govinfo:USCOURTS-moed-4_25-cv-00168-0

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MISSOURI 
EASTERN DIVISION 
 
 
Memorandum and Order 
Byron Green claims that Clement, his former employer, violated federal employment 
laws when it terminated him during his intermittent medical leave. But Clement tells a different 
story. In its version, Clement fired Green not because of his medical leave, but because he 
repeatedly logged time for periods he was not at work. Believing Green’s “time theft” to be 
extensive, Clement countersued him. Both parties move for summary judgment, and the Court 
sorts out these competing motions below. 
I. Background 
A. Factual background 
The Court finds the following facts undisputed for purposes of the parties’ competing 
motions for summary judgment, unless otherwise noted. Penuel Raj Clement is the owner of 
Clement Auto Group, a company that operates several automobile dealerships in Missouri, 
including Clement Hyundai. Doc. 1 at ¶¶ 9–10; doc. 44 at ¶¶ 1–2; doc. 49 at 5 (The Court cites 
to page numbers as assigned by CM/ECF.). Byron Green began working for Clement Hyundai 
as a service advisor in February 2022. Doc. 46 at ¶ 1; doc. 48 at ¶ 1; doc. 53 at ¶ 1. 
BYRON K. GREEN, 
 
 Plaintiff, 
 
 v. 
 
CLEMENT AUTO GROUP, LLC et al., 
 
 Defendants. 
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As a service advisor, Green’s job duties included communicating and interacting with 
customers regarding automobile repairs, speaking with technicians, reviewing repair orders, and 
handling internal service department coordination. Doc. 48 at ¶ 3; doc. 53 at ¶ 3; doc. 54 at ¶ 15; 
doc. 57 at ¶ 15; see also doc. 49-1. Green’s role “required on-site duties at the dealership.” Doc. 
46 at ¶ 2; see also doc. 48 at ¶ 2; doc. 53 at ¶ 2. And he reported to his supervisor, Christopher 
Bone, who was responsible for reviewing and approving his time. Doc. 46 at ¶ 17; doc. 48 at 
¶ 21; doc. 53 at ¶ 21. Bone could also modify employee time entries in Paycom (an online 
payroll software) and did so for Green on occasion. Doc. 54 at ¶ 20; doc. 57 at ¶ 20. 
Green received, signed, and acknowledged the employee handbook Clement gave him. 
Doc. 46 at ¶ 3; doc. 48 at ¶ 4; doc. 53 at ¶ 4. The handbook required employees to clock in and 
out using Paycom. Doc. 48 at ¶ 5; doc. 53 at ¶ 5; see also doc. 46 at ¶¶ 4–6. It also “contain[ed] 
timekeeping policies regarding clock-in and clock-out procedures, including guidance 
concerning scheduled shift times.” Doc. 46 at ¶ 4. For example, the handbook instructed 
employees to clock in or out within five minutes of their scheduled shifts. Doc. 48 at ¶ 6; doc. 
53 at ¶ 6. And it “provide[d] that violations of timekeeping policies may result in disciplinary 
action, including termination.” Doc. 46 at ¶ 5; see also doc. 48 at ¶ 8; doc. 53 at ¶ 8. 
Green recorded his time through the Paycom app on his phone, doc. 46 at ¶ 6, and he was 
able to clock in and out remotely—i.e., “while off of dealership property,” doc. 46 at ¶ 7; see 
also doc. 48 at ¶ 22; doc. 53 at ¶ 22. Green admits that he clocked out remotely “[o]n occasion.” 
Doc. 46 at ¶ 8. The employee handbook notes that clocking in and out at a location other than 
the dealership violated company policy. Doc. 48 at ¶ 23; doc. 53 at ¶ 23. 
On December 4, 2023, Green received a rectal cancer diagnosis that required him to 
undergo radiation treatments. Doc. 46 at ¶¶ 9, 13–14; doc. 49-7 at 4. After receiving this 
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diagnosis, Green requested intermittent leave from Clement under the Family and Medical Leave 
Act of 1993 (FMLA). Doc. 46 at ¶¶ 10–11; doc. 48 at ¶ 10; doc. 53 at ¶ 10. The parties agree 
that FMLA leave is generally unpaid. Doc. 48 at ¶ 13; doc. 53 at ¶ 13. Green’s physician 
certified this leave “beginning December 4, 2023 through approximately April 1, 2024.” Doc. 
46 at ¶ 10; see also doc. 48 at ¶ 11; doc. 53 at ¶ 11. Green’s FMLA paperwork estimated that 
Green would need to be intermittently absent from work “five times per week,” with each 
occurrence lasting “approximately 8 hours.” Doc. 48 at ¶ 12; see doc. 53 at ¶ 12. Clement 
became aware of Green’s cancer diagnosis upon receiving his FMLA paperwork in December 
2023. Doc. 49 at 4–5; doc. 49-5 at 1, 6. In attempting to state a claim for interference with his 
FMLA rights, Green alleges differently in his Complaint. See doc. 1 at ¶¶ 27–31. But at the 
summary-judgment stage, Green fails to proffer any admissible evidence to support his claim.
1 
The Court accordingly finds as undisputed fact that Clement learned of Green’s diagnosis in 
December 2023 and that Green has abandoned this claim. See Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 257 (1986) (“[T]he plaintiff must present affirmative evidence in order to defeat a 
properly supported motion for summary judgment.”). 
Clement noticed something curious about Green’s time entries. Green admits attending 
medical appointments in December 2023, doc. 46 at ¶ 14, and undergoing radiation treatments in 
 
