s note specifying his anticipated date

of return to work. On that same day, Allen failed to call in his absence as required by the CBA. The

County treated this failure to call in as another disciplinary offense, and scheduled yet another

disciplinary hearing for Allen to address both Allen’s failure to call in during his paid sick leave, and

his purported “flex time” violations.

        At the ensuing disciplinary hearing, held on July 29, 2004, the County found that Allen had

failed to abide by the CBA’s requirement for daily call-in while on sick leave without FMLA

certification. The County also found that Allen had improperly “flexed” his work hours on multiple

occasions between May 18, 2004 and May 28, 2004. As both of these disciplinary infractions



                                                   4
Nos. 07-4320, 07-4327
Allen v. Butler County

violated Allen’s “last chance agreement” with the County, the County terminated Allen’s

employment, effective August 4, 2004.

       Allen filed suit alleging that the County interfered with his right to FMLA leave under 29

U.S.C. § 2615(a)(1). Both parties filed cross-motions for summary judgment in the lower court,

Allen arguing that the County violated the FMLA interference provisions as a matter of law, and the

County arguing that their call-in procedures did not interfere with Allen’s FMLA rights. The lower

court granted partial summary judgment for Allen, finding that the County’s call-in policy put

unreasonable burdens upon an individual attempting to access FMLA leave. The case proceeded to

jury trial on the issue of damages.

       Before trial, the lower court denied Allen’s motion in limine to prevent the County from

arguing that Allen would have been fired despite the County’s FMLA violations. The County sought

to bring forth evidence that, under the last chance agreement, Allen would have been fired for his

“flex time” violations. The lower court allowed the County to present such evidence, and the jury

returned a verdict in favor of the County, awarding Allen no damages for his FMLA claim.

       After trial, Allen filed a motion for attorney fees pursuant to 29 U.S.C. § 2617(a)(3), which

allows a “prevailing party” in an FMLA action to claim reasonable attorney fees. Allen contended

that, as he had been granted partial summary judgment on the liability issue by the lower court, this

entitled him to attorney fees. The lower court disagreed, and denied the award.

       On appeal, the County challenges the lower court’s grant of partial summary judgment. Allen

also appeals the lower court’s evidentiary ruling denying his motion in limine, as well as the lower

court’s denial of his motion for attorney fees.

                                                  5
Nos. 07-4320, 07-4327
Allen v. Butler County

                                            ANALYSIS

         The County appeals the lower court’s grant of partial summary judgment for Allen on the

issue of FMLA liability. The Court reviews summary judgment decisions by the lower court under

a de novo standard. Cavin v. Honda of America, 

(6th Cir. 2003).

         The FMLA, 29 U.S.C. § 2601 et seq., provides for unpaid leave for up to twelve weeks in

a twelve month period for employees with a serious medical condition. 29 U.S.C. § 2612(a)(1).

These twelve weeks of leave may be taken continuously in one block of time, or intermittently when

medically necessary. 29 U.S.C. § 2612(b)(1).

         FMLA leave is generally unpaid leave, but “[t]he Act encourages businesses to adopt more

generous policies, and many employers have done so.” Ragsdale v. Wolverine World Wide, Inc., 

, 84 (2002). Congress encouraged the enactment of such additional programs, noting that

“[n]othing in this Act. . .shall be construed to discourage employers from adopting or retaining leave

policies more generous than any policies that comply with the requirements under this Act.” 

citing 29 U.S.C. § 2653. When an employer elects to offer such additional paid benefits, the

employer is within its rights to count such leave toward the twelve week FMLA guarantee, “[a]s long

as these policies meet the Act’s minimum requirements. . . .” 

regulations clarify an employee’s rights and responsibilities under the Act,

including an allowance for employers to run paid leave programs concurrent with unpaid FMLA

leave:

         Generally, FMLA leave is unpaid leave. However, under the circumstances
         described in this section, FMLA permits an eligible employee to choose to substitute
         accrued paid leave for FMLA leave. If an employee does not choose to substitute

                                                  6
Nos. 07-4320, 07-4327
Allen v. Butler County

         accrued paid leave, the employer may require the employee to substitute accrued
         paid leave for unpaid FMLA leave. The term “substitute” means that the paid leave
         provided by the employer, and accrued pursuant to established policies of the
         employer, will run concurrently with the unpaid leave. Accordingly, the employee
         receives pay pursuant to the employer’s applicable paid leave policy during the
         period of otherwise unpaid FMLA leave. An employee’s ability to substitute accrued
         paid leave is determined by the terms and conditions of the employers normal leave
         policy. When an employee chooses, or an employer requires, substitution of accrued
         paid leave, the employer must inform the employee that the employee must satisfy any
         procedural requirements of the paid leave policy only in connection with the receipt
         of such payment. See § 825.300(c). If an employee does not comply with the
         additional requirements in an employer’s paid leave policy, the employee is not
         entitled to substitute accrued paid leave, but the employee remains entitled to take
         unpaid FMLA leave. Employers may not discriminate against employees on FMLA
         leave in the administration of their paid leave policies.

29 C.F.R. § 825.207(a) (emphasis added). This Court, albeit in an unpublished opinion, recognized

that § 825.207(a) allows employers to run paid leave and unpaid FMLA leave concurrently. See

Hicks v. LeRoy’s Jewelers, Inc., 

, *4 (6th Cir. July 17, 2000) (“. . .the regulations

clearly provide that an employee’s FMLA leave may run concurrently with paid medical or sick

leave”).

