     Case: 16-11174   Document: 00513946985     Page: 1   Date Filed: 04/10/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                            United States Court of Appeals
                                                                     Fif h Circuit
                                 No. 16-11174                      FILED
                                                               April 10, 2017
                                                              Lyle W. Cayce
LONNY ACKER,                                                       Clerk

             Plaintiff - Appellant

v.

GENERAL MOTORS, L.L.C.,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Northern District of Texas


Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Appellant Lonny Acker is a General Motors, L.L.C. (“GM”) employee who
was approved for intermittent Family and Medical Leave Act (“FMLA”) leave
but on several occasions was absent from work and did not follow company
protocol for requesting FMLA leave. He suffered several weeks of disciplinary
unpaid layoff. He sued GM for FMLA interference and retaliation and for
disability discrimination under the Americans with Disabilities Act (“ADA”)
and the Texas Commission on Human Rights Act (“TCHRA”). The district
court entered summary judgment for GM. We AFFIRM, principally because
the FMLA and accompanying regulations require employees to follow their
    Case: 16-11174    Document: 00513946985     Page: 2   Date Filed: 04/10/2017



                                 No. 16-11174
employer’s “usual and customary” procedures for requesting FMLA leave
absent “unusual circumstances,” 29 C.F.R. § 825.303(c).
                              BACKGROUND
      Acker began working for GM in the fall of 2000 at its automobile plant
in Kokomo, Indiana. In summer 2014, he voluntarily transferred to the GM
assembly plant in Arlington, Texas. He is an electrician who typically works
third shift. Acker suffers from acute iron-deficiency anemia that sometimes
causes him to experience blackouts, grayouts, heart palpitations, and fatigue.
As a consequence, Acker was certified for intermittent medical leave under the
FMLA by his physician.
      GM has a detailed attendance policy.          The product of collective
bargaining between GM and the International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, this attendance
policy is codified in what is known as “Document No. 8—Memorandum of
Understanding—Special Procedure for Attendance” (“Doc. 8”). As a current
electrician covered by the collective bargaining agreement, Acker is subject to
Doc. 8.
      For an unplanned absence, the collective bargaining agreement simply
requires employees to notify GM at least thirty minutes before the shift starts.
Failure to call by the deadline is considered an “instance” under Doc. 8, unless
the employee can explain the untimeliness satisfactorily to management.
When absences are unexcused, GM allocates up to eight hours per instance of
that employee’s “Vacation Restricted” hours to each hour that the employee
was absent.    Under this arrangement, employees are permitted up to five
“instances” of unexcused absence before they become subject to discipline
under the policy. Acker testified that he understood this use of “Vacation
Restricted” time as a “free pass.” After the “free” absences are used up, Doc. 8
imposes “Attendance Improvement Steps” for additional unexcused absences
                                       2
    Case: 16-11174       Document: 00513946985    Page: 3   Date Filed: 04/10/2017



                                   No. 16-11174
through a six-step program that moves from two written warnings to unpaid
disciplinary layoff to termination.
         GM also has a policy for requesting FMLA leave.           Union benefit
representatives at each GM facility assist employees with FMLA leave
requests. Employees must make an initial request for FMLA leave with GM’s
Benefits & Services center, administered by third-party vendor Sedgwick
Claims Management Services, Inc. (“Sedgwick”). Once an employee has
requested intermittent FMLA leave, Sedgwick sends the employee a letter
reiterating GM’s policies for requesting and taking leave.         This policy is
described in an employee letter as follows:
         If you have requested intermittent leave, you are required to report any
         time taken under the Family and Medical Leave Act (FMLA), at least 30
         minutes PRIOR to the start of your normal scheduled work shift, by
         calling the GM Absence Call In Line [redacted] and selecting the “FMLA”
         option when prompted (option #8). You are also required to call the GM
         Benefits & Services Center at [redacted] by the end of your normally
         scheduled work shift to report your FMLA absence. When calling, select
         the prompt for “FMLA”.