1 Although Green purported to verify his Complaint, see doc. 1 at 13–14, the Court does not treat the Complaint as 
verified, either as an affidavit or a declaration, because it does not meet the requirements for either. Green did not 
attest to the facts before a notary or other person authorized to administer an oath, nor did he attest to the facts under 
penalty of perjury. See id.; 28 U.S.C. § 1746; Roberson v. Hayti Police Dep’t, 241 F.3d 992, 994–95 (8th Cir. 2001) 
(“A plaintiff’s verified complaint is the equivalent of an affidavit for purposes of summary judgment, and a 
complaint signed and dated as true under penalty of perjury satisfies the requirements of a verified complaint.” 
(citation modified)); Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006) (noting that an affidavit is “a 
statement reduced to writing and the truth of which is sworn to before someone who is authorized to administer an 
oath” (citation omitted)); see also Zavala-Alvarez v. Darbar Mgmt., Inc., 617 F. Supp. 3d 870, 878 n.1 (N.D. Ill. 
2022) (“A document doesn’t count as an affidavit or declaration simply because of its title. Here, M. Salim Moten’s 
statement was not sworn before an officer authorized to administer an oath, so it is not an affidavit.” (citation 
omitted)); 10B Wright & Miller’s Federal Practice & Procedure § 2738 (4th ed. 2026). 
 