         In the instant case, Allen was properly informed by the County of the requirements expected

of him to receive sick pay during his FMLA leave. However, the relevant issue in this case - what

happens when an employer runs sick leave concurrently with FMLA leave and the employee violates

the more stringent requirements of the paid sick leave policy - is an issue of first impression for this

Court.

         The Court begins its analysis mindful of its prior holding in Edgar v. JAC Products, 

(6th Cir. 2006). In Edgar, a terminated employee alleged that his termination as well as the

employer’s actions prior to termination constituted FMLA violations. Edgar suffered from extremely

                                                   7
Nos. 07-4320, 07-4327
Allen v. Butler County

high blood pressure, and his employer required him to have his doctor fill out a certification form

before it would certify his FMLA leave. Edgar at 504-05. This Court upheld the employer’s

requirement for medical certification, holding that “interference with an employee’s FMLA rights

does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of

FMLA rights for engaging in the challenged conduct.” 

Thus, this Court has already held

that the mere occurrence of interference with an employee’s FMLA rights is not a per se FMLA

violation.

       The dissent regards our reliance on Edgar as misplaced, arguing that the County had no

reason for terminating Allen which was “legitimate and unrelated to the exercise of FMLA rights.”

Dissent at 6 (quoting 

). The dissent further argues:

       [i]t cannot be said that Allen’s failure to call in was somehow unrelated to the
       exercise of his FMLA rights; Allen was required to call in sick precisely because he
       was out on leave which was undisputedly FMLA-qualified leave.

(emphasis in original). While we share the dissent’s concern that employers must proffer

such legitimate, unrelated reasons for terminating an employee, here, the County had not one, but

two proffered reasons for terminating Allen: 1) his “flex time” violations; and 2) his failure to abide

by the paid sick-leave call-in requirement. The County fired Allen for both violations.

       This Court has also noted that employers may rightfully terminate an employee for failure

to comply with notification and medical certification procedures inherent in FMLA regulations. See

Killian v. Yorozu Automotive Tennessee, Inc., 

, 555 (6th Cir. 2006). Though Killian

held that the employer in that case could not demonstrate such violations by its employee, the Court

noted as follows with respect to the relevant FMLA regulations:

                                                  8
Nos. 07-4320, 07-4327
Allen v. Butler County

       Yorozu directs our attention to 29 C.F.R. § 825.310, which permits an employer to
       require a returning employee to provide a fitness-for-duty certification through a
       uniformly applied policy. If an employee fails to provide such certification or new
       medical certification of a serious health condition at the end of the employee’s leave
       period, the employee may be terminated.

(internal citation omitted).

       While the issue in this case - whether an employee on FMLA leave may be terminated for

violating the more stringent requirements of a concurrent paid sick leave policy - is one of first

impression for this Court, other circuits have stated that an employee can be required to comply with

the reasonable requirements of an employer’s sick leave policy while on FMLA leave. In Gilliam

v. U.P.S., 

(7th Cir. 2000), the Seventh Circuit held that the FMLA does not preclude

an employer from enforcing a collective bargaining provision requiring the employee to notify the

employer of their intended date to return to work. “[N]othing in the FMLA or the implementing

regulations prevents an employer from enforcing a rule requiring employees on FMLA leave to keep

the employer informed about the employee’s plans.” Gilliam at 972. The Seventh Circuit also has

allowed an employer to impose more burdensome “return to work” requirements for individuals on

FMLA leave than were mandated by statute. Harrell v. United States Postal Service, 

,

923 (7th Cir. 2006).

       The facts of this case are analogous to those of Callison v. City of Philadelphia, 

(3d Cir. 2005). Callison was a municipal employee of the City of Philadelphia, and had a penchant

for abusing his paid sick leave. Callison at 118. “Because of the significant amount of [Callison’s]

absences, the City placed Callison on a Sick Abuse List on October 30, 2000.” 

Nos. 07-4320, 07-4327
Allen v. Butler County

that status, however, Philadelphia’s employee manual contained the following requirement for all

employees on paid sick leave:

       During regular working hours, when an employee is home on sick leave, the
       employee must notify the appropriate authority or designee when leaving home and
       upon return.

on the Sick Abuse List, took a sick day on January 8, 2001. That same day,

Callison left his home without informing his employer of his intention to do so, and missed a

telephone call from an investigator. 

Callison was charged with a violation for this

infraction, and while on subsequent FMLA leave from January 24 to April 17, 2001, was repeatedly

not at home without notifying the City’s hotline, resulting in additional unpaid suspensions. 

FMLA interference suit, Callison argued “that the FMLA anti-abuse and eligibility

provisions conflict with the City’s call-in requirement in its sick leave policy and therefore the

requirement should not have applied” while he was on leave. 

“He asserts that once an

employee is pre-approved for FMLA leave, he/she should be left alone.” 

omitted). The Third Circuit rejected this argument:

       [T]he [lower] Court reasoned that the purpose of the FMLA is not compromised by
       this policy because it “neither prevents employees from taking FMLA leave nor
       discourages employees from taking such leave. It simply ensures that employees do
       not abuse their FMLA leave. We agree. . . [T]he eligibility requirements contained
       in 29 U.S.C. § 2612(a)(1) do not conflict with the call-in procedure. Unlike the
       eligibility provision, the call-in procedure does not serve as a pre-requisite to
       entitlement of FMLA leave. Rather, the procedure merely sets forth obligations of
       employees who are on leave, regardless of whether the leave is pursuant to the
       FMLA. The purpose of this procedure is to provide an additional safeguard against
       sick leave abuse by employees. . .Nothing in the FMLA prevents employers from


                                                10
Nos. 07-4320, 07-4327
Allen v. Butler County

       ensuring that employees who are on leave from work do not abuse their leave,
       particularly those who enter leave while on the employer’s Sick Abuse List.