Acker testified that he was familiar with this procedure and received a packet
including this letter.
     By September 2014, Acker testified, he had used all of his “free pass”
days. In mid-November 2014, Acker contacted Sedgwick to request FMLA
leave.     Acker received instruction from Sedgwick to obtain a medical
certification by November 28, and he complied. On December 9, Sedgwick
notified him that he was approved for intermittent FMLA leave from
November 11, 2014 to May 11, 2015.            Nevertheless, he began receiving
discipline for several unapproved absences according to GM’s procedures.
         The record is undisputed concerning the disciplinary procedure GM
followed and the facts underlying the discipline. Acker was absent from work
on September 29 and received his first written disciplinary warning under Doc.
                                         3
    Case: 16-11174    Document: 00513946985    Page: 4    Date Filed: 04/10/2017



                                No. 16-11174
8 on October 7. Acker testified that he did not request FMLA leave for the
September 29 absence. Acker was absent a month later, on October 30, and
was disciplined with a second written warning a day later. Acker testified that
he did not request FMLA leave for this absence, either.
      Acker was absent again November 12, 13, and 14, which were counted
as two “instances” of unexcused absence under GM’s policy. Combined with
the first two unexcused absences, Acker became subject to two weeks’ unpaid
suspension as a disciplinary layoff.   Acker contacted Sedgwick to request
FMLA leave for the November 12 and 13 absences, and his request was
approved by Sedgwick. When GM was made aware of this approval, GM
rescinded its disciplinary action for November 12 and 13. However, Acker
testified that, for the November 14 absence, he failed to call in 30 minutes
before his shift began and missed the FMLA absence call-in time by over an
hour. For this November 14 default, GM treated the first week of the earlier
disciplinary layoff, which Acker had already undergone, as discipline pursuant
to Doc. 8.
      Acker was also absent on November 22 and 23. Phone records produced
by Acker confirm that none of his three calls to the GM shift absence line were
timely. Acker was issued another disciplinary layoff with two weeks of unpaid
suspension for these unexcused absences, in line with the Doc. 8 policy of
progressive discipline.
      Acker was absent again on December 6, 7, and 8.          His absence for
December 7 was approved because Acker timely called both the GM absence
line and the GM Benefits & Services line. While Acker did contact the GM
absence line for December 6 and December 8, he failed to contact the Benefits
& Services line in time on both occasions. Thus on January 14, 2015, Acker
was denied FMLA coverage for both days and issued a disciplinary layoff under
GM policy, this time a 30 day unpaid suspension. Although the Doc. 8 policy
                                       4
    Case: 16-11174     Document: 00513946985     Page: 5   Date Filed: 04/10/2017



                                  No. 16-11174
required Acker’s termination for these additional unexcused absences, GM
retained him with an opportunity to correct his attendance issues. The last
disciplinary action GM had to take with respect to Acker’s attendance was on
January 14.
      Since February 2015, Acker testified, he has taken more than 30 days of
intermittent FMLA leave and managed to timely call the GM Absence and
Benefits & Services lines according to the collective bargaining agreement.
Nevertheless, Acker filed suit against GM in September 2015 for damages
concerning the unpaid suspensions. After discovery, GM moved for and was
granted summary judgment by the district court. Acker timely appealed.
                          STANDARD OF REVIEW
      “Summary judgment is required ‘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.’” Lawrence v. Fed. Home Loan Mortg. Corp., 808 F.3d 670,
673 (5th Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). Summary judgment cannot
be defeated through “[c]onclusional allegations and denials, speculation,
improbable     inferences,   unsubstantiated      assertions,    and    legalistic
argumentation.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
                                 DISCUSSION
      Acker raises three issues on appeal. First, regarding his FMLA
interference claim, he contends that his calls to GM and the Benefits &
Services lines were sufficient to raise a genuine issue of material fact as to
whether he provided reasonable notice of his need for unplanned FMLA leave.
Second, he claims that the disciplinary layoffs were in retaliation for exercising
his FMLA rights. Third, he argues that his request for FMLA leave was also
a request for a reasonable accommodation for a disability under the ADA and
TCHRA, and that the disciplinary layoffs thus also constituted disability
discrimination.
                                        5
    Case: 16-11174     Document: 00513946985     Page: 6   Date Filed: 04/10/2017