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January and February 2024, id. at ¶ 13. Yet despite Clement’s granting him intermittent FMLA 
leave, id. at ¶ 11, “[n]o FMLA leave entries appear in [Green’s] Paycom time records between 
December 5, 2023 and March 15, 2024,” id. at ¶ 12; see also doc. 48 at ¶ 18; doc. 53 at ¶ 18. 
Instead, Green’s time records show that he logged time during this period. Doc. 46 at ¶ 15; see 
also doc. 48 at ¶ 19; doc. 53 at ¶ 19. On certain dates, Green’s Paycom records show clock-in 
times before 8:00 a.m., and his medical records reflect appointments on those same dates at 
approximately 8:00 a.m. Doc. 46 at ¶ 16. 
On March 15, 2024, Clement terminated Green’s employment. Id. at ¶ 18; doc. 48 at 
¶ 24; doc. 53 at ¶ 24. Clement designated Green’s termination as one for “gross misconduct.” 
Doc. 46 at ¶ 19; doc. 48 at ¶ 26; doc. 53 at ¶ 26. Based on this designation, Clement notified 
Green that he was ineligible for coverage under the Consolidated Omnibus Budget 
Reconciliation Act of 1985 (COBRA). Doc. 46 at ¶ 20; doc. 48 at ¶ 26; doc. 53 at ¶ 26. 
B. Procedural background 
Green sued Clement in February 2025. See doc. 1. He brings claims for (1) FMLA 
interference, id. at ¶¶ 50–59; (2) FMLA retaliation, id. at ¶¶ 60–63; and (3) failure to provide 
COBRA coverage, id. at ¶¶ 65–71. For relief, Green seeks monetary damages, attorneys’ fees 
and litigation costs, and pre- and post-judgment interest. Id. at 12. Defendants filed their 
answers in April 2025. See docs. 20–21. 
The Court held a Rule 16 Conference in May 2025, doc. 29, and entered a case-
management order, doc. 30. After the parties completed alternative dispute resolution, see docs. 
32–36, Clement moved for leave to file a counterclaim against Green, doc. 38. The parties 
briefed this issue, docs. 40, 42, and the Court permitted Clement to file a counterclaim, doc. 43. 
In the counterclaim, Clement sues for (1) breach of contract, doc. 44 at ¶¶ 26–30; (2) unjust 
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enrichment, id. at ¶¶ 31–38, and (3) common-law fraud, id. at ¶¶ 39–52, all based on Green’s 
alleged time theft. Green filed his answer to the counterclaim in January 2026. Doc. 45. 
Clement moved for summary judgment on all of Green’s claims in February 2026. Docs. 
47–49. On the same day, Green moved for partial summary judgment on Clement’s fraud claim. 
Docs. 50–51. The parties have fully briefed these motions, docs. 52–59, so they are ripe for the 
Court’s review. 
II. Standard 
Rule 56(a) of the Federal Rules of Civil Procedure provides 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.” A dispute is genuine “if the evidence 
is such that it could cause a reasonable jury to return a verdict for either party.” Massey-Diez v. 
Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1157 (8th Cir. 2016) (citation omitted). 
And a fact is material “if its resolution affects the outcome of the case.” Id. (citation omitted). 
In ruling on a motion for summary judgment, the Court is required “to view the evidence 
in the light most favorable to the non-moving party” and must “give that party the benefit of all 
reasonable inferences to be drawn from the underlying facts.” AgriStor Leasing v. Farrow, 826 
F.2d 732, 734 (8th Cir. 1987). The moving party bears the initial burden of showing both the 
absence of a genuine issue of material fact and entitlement to judgment as a matter of law. 
Anderson, 477 U.S. at 250; Fed. R. Civ. P. 56(a). 
In response to the proponent’s showing, the opponent’s burden is to “come forward with 
‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. 
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). Importantly, “the 
mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the 
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dispute must be outcome determinative under prevailing law.” Corkrean v. Drake Univ., 55 
F.4th 623, 630 (8th Cir. 2022) (citation modified). Self-serving, conclusory statements without 
support are insufficient to defeat summary judgment. See Armour & Co., Inc. v. Inver Grove 
Heights, 2 F.3d 276, 279 (8th Cir. 1993). Rule 56(c) “mandates the entry of summary judgment, 
after adequate time for discovery and upon motion, against a party who fails to make a showing 
sufficient to establish the existence of an element essential to that party’s case, and on which that 
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 
III. Discussion 
A. Clement’s motion for summary judgment 
Clement moves for summary judgment on all three of Green’s claims. See doc. 47 at 1. 
The Court addresses each claim in turn. 
1. FMLA claims 
The FMLA entitles an employee to “up to twelve workweeks of leave during any twelve-
month period for various medical-related circumstances.” Whittington v. Tyson Foods, Inc., 21 
F.4th 997, 1000 (8th Cir. 2021) (citing 29 U.S.C. § 2612(a)(1)). One such circumstance allows 
the employee to seek leave based on “a serious health condition” that makes him “unable to 
perform the functions of [his] position.” Id. at 1001 (quoting 29 U.S.C. § 2612(a)(1)(D)). The 
employee may take FMLA leave on an intermittent basis if he reaches an agreement with his 
employer. See Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir. 2012) (citing 29 U.S.C. 