(emphasis added).

       Just as in Callison, here the CBA Allen’s Union signed with the County required individuals

on paid sick leave to perform requirements not necessary under the FMLA: Allen was required to

either 1) procure a note from a doctor letting his employer know when his employer could expect

Allen’s return; or 2) call the County daily with updates as to his condition. Just as in Callison, this

procedure “merely sets forth obligations of employees who are on leave, regardless of whether the

leave is pursuant to the FMLA.” Callison at 120.

       Further, just as was the case in Callison, the County’s call-in requirement helps “ensur[e] that

employees who are on leave from work do not abuse their leave. . . .” Callison at 121. The Third

Circuit found such motivation by employers particularly persuasive when faced with employees with

a penchant for abusing such privileges, noting that “those who enter leave while on the employer’s

Sick Abuse List” were rightly subjected to such policies. 

employee in Callison, here

the County had documented a history of personnel issues with Allen.            In Strickland v. Water

Works and Water Sewage Bd. of the City of Birmingham, 

(11th Cir. 2001), however,

the Eleventh Circuit found that the fact an employee had failed to exhaust his paid sick leave when

he allegedly requested FMLA leave did not preclude the city from being liable for discharging him.

The Strickland court described the right of an employer to substitute paid leave for unpaid FMLA

leave, but noted as follows:

       Neither Congress nor the Department of Labor could have intended. . .to allow
       employers to evade the FMLA by providing their employees with paid sick leave

                                                  11
Nos. 07-4320, 07-4327
Allen v. Butler County

       benefits. Otherwise, when an employee misses work for an illness that qualifies
       under both his employer’s paid sick leave policy and the FMLA, his employer could
       elect to have the absence count as paid sick leave rather than FMLA leave and would
       then be free to discharge him without running afoul of the Act.

. This Court agrees that employers cannot evade their responsibilities

under the FMLA. However, the facts of Strickland are distinguishable from the instant case. Here,

the County did not classify Allen’s leave as non-FMLA. Instead, the County provisionally classified

the leave as FMLA leave, pending Allen’s furnishing the necessary certification, and merely imposed

call-in requirements to police its employees’ use of paid sick leave; Allen remained on concurrent

FMLA leave the entire time, and remained entitled to all protections afforded by that Act with

respect to his right to unpaid leave. In fact, Allen does not claim that he was denied FMLA leave.

       The lower court’s holding stands in contrast to the analyses of our sister circuits in similar

situations. The lower court’s holding was as follows:

       The Court finds as a matter of law that Defendants’ daily call-in requirement
       conflicts with the notice requirements of the FMLA for unforeseeable leave. . . There
       is no requirement that once the employee gives notice of the need for leave and the
       employer is aware if the reason for the leave, the employee must provide additional
       notice by calling in every day during the period of leave. In this regard, the CBA is
       more stringent than the FMLA. Defendant may not lawfully interfere with Plaintiff’s
       FMLA rights by enforcing stricter notice requirements, regardless of whether those
       requirements were contained in the CBA or in an internal company policy.

(JA pp.43-44)(emphasis added). We disagree, and instead hold that the County’s internal call-in

policy neither conflicts with nor diminishes the protections guaranteed by the FMLA. In so holding,

we adopt the reasoning of the Third Circuit in Callison, that “[n]othing in the FMLA prevents

employers from ensuring that employees who are on leave from work do not abuse their leave. . . .”

.

                                                12
Nos. 07-4320, 07-4327
Allen v. Butler County

       Pursuant to the terms of Allen’s December 1, 2003 “last chance agreement” with the County,

Allen agreed that the County could terminate his employment for any further violations of the

County’s leave requirements, or for any other disciplinary offenses. At the July 29, 2004 disciplinary

hearing, the County found that Allen had violated the “last chance agreement” in two ways: Allen’s

failure to abide by the CBA’s call-in policy; and Allen’s improper “flexing” his work hours without

prior approval. Under the “last chance agreement,” these violations gave the County the authority

to terminate Allen’s employment, and the County exercised that authority in terminating Allen

effective August 4, 2004.

       The lower court found the County liable for interfering with Allen’s right to take FMLA

leave. We disagree for the reasons stated above, and therefore REVERSE and REMAND with

instructions for the lower court to grant summary judgment in favor of the County. In light of this

conclusion, the Court need not reach any of Allen’s issues on appeal.



                                          CONCLUSION

       For these reasons, we REVERSE the lower court’s grant of partial summary judgment in

favor of Allen, and REMAND with instructions to grant summary judgment in favor of the County.




                                                 13
Nos. 07-4320, 07-4327
Allen v. Butler County

        CLAY, Circuit Judge, dissenting. The majority holds that an employer can terminate an

employee for violating the more stringent requirements of its paid sick leave policy while an

employee is out on concurrent FMLA leave. This conclusion is in direct contradiction to the

guidance set forth in 29 C.F.R. § 825.207—a regulation that speaks directly to the matter at hand—

and I find the majority’s interpretation of (and lack of adherence to) this regulation to be logically

and legally unsupported. Moreover, the majority opinion disregards material factual disputes as to

whether Allen was terminated, at least in part, because he took leave that was protected by the

FMLA. Because of the existence of these questions of fact, I would find that summary judgment

could not have been properly granted to either party in this case, would reverse the district court’s

grant of partial summary judgment to Allen, and would remand the case for a jury trial with respect

to all issues. I therefore respectfully dissent.