                                  No. 16-11174
      A. FMLA Interference
      To prove an interference claim, a plaintiff “must at least show that [the
defendant] interfered with, restrained, or denied [his] exercise or attempt to
exercise FMLA rights, and that the violation prejudiced [him].” Bryant v. Tex.
Dep’t of Aging & Disability Servs., 781 F.3d 764, 770 (5th Cir. 2015) (quoting
Cuellar v. Keppel Amfels, L.L.C., 731 F.3d 342, 347 (5th Cir. 2013)).         An
“interference claim merely requires proof that the employer denied the
employee his entitlements under the FMLA.” Stallings v. Hussmann Corp.,
447 F.3d 1041, 1051 (8th Cir. 2006).
      While the employee has a right to take leave under the FMLA, the
employee must give his employer notice of his intention to take leave in order
to be entitled to it. See 29 U.S.C. § 2612(e)(1) (“Requirement of notice”); (2)
(“Duties of employee”). See also 29 C.F.R. § 825.303. When the need for leave
is foreseeable, the employee generally “must provide the employer at least 30
days advance notice before FMLA leave is to begin.” 29 C.F.R. § 825.302(a). If
30 days’ notice is not practicable, “notice must be given as soon as practicable.”
Id. In all instances, “an employee must comply with the employer’s usual and
customary notice and procedural requirements for requesting leave, absent
unusual circumstances.” Id. § 825.302(d).        “Where an employee does not
comply with the employer’s usual notice and procedural requirements, and no
unusual circumstances justify the failure to comply, FMLA–protected leave
may be delayed or denied.” Id. This regulation “explicitly permits employers
to condition FMLA-protected leave upon an employee’s compliance with the
employer’s usual notice and procedural requirements, absent unusual
circumstances.” Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 614 (6th
Cir. 2013).
      Even when an employee’s need for leave is unforeseeable, the regulations
make clear the employee’s duty to comply with the employer’s policy. “When
                                        6
    Case: 16-11174    Document: 00513946985        Page: 7     Date Filed: 04/10/2017



                                    No. 16-11174
the need for leave is not foreseeable, an employee must comply with the
employer’s usual and customary notice and procedural requirements for
requesting leave, absent unusual circumstances.”             29 C.F.R. § 825.303(c).
“[A]n employer generally does not violate the FMLA if it terminates an
employee for failing to comply with a policy requiring notice of absences, even
if the absences that the employee failed to report were protected by the FMLA.”
Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1008–09 (10th Cir. 2011). See
also Bacon v. Hennepin Cty. Med. Ctr., 550 F.3d 711, 715 (8th Cir. 2008)
(“Employers who enforce [call-in] policies by firing employees on FMLA leave
for noncompliance do not violate the FMLA.”).
      An employer may thus require that an employee hew to the employer’s
usual and customary procedures for requesting FMLA leave.                  Discipline
resulting from the employee’s failure to do so does not constitute interference
with the exercise of FMLA rights unless the employee can show unusual
circumstances. “Formal notice-of-absence policies serve an employer’s
legitimate business interests in keeping apprised of the status of its employees
and ensuring that it has an adequate workforce to carry out its normal
operations.” Twigg, 659 F.3d at 1009; Goff v. Singing River Health Sys.,
6 F. Supp. 3d 704, 711 (S.D. Miss. 2014) (summary judgment is appropriate in
FMLA case without evidence of unusual circumstances excusing employee’s
failure to call employer timely).
      It is undisputed that Acker’s phone records show he failed to call in
timely under GM’s procedure on the dates for which he received disciplinary
layoff: November 14, 22, 23, and December 6 and 8. Acker cannot rely on his
deposition testimony, inconsistent with phone records that he described as the
“universe” of his calls during the relevant period, to create a fact issue on
timeliness. Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir. 2004) (“vague,
self-serving statements” are “not sufficient to raise a genuine issue of material
                                         7
    Case: 16-11174     Document: 00513946985       Page: 8   Date Filed: 04/10/2017