§ 2612(b)(1)). 
The Eighth Circuit has varied its description of the types of FMLA claims an employee 
may bring. In some instances, the Eighth Circuit has stated that an employee may bring two 
types of claims: (1) interference claims, “where the employee alleges that the employer denied 
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or interfered with [his] substantive rights under the FMLA,” and (2) retaliation claims, “where 
the employee alleges that the employer discriminated against [him] for exercising [his] FMLA 
rights.” Brandt v. City of Cedar Falls, 37 F.4th 470, 478 (8th Cir. 2022) (citation omitted). In 
other instances, however, it has recognized three types of FMLA claims. See, e.g., Pulczinski v. 
Trinity Structural Towers, Inc., 691 F.3d 996, 1005–06 (8th Cir. 2012). In these situations, the 
description of “interference” claims remains the same (although the Eighth Circuit refers to them 
as “entitlement” claims). See id. But the Eighth Circuit then distinguishes between “retaliation” 
claims—where an employer takes adverse action against an employee for opposing any practice 
the FMLA makes unlawful—and “discrimination” claims, where an employer takes adverse 
action against an employee for exercising his FMLA rights. See id. 
Green styles his FMLA claims as “interference” and “retaliation” claims, seeming to 
adhere to the descriptions the Eighth Circuit uses in Brandt. See doc. 1 at ¶¶ 50–63. The Court 
recognizes that these same claims might be called “entitlement” and “discrimination” claims 
under the Eighth Circuit’s framework in Pulczinski. Nevertheless, because the same standards 
apply regardless of the particular labels the Court chooses, see Brown v. Diversified Distrib. Sys., 
LLC, 801 F.3d 901, 907–10 (8th Cir. 2015), the Court refers to Green’s claims the way Green 
does: as “interference” and “retaliation” claims. 
a. Interference claims 
Under 29 U.S.C. § 2615(a)(1), an employer may not “interfere with, restrain, or deny the 
exercise of or the attempt to exercise, any right provided under [the FMLA].” An employer 
violates this section if it “refuses to authorize leave under the FMLA or takes other action to 
avoid responsibilities under the Act.” Brown, 801 F.3d at 907 (citation omitted). For example, 
an employer may not “discourag[e] an employee from using [FMLA] leave.” 29 C.F.R. 
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§ 825.220(b). Nor may the employer attempt to impede the employee’s eligibility by 
transferring the employee to a different worksite, changing the essential functions of the 
employee’s job, or reducing the employee’s hours. Id. The employer also “cannot use the taking 
of FMLA leave as a negative factor in employment actions, such as hiring, promotions[,] or 
disciplinary actions.” Ballato, 676 F.3d at 772 (quoting 29 C.F.R. § 825.220(c)). 
To succeed on an FMLA interference claim, a plaintiff must prove that (1) he was an 
eligible employee; (2) the defendant qualified as an employer under the FMLA; (3) he was 
entitled to FMLA leave; (4) he gave defendant notice of his intent to take FMLA leave; and 
(5) defendant denied him FMLA benefits to which he was entitled. Brandt, 37 F.4th at 478. Put 
differently, the plaintiff bears the initial burden of proof to “show only that he or she was entitled 
to the benefit denied.” Ballato, 676 F.3d at 772. “Even if successful on this front, a claim for 
interference will fail unless the employee also shows that the employer’s interference prejudiced 
[him] as the result of a real, remediable impairment of [his] rights under the FMLA.” Massey-
Diez, 826 F.3d at 1158. And a plaintiff seeking to avoid summary judgment must also show “a 
reasonable likelihood that a rational trier of fact would award damages or find an entitlement to 
injunctive relief.” Brandt, 37 F.4th at 478 (citation modified). Importantly, “[t]he employer’s 
intent is immaterial to an FMLA interference claim.” Massey-Diez, 826 F.3d at 1158. 
Here, the parties do not dispute that Clement is an employer for FMLA purposes or that 
Green was eligible for and entitled to FMLA leave. See doc. 1 at ¶¶ 51–56; doc. 48-6 at 6–7. 
Nor do they dispute that Green gave Clement notice of his intent to take intermittent FMLA 
leave. See doc. 48 at ¶ 10; doc. 53 at ¶ 10. The sole issue, then, is whether Clement denied 
Green FMLA benefits to which he was entitled. 
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i. Terminating Green’s employment 
Green alleges that Clement interfered with the exercise of his FMLA rights by 
“terminating [his] employment” and “fabricating a false pretextual reason” for doing so. Doc. 1 
at ¶ 57(d)–(e). “[E]very discharge of an employee while [he] is taking FMLA leave interferes 
with an employee’s FMLA rights.” Stallings v. Hussmann Corp., 447 F.3d 1041, 1050–51 (8th 
Cir. 2006) (citation omitted). But “the mere fact of discharge during FMLA leave by no means 
demands an employer be held strictly liable for violating the FMLA’s provision of interfering 
with an employee’s FMLA rights.” Id. at 1051 (citation omitted). So, if the plaintiff makes a 
showing of interference, “the burden shifts to the employer to prove there was a reason unrelated