                                                   I.

        The majority and I agree that an employer can implement a paid sick leave policy that runs

concurrent with unpaid FMLA leave even though the paid sick leave policy may impose procedural

requirements that are more stringent than those set forth in the FMLA. See 29 C.F.R. § 825.207;

Hicks v. LeRoy’s Jewelers, 

(6th Cir. July 17, 2000). However, we

plainly disagree as to the primary issue presented by this case: whether an employer violates the

FMLA when it terminates an employee for violating the more stringent requirements of its

concurrent paid sick leave policy.




                                                   14
Nos. 07-4320, 07-4327
Allen v. Butler County

          The majority opinion makes this issue appear unduly complicated. However, 29 C.F.R. §

825.207 plainly addresses the matter at hand. The regulation, entitled “Substitution of paid leave,”

states:

          Generally, FMLA leave is unpaid leave. However, under the circumstances described
          in this section, FMLA permits an eligible employee to choose to substitute accrued
          paid leave for FMLA leave. If an employee does not choose to substitute accrued
          paid leave, the employer may require the employee to substitute accrued paid leave
          for unpaid FMLA leave. The term “substitute” means that the paid leave provided by
          the employer, and accrued pursuant to established policies of the employer, will run
          concurrently with the unpaid FMLA leave. Accordingly, the employee receives pay
          pursuant to the employer’s applicable paid leave policy during the period of
          otherwise unpaid FMLA leave. An employee’s ability to substitute accrued paid
          leave is determined by the terms and conditions of the employer’s normal leave
          policy. When an employee chooses, or an employer requires, substitution of accrued
          paid leave, the employer must inform the employee that the employee must satisfy
          any procedural requirements of the paid leave policy only in connection with the
          receipt of such payment. See § 825.300(c). If an employee does not comply with the
          additional requirements in an employer’s paid leave policy, the employee is not
          entitled to substitute accrued paid leave, but the employee remains entitled to take
          unpaid FMLA leave. Employers may not discriminate against employees on FMLA
          leave in the administration of their paid leave policies.

          Applying the plain text of this regulation, it is clear that Allen was required to “satisfy any

procedural requirements of the paid leave policy only in connection with the receipt of such

payment.” 

When he failed to comply with the procedural requirements of the

paid leave policy (i.e., by failing to call in each day), the County was within its rights to “refuse to

substitute accrued paid leave” but Allen “remain[ed] entitled to take unpaid FMLA leave.” 

did not afford Allen this right. Instead, it fired him for failing to call in on a daily basis,




                                                    15
Nos. 07-4320, 07-4327
Allen v. Butler County

without allowing him to continue his leave as unpaid FMLA leave. This action was plainly

prohibited, and the majority’s conclusion to the contrary is unsupportable.

       This Court addressed similar circumstances in Cavin v. Honda of Am. Mfg., 

(6th Cir. 2003). In Cavin, an employee was terminated for twice violating his employer’s leave

policy, once in June of 1999 by failing to provide proper notice of his intention to take leave, and

once in October of 1999 by failing to timely submit a medical certification form.1 The employee

argued that his employer interfered with his FMLA rights when it denied a portion of his June 1999

leave and disciplined him. 

19. This Court stated “we agree with Cavin that the FMLA does

not permit an employer to limit his employee’s FMLA rights by denying them whenever an

employee fails to comply with internal procedural requirements that are more strict than those

contemplated by the FMLA.” 

20.

       In the instant case, as in Cavin, the County violated the FMLA when it terminated its

employee for “fail[ing], to comply with internal procedural requirements that are more strict than

those contemplated by the FMLA.” 

sure, the employer in Cavin denied the employee his

June leave because of his failure to provide what it deemed proper notice, while in the instant case,

Allen was provisionally granted concurrent paid and FMLA leave but fired before he was reinstated.

However, Allen’s right to be reinstated or to continue to receive FMLA leave is no less compelling

than his right to have his request for leave approved in the first place. See 

(in an FMLA

interference claim, a termination based even in part on the use of FMLA-qualified leave can violate


       1
       On appeal, the employee in Cavin “chose to simplify his claim” by appealing only the
June 1999 denial of FMLA. 

18.

                                                  16
Nos. 07-4320, 07-4327
Allen v. Butler County

the FMLA) (collecting cases); see also Edgar v. JAC Prods., 

, 507 (6th Cir. 2003)

(acknowledging that improper termination of employment based on conduct related to the FMLA

would constitute FMLA interference). Cavin therefore reinforces 29 C.F.R. § 825.207’s provision

that an employee who fails to satisfy the procedural requirements of an employer’s stricter leave

policy remains entitled to take unpaid FMLA leave. See 

(“Central to the purposes of the

FMLA is that its provisions apply even where the entitlements created by the Act are in excess of

those that an employer would be willing or able to provide on its own.”) (internal quotation marks

and citations omitted).

       The majority points to no cases that suggest that an employee on concurrent FMLA leave can

be terminated for failing to meet the requirements of the employer’s paid leave policy. As the

majority acknowledges, this is an issue of first impression in this Circuit. In fact, this Court’s

unpublished decision in Hicks, 

, is the only case in which this Court

interprets § 825.207. The case is not particularly helpful, however, as it merely confirms a point on

which we agree—that an employer can provide its paid sick leave concurrently with FMLA leave.