                                    No. 16-11174
fact”); see also Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379 (5th Cir.
2010). Thus, in order to establish FMLA interference, Acker has to show that
for each of these non-FMLA-approved absences, unusual circumstances
prevented him from following the union-negotiated procedures. This he has
not done.
      Acker testified that his disability causes him to experience severe
disorientation, blackouts, grayouts, heart palpitations, and extreme fatigue
when in the acute phase, and that his disability can reach the acute phase
suddenly and could constitute a sudden medical issue or emergency.              He
offered no factual support, however, that he reached the acute stage or
experienced a medical emergency on the days in question. Indeed, he testified
that he was too “dizzy” to follow GM’s call-in procedure only on November 14,
but he was given FMLA leave and was not disciplined under Doc. 8 for that
absence. He did not explain why “unusual circumstances” left him capable of
calling one line, but not the other: on November 22, December 6, and December
8, Acker timely called the GM absence line, but failed to call the GM Benefits
& Services line. There is no proof that unusual circumstances arising from his
condition prevented him from complying with GM’s call-in policy with respect
to one line but not the other.
      Relying on Saenz v. Harlingen Med. Ctr., L.P., 613 F.3d 576 (5th Cir.
2010) as well as Millea v. Metro-North R.R. Co., 658 F.3d 154 (2d Cir. 2011),
Acker argues that failure to comply with an employer’s usual and customary
procedures cannot be grounds for discipline when the employee provides
“reasonable” notice of an unforeseen absence. He thus argues that there is a
fact issue whether his (untimely) phone calls provided reasonable notice to GM
irrespective of company policies.
      Acker’s reliance on these cases is misplaced. First, the holdings in each
of those cases are predicated on outdated, materially different regulations. The
                                         8
     Case: 16-11174       Document: 00513946985         Page: 9    Date Filed: 04/10/2017



                                      No. 16-11174
Sixth Circuit noted the material changes to the FMLA regulations that went
into effect on January 16, 2009. See Srouder, 725 F.3d 608. Based on the
previous regulations, the Sixth Circuit had held 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.” Id. at 613–614
(citing Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713 (6th Cir. 2003). But the
revised regulations explicitly allow employers to condition FMLA leave on
following the employer’s policy. Srouder, 725 F.3d at 614. Indeed, this court
in Saenz acknowledged that the post-2009 regulations, if applicable, could have
required summary judgment for the employer:
       the 2009 revisions to the FMLA regulations governing notice should not
       apply to the instant case . . . the most salient regulatory change—the
       revisions to 29 C.F.R. § 825.303—arguably increases the duties imposed
       upon employees seeking FMLA leave. Were we to apply the new
       regulations, [the employer] might very well be entitled to summary
       judgment . . . we decline to retroactively apply the new regulations, and
       all citations to the governing FMLA regulations refer to the pre-2009
       Code of Federal Regulations edition.

Saenz, 613 F.3d at 582 n.9. The new regulations control the standard for this
case, and Acker has not raised a fact issue for FMLA interference. 1
       B. FMLA Retaliation
       To prove FMLA retaliation, the employee must demonstrate: “1) he was
protected under the FMLA; 2) he suffered an adverse employment action; and
3) he was treated less favorably than an employee who had not requested leave
under the FMLA or the adverse decision was made because he sought


       1 Likewise Millea involved an incident in 2006, three years before the material change
in the regulations. See 658 F.3d at 159–60 (describing the relevant incident in 2006). In
addition, that case is factually distinct because unlike here, where Acker did not follow the
timing requirements of his employer’s FMLA request policy, the employer in Millea “received
timely, although indirect, notice of Millea’s use of FMLA leave.” Id.
                                             9
    Case: 16-11174        Document: 00513946985          Page: 10     Date Filed: 04/10/2017