Likewise, there are notably few cases in which our sister circuits interpret § 825.207. Most of the

cases that do, like Hicks, merely confirm that an employer may provide sick leave concurrently with

FMLA leave and that an employee cannot demand them consecutively if the employee was given

proper notification by his or her employer. See, e.g., Dotson v. BRP US Inc., 

, 708 (7th

Cir. 2008); Slentz v. City of Republic, 

, 1010 (8th Cir. 2006). Even fewer cases

address a situation in which an employee was terminated after he failed to comply with his



                                                 17
Nos. 07-4320, 07-4327
Allen v. Butler County

employer’s paid leave policy. This is not surprising because § 825.207 clearly and unambiguously

resolves the question.

       However, Strickland v. Water Works & Sewer Bd., 

(11th Cir. 2001), is

instructive. Strickland involved an employer who terminated an employee after he left the job site

because he was suffering a diabetic attack. On summary judgment, the district court held that the

FMLA provided no relief because, at the time of the employee’s discharge, he was covered by the

employer’s paid sick leave policy. 

On appeal, the Eleventh Circuit addressed

whether the employee was entitled to the protection of the FMLA under those circumstances.

       As noted by my colleagues, the Strickland court explained that “Neither Congress nor the

Department of Labor could have intended . . . to allow employers to evade the FMLA by providing

their employees with paid sick leave benefits.” 

Otherwise, the court explained, “when

an employee misses work for an illness that qualifies under both his employer’s paid sick leave

policy and the FMLA, his employer could elect to have the absence count as paid sick leave rather

than FMLA leave and would then be free to discharge him without running afoul of the Act.” 

court therefore held that “the district court erred in holding that an employee who has

not exhausted his paid sick leave is not entitled to the protections of the FMLA.” 

       2
         The Strickland court noted that the district court’s confusion was understandable, given
the “unartful and unfortunate use of language in the FMLA and its accompanying regulations
indicating that paid leave may be used as a ‘substitute’ for unpaid FMLA leave.” 

The court went on to explain that, as § 825.207 expressly states, “substitute” merely means to run
concurrently.

                                                 18
Nos. 07-4320, 07-4327
Allen v. Butler County

        In sum, Strickland supports the proposition that the full protections of the FMLA apply when

an employer elects to provide FMLA leave concurrent with its own sick leave. In this case as well,

the County was not allowed to evade the protections of the FMLA and terminate Allen while he was

out on protected leave.

        The majority’s arguments to the contrary are unpersuasive. First, the majority points to

Edgar, 

. In Edgar, this Court affirmed a grant of summary judgment after holding that

an employer did not violate the FMLA when it fired an employee who was indisputably unable to

return to work at the conclusion of the 12-week period of statutory leave. 

The majority

opinion does not attempt to argue that Edgar is factually similar to this case, or even that it addresses

an employee who uses paid sick leave and FMLA leave concurrently. Instead, it points to a passage

in which the Edgar Court states that “interference with an employee’s FMLA rights [e.g., by

dismissing or refusing to reinstate an employee on FMLA leave] does not constitute a violation if

the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in

challenged conduct.” Slip op. at 7 (quoting 

).

        In applying Edgar, the majority states that “the County had not one, but two proffered reasons

for terminating Allen: 1) his ‘flex time’ violations; and 2) his failure to abide by the paid sick-leave

call-in requirement” and that “[t]he County fired Allen for both violations.” Slip op. at 8 (emphasis

in original). To be sure, the County can legitimately claim that it fired Allen based on his use of flex

time, but it is by no means clear that the County actually fired (or would have fired) him on this

basis. Allen was fired almost immediately after he took protected FMLA leave and the County’s

own termination paperwork states that Allen was fired for improper call-in of sick leave while

                                                   19
Nos. 07-4320, 07-4327
Allen v. Butler County

making no mention of flex time.3 A jury could quite rationally reject an argument that Allen was

fired or would have been fired based on improper use of flex time. See 

(explaining that an employee is lawfully dismissed “only if the dismissal would have occurred

regardless of the employee’s request for or taking of FMLA leave”) (citation omitted). Whether this

proffered reason is pretext, and the concomitant legitimacy of the County’s “same result anyway”

defense, are disputed issues of fact that preclude a grant of summary judgment.

       The majority also fails to explain how the County could terminate Allen for a “legitimate

reason unrelated to the exercise of FMLA rights,” by dismissing him for failing to call in sick each

day. See 

. Allen was required to call in sick precisely because he was out

on leave that was undisputedly FMLA-qualified leave. It is illogical to conclude that the termination

was “unrelated” to Allen’s exercise of his rights. Moreover, when Allen failed to comply with the

procedural requirements of the County’s stricter paid leave policy, the County was within its rights

to “refuse to substitute accrued paid leave,” but Allen “remain[ed] entitled to take unpaid FMLA

leave.” See 29 C.F.R. § 825.207 (an employee on concurrent FMLA and paid sick leave is required

to “satisfy any procedural requirements of the paid leave policy only in connection with the receipt

of such payment”); see also 

(“[T]he FMLA does not permit an employer to



       3
        As will be discussed below, Allen’s supervisor stated in his deposition that Allen had
been discharged, at least in part, because he had failed to call in his sick leave on a daily basis.
Allen’s personnel records also state that he was discharged for “violating a company rule or
policy for “improper call in of an absence.” (Joint Appendix (“J.A.”) at 154.) Further, an
unemployment form completed by the Butler County Auditor provided that the “final event that
caused the discharge” was “6-10-03 improper call-in of an absence. Violated a Last Chance
Agreement that was in place because of attendance problems.” (J.A. at 155.)

                                                 20
Nos. 07-4320, 07-4327
Allen v. Butler County

limit his employee’s FMLA rights by denying them whenever an employee fails to comply with

internal procedural requirements that are more strict than those contemplated by the FMLA.”).

When the County terminated Allen for failing to call in sick on a daily basis, it did so improperly,

and the alleged call-in violations were not a “legitimate reason” for the termination. The majority’s

reliance on Edgar is therefore misplaced.

        The majority also states that under Killian v. Yorozo Automotive Tennessee, Inc., “employers

may rightfully terminate an employee for failure to comply with notification and medical

certification procedures inherent in FMLA regulations.” Slip. op. at 8 (quoting Killian, 

, 55 (6th Cir. 2006)). That case, which addresses restrictions on leave that were expressly

authorized by the FMLA, is inapposite. In Killian, an employer attempted to justify its termination

of an employee by pointing to 29 C.F.R. § 825.310, which permits an employer to require a returning

employee to provide a fitness-for-duty certification, and provides that an employee who fails to do

so can be 

. This Court ultimately found that the employer had not

actually requested the certification, and that the employer was not justified in terminating the

employee. 

no way supports the majority’s position. Although an employer can legally

terminate an employee, under appropriate circumstances, for violating a requirement imposed by the

FMLA, the employer in the instant case terminated Allen for violating requirements that were

concededly stricter than the FMLA requirements. The majority’s reliance on this case indicates just

how little support there is for its position.



                                                 21
Nos. 07-4320, 07-4327
Allen v. Butler County

       Finally, the majority relies heavily on the Third Circuit’s decision in Callison v. City of

Philadelphia, 

, 120-21 (3rd Cir. 2005). In Callison, an employee was placed on an

employer’s “Sick Abuse List” after being absent from work twenty-six days in one year, and twelve

days in the next. 

This policy required Callison, while out on sick leave, to notify his

employer when leaving home and upon return. 

placed on this list, Callison was out

on approved FMLA leave for approximately three months. 

The employer reinstated

Callison after his leave, but suspended him pursuant to its Sick Abuse policy for instances in which

he failed to notify his employer when he left and returned to his home. 

that the FMLA afforded him a right to be “left alone” when he was out on

FMLA leave, and that his employer interfered with his rights when it suspended him for failing to

adhere to its policy. 

The Callison court disagreed and found that these suspensions did

not violate the FMLA because the city’s policy “neither prevent[ed] employees from taking FMLA

leave nor discourage[d] employees from taking such leave. It simply ensure[d] that employees do

not abuse their FMLA leave.” 

the majority’s assertion that “the facts of this case are analogous to those of

Callison[,]” Callison, like Edgar, did not address an employee who was out on concurrent paid and

FMLA leave. The majority opinion makes no effort to reconcile its position with the specific

guidance set forth in § 825.207, which explicitly provides that when an employee is out on

concurrent FMLA leave, the employer can require the employee to “satisfy any procedural

requirements of the paid leave policy only in connection with the receipt of such payment.” 29

C.F.R. § 825.207; see also 

(“[T]he FMLA does not permit an employer to

                                                22
Nos. 07-4320, 07-4327
Allen v. Butler County

limit his employee’s FMLA rights by denying them whenever an employee fails to comply with

internal procedural requirements that are more strict than those contemplated by the FMLA.”).

        Notwithstanding this obvious distinction, the majority states that “we adopt the reasoning of

the Third Circuit in Callison, that ‘nothing in the FMLA prevents employers from ensuring that

employees who are on leave from work do not abuse their leave[.]’” Slip op. at 12 (quoting

Callison, 

, 120-21 (3rd Cir. 2005)). The majority appears to reason that employers

must be able to enforce their more restrictive sick leave policy to prevent employees from abusing

leave, even if that means terminating an employee whose leave is covered by the FMLA. This

reasoning is inherently flawed. An employer who wishes to “ensur[e] that employees who are on

leave from work do not abuse their leave[,]” see id, can already do so without violating the FMLA

by “refus[ing] to substitute accrued paid leave.” See 29 C.F.R. § 825.207. Refusing to pay an

employee on concurrent FMLA leave when he would otherwise be paid is a meaningful penalty that

would discourage abuse. Then, after the employee’s twelve weeks of unpaid FMLA leave expired,

if an employee were to take additional non-FMLA leave and continue to abuse that leave, the

employer would be permitted to take action without implicating the FMLA. What the employer

cannot legally do under the FMLA and 29 C.F.R. § 825.207 is fire the employee for violations of the

employer’s more stringent policy while he is on FMLA leave.

        For all of these reasons, the County would plainly violate the FMLA if it terminated Allen,

at least in part, for failing to call in on a daily basis, and the majority’s conclusions to the contrary

are completely unsupported. It is therefore inappropriate to remand with orders that the district court

grant summary judgment to the County, and I dissent as to the majority’s holding in that regard.

                                                   23
Nos. 07-4320, 07-4327
Allen v. Butler County

                                                II.

        The majority opinion also completely disregards material factual disputes pertaining to

whether Allen was fired for reasons related to the exercise of his FMLA rights. Because of these

genuine issues of material fact, I believe it would be inappropriate to grant summary judgment to

either party in this case.

        The FMLA prohibits qualifying employers from “interfer[ing] with, restrain[ing], or

deny[ing] the exercise of or the attempt to exercise, any right provided under th[e] [FMLA].” 29

U.S.C. § 2615(a)(1). To prevail under a FMLA interference theory, which is the theory pursed by

Allen, the employee must establish:

                (1) he is an “[e]ligible employee,” 29 U.S.C. § 2611(2);

                (2) the defendant is an “[e]mployer,” 29 U.S.C. § 2611(4);

                (3) the employee was entitled to leave under the FMLA, 29 U.S.C. §

                2612(a)(1);

                (4) the employee gave the employer notice of his intention to take

                leave, 29 U.S.C. § 2612(e)(1); and

                (5) the employer denied the employee FMLA benefits to which he

                was entitled.