                                       No. 16-11174
protection under the FMLA.” Mauder v. Metro. Transit Auth. of Harris Cty.,
Tex., 446 F.3d 574, 583 (5th Cir. 2006).               The third element requires the
employee to show “there is a causal link” between the FMLA-protected activity
and the adverse action. Richardson v. Monitronics Int’l, Inc., 434 F.3d 327,
332 (5th Cir. 2005).
       Acker cannot make a prima facie case.                He has not shown how his
disciplinary leave was caused by his attempts to seek protection under the
FMLA instead of his failure to follow GM’s attendance and absence approval
process. Acker is still employed by GM. He has taken more than 30 days of
intermittent FMLA leave since his last disciplinary layoff by following GM’s
call-in procedure. It is undisputed that GM’s policy should have resulted in
Acker’s termination for his absence on December 6, but GM offered Acker the
opportunity to correct his attendance problems. These undisputed facts belie
any casual connection between his claimed adverse action and his attempt to
seek FMLA leave.
       C. ADA/TCHRA
       Acker also argues that in disciplining him for violation of the Doc. 8
procedures, GM failed to accommodate his disability by means of FMLA leave.
He contends that his requests for FMLA leave, although made outside of the
process GM provided, were simultaneously requests for a reasonable
accommodation under the ADA, and concomitantly, the TCHRA. 2                            Acker
argues that because a request for medical leave generally is a request for an
accommodation in some instances, a request for FMLA leave is also a request




       2 The Texas Supreme Court has held that the TCHRA can be interpreted in lockstep
with the federal ADA. By adopting the TCHR, “the Legislature intended to correlate state
law with federal law in employment discrimination cases . . . Therefore, we look to federal
law to interpret the Act’s provisions.” AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008)
(quotations and citations omitted).
                                              10
   Case: 16-11174     Document: 00513946985     Page: 11   Date Filed: 04/10/2017



                                 No. 16-11174
under the ADA. The district court disagreed and held that Acker did not make
a request for a reasonable accommodation.
      Employees who require accommodation due to a disability are
responsible for requesting a reasonable accommodation. See Griffin v. United
Parcel Serv., Inc., 661 F.3d 216 (5th Cir. 2011) (quoting E.E.O.C. v. Chevron
Phillips Chem. Co., L.P., 570 F.3d 606, 621 (5th Cir. 2009)). However, a request
for FMLA leave is not a request for a reasonable accommodation under the
ADA. “The ADA and the FMLA have divergent aims, operate in different ways,
and offer disparate relief.” Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir.
2001). “FMLA leave is not a reasonable accommodation under the ADA; rather
it is a right enforceable under a separate statutory provision.” Harville v. Tex.
A&M Univ., 833 F. Supp. 2d 645, 661 (S.D. Tex. 2011) (citing Trevino v. United
Parcel Serv., No. 3:08–CV–889–B, 2009 WL 3423039, *12 (N.D.Tex. Oct. 23,
2009)).
      Textual comparison of the FMLA with the ADA demonstrates why
requesting FMLA leave alone is not a request for an ADA reasonable
accommodation. An employee who requests FMLA leave asserts he 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)
(“Entitlement to leave”). A request for a reasonable accommodation under the
ADA is a claim that the employee “with or without reasonable accommodation,
can perform the essential functions of the employment position that such
individual holds or desires.”   42 U.S.C. § 12111(8) (“Definitions: Qualified
Individual”). See Capps v. Mondelēz Global LLC, 147 F. Supp. 3d 327, 340–41
(E.D. Penn. 2015) (“an employee who requests leave does not clearly
communicate to her employer that she is disabled and desires an
accommodation.”) (quoting Rutt v. City of Reading, Pa., No. CIV.A. 13–4559,
2014 WL 5390428, *4 (E.D. Pa. Oct. 22, 2014). Thus, an employee seeking
                                       11
   Case: 16-11174    Document: 00513946985      Page: 12   Date Filed: 04/10/2017



                                 No. 16-11174
FMLA leave is by nature arguing that he cannot perform the functions of the
job, while an employee requesting a reasonable accommodation communicates
that he can perform the essential functions of the job.
      Acker has not demonstrated any dispute of material fact that his
untimely phone calls could have sought a reasonable accommodation under the
ADA. He failed to follow GM’s absence procedure, was disciplined, and has
successfully followed GM’s absence procedure since. As a consequence, Acker
has not proved how GM denied him any accommodation.
                               CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




                                      12