. The first four elements are not contested by the parties. However, the

parties disagree as to whether the County denied Allen FMLA benefits to which he was entitled.



                                                24
Nos. 07-4320, 07-4327
Allen v. Butler County

        Allen can establish that he was denied FMLA benefits if he can prove that he was disciplined

or terminated, at least in part, because he exercised his FMLA rights. See 

In a case like

this, where the employer-employee relationship has broken down and when an employee has already

taken leave on multiple occasions for arguably minor health issues, there is a question as to whether

the employer actually dismissed him for the stated reasons, or whether it dismissed him for an

impermissible reason—e.g., because it felt he was an employee who took too much leave. The issue

is one of causation which necessarily involves considerations of pretext. If the County utilized the

alleged disciplinary infractions merely to justify actions that were truly based on protected FMLA

conduct, the employer’s actions violated the FMLA. See 

based only in part on

an absence covered by the FMLA, even in combination with other absences, may still violate the

FMLA.”) (internal quotation marks and citation omitted).

       Reasonable jurors could reach different conclusions with regard to whether Allen was

disciplined and/or terminated, at least in part, for protected FMLA conduct. The County presents

evidence that Allen was actually disciplined for a number of performance issues that were unrelated

to the FMLA or any medical issues. This is part of its “same result anyway” defense. For example,

the County presented evidence that Allen was issued “Pre-Disciplinary Hearing Notices” that

charged him with failing to complete required tasks and with making inappropriate comments about

his supervisor in February 2003; with failing to complete assignments, failing to follow directives,

and exhibiting poor communication skills in June 2003; with failing to provide requested

documentation regarding calibration of required regulatory reports in October 2003; and with

improperly flexing his time in June 2004. The County argues that it was entitled to, and that it did,

                                                 25
Nos. 07-4320, 07-4327
Allen v. Butler County

fire him for reasons completely unrelated to the FMLA. A reasonable jury could credit these

arguments and find in favor of the County, and it was therefore improper to grant partial summary

judgment to Allen on the issue of liability. See 

(clarifying that interference

with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate

reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct).

       Allen, in contrast, presented evidence that he had worked for approximately ten years without

disciplinary action, and that his alleged disciplinary problems did not begin until he began to take

leave for medical issues. He presented evidence that he suffered from valid medical issues, supplied

physician statements documenting these issues, and argued that many of the alleged disciplinary

infractions occurred on the heels of a medical absence from work. In light of this evidence, a jury

could reasonably infer that the County did not approve of Allen’s repeated absences and the amount

of FMLA leave he used, and that these issues were the true cause of his termination. Because the

motivations behind the County’s actions and the truth of the County’s allegations underlying his

disciplinary writeups constitute genuine issues of material fact, the case should have been submitted

to the jury and the majority’s chosen remedy—summary judgment in favor of the County—is

inappropriate. See 

.

       Finally, and importantly, Allen also presented evidence that he was, in fact, fired because of

his failure to call in his absences. Allen’s supervisor stated in his deposition that Allen had been

discharged, at least in part, because he had failed to call in his sick leave on a daily basis. Allen’s

personnel records also state that he was discharged for “violation of a last chance agreement” by

violating a company rule or policy for “improper call in of an absence.” (J.A. at 154.) These were

                                                  26
Nos. 07-4320, 07-4327
Allen v. Butler County

the only reasons provided for Allen’s termination on this form. Further, an unemployment form

completed by the Butler County Auditor provided that the “final event that caused the discharge”

was “6-10-03 improper call-in of an absence. Violated a Last Chance Agreement that was in place

because of attendance problems.” (J.A. at 155.) All of these facts would permit a reasonable jury

to decide that Allen was terminated because he failed to call his absences on a daily basis. As

discussed above, under 29 C.F.R. § 825.207 and the FMLA, an employer cannot legally terminate

an employee for violations of the employer’s more stringent policy while he is on concurrent FMLA

leave. The jury could have properly found that Allen was terminated because he failed to call in sick,

and that his termination on these grounds violated the FMLA.

        In sum, given the contested facts in this case, a reasonable jury could have found for either

Allen or the County. I therefore conclude that summary judgment should not have been entered in

favor of either party and that the district court erred in granting partial summary judgment to Allen.

                                                  III.

        While, for the reasons stated above, I would find that the district court should not have

granted partial summary judgment to Allen, I will also address the path that the district court did take

and why I think it was improper.

        The district court granted partial summary judgment in Allen’s favor, holding that the County

had interfered with Allen’s FMLA rights by terminating his employment based, at least in part, on

his failure to call in to report his absences. The court reserved the issue of damages for trial and

allowed the County to present its “same result anyway” defense at the bifurcated damages portion

of the trial. As part of this defense, the County argued that even if it was improper to terminate Allen

                                                  27
Nos. 07-4320, 07-4327
Allen v. Butler County

based on his failure to call in his absences, it would have fired him for performance issues that were

unrelated to the FMLA.4

       The district court’s decision to bifurcate the trial requires us to assess whether the County’s

“same result anyway” defense was an issue pertaining to liability, or whether it was an issue that

could have properly been resolved at a trial that was limited to the issue of damages. Because this

defense is part and parcel of the liability determination, I conclude that it was improper for the

district court to allow the County to present it in the bifurcated damages trial.

       Prior to trial, Allen filed two motions in limine, arguing that Court should have prohibited

the County from presenting evidence that Allen was not prejudiced by any interference with his

FMLA rights. The district court denied the motions.5 On appeal to this Court, Allen argued that




       4
         As stated above, the County presented evidence that Allen was issued “Pre-Disciplinary
Hearing Notices” that charged him with failing to complete required tasks and with making
inappropriate comments about his supervisor in February 2003; with failing to complete
assignments, failing to follow directives, and exhibiting poor communication skills in June 2003;
with failing to provide requested documentation regarding calibration of required regulatory
reports in October 2003; and with improperly flexing his time in June 2004.
       5
           At a pre-trial motions conference, the district court stated:

                  With regard to the defendants’ motion in limine to exclude evidence of
                  alleged FMLA interferences and damages prior to the Last Chance
                  Agreement, I think that’s well-taken. I think the Last Chance Agreement
                  should be the cutoff point for evidence from either the defendant or the
                  plaintiff. It is what it is. I don’t want to get into a lot of side issues as to
                  whether the Last Chance Agreement was fair or reasonable or there was
                  sufficient progressive discipline prior to it. As I said, it is what it is.

           Mot. Conf. Tr. at 5.

                                                     28
Nos. 07-4320, 07-4327
Allen v. Butler County

the district court abused its discretion when it denied Allen’s motion in limine and admitted evidence

that the County would have discharged Allen for reasons unrelated to the FMLA.

       Allen first argued that the “same result anyway” defense was not admissible to show whether

a party was prejudiced by alleged FMLA interference. He argued that Bachelder v. Am. W. Airlines,

Inc., 

(9th Cir. 2001), is directly on point and compelled a result in his favor. In

Bachelder, the court stated that “there is no room for a . . . pretext analysis when evaluating an

‘interference’ claim under this statute [the FMLA]. . . . [T]he regulations clearly prohibit the use of

FMLA-protected leave as a negative factor at all.” 

       This argument contradicts binding precedent from this circuit and the Supreme Court. This

Court has held, in the context of a FMLA interference claim, that “the FMLA is not a strict-liability

statute” and that employees seeking relief must still “establish that the employer’s violation caused

them harm.” 

(collecting cases). This Court clarified that “interference

with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate

reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” 

Moreover, in Ragsdale v. Wolverine World Wide, Inc., 

, 89 (2002), the Supreme Court

held that a plaintiff asserting a claim based on a violation of the FMLA must demonstrate prejudice

as a result of a defendants alleged violation of the FMLA. The County properly notes that Bachelder

was decided prior to the Supreme Court’s decision in Ragsdale, 

. See Coker v. McFaul,

247 F. App’x 609, 619 (6th Cir. 2007) (noting that Ragsdale effectively overruled Bachelder on the

issue of whether prejudice must be shown in a FMLA claim). Allen’s arguments therefore lack merit



                                                  29
Nos. 07-4320, 07-4327
Allen v. Butler County

under Edgar and Ragsdale, and the “same result anyway” defense was clearly relevant to show

whether a defendant was prejudiced by a FMLA violation.6

        In this case, however, the more important question is when and by whom evidence regarding

the defense should have been considered. The issue of causation is part of Allen’s prima facie claim,

see 

, and therefore, it should have been considered along with other evidence

relating to the County’s liability. Because the issue of liability was resolved in the district court’s

motion for summary judgment, the district court prohibited Allen from presenting evidence about

circumstances surrounding the medical leave that Allen took in the past, and the disciplinary actions

that occurred at or around the same time. See Mot. Conf. Tr. at 5.

        Under those circumstances, the jury was unable to properly assess whether the alleged

disciplinary issues were pretext, and/or whether FMLA-related absences were the true cause of

Allen’s termination. Although the trial was ostensibly limited to the issue of damages, the jury—in

considering the “same result anyway” defense—effectively considered the liability issue anyway.

Because it did so under circumstances in which only the County was permitted to fully set forth its

theory of liability to the jury, the district court’s ruling was improper.


        6
         Allen also argued that the County waived that argument because it did not allege its
defense in its answer to his complaint. This argument lacks merit. In the Sixth Defense of the
County’s answer to the complaint, the County stated that “Plaintiff is estopped from asserting
these claims by his own conduct.” (J.A. at 170.) The Tenth Defense stated, “Any damages
incurred by Plaintiff, which are denied by Defendant, are the direct result of Plaintiff’s own
conduct.” (Id.) These statements were sufficient to give Allen notice of the positions and
defenses of the County, and Allen’s arguments regarding waiver therefore lack merit. See
Blonder-Tongue Lab. v. Univ. of Ill. Found., 

, 350 (1971) (explaining that pleadings
under Fed. R. Civ. P. 8(c) are notice pleadings and are designed to put a party on notice of the
positions and defenses of the opposing party).

                                                  30
Nos. 07-4320, 07-4327
Allen v. Butler County

        Consequently, I conclude that it was improper for the district court to allow the jury to

consider evidence that Allen would have been fired for reasons unrelated to the FMLA in the context

of a bifurcated damages trial, while preventing Allen from presenting evidence pertinent to the same

issue. As stated above, given the contested facts regarding liability, the district court should have

put the entire case, including the issue of liability under the FMLA, before the jury.

                                                IV.

        For the reasons stated above, I disagree with the majority’s decision to remand the case with

instructions to grant summary judgment in favor of the County. Instead, I would reverse the district

court’s grant of partial summary judgment to Allen, and would remand the case for a jury trial as to

all issues. I therefore respectfully dissent.




                                                 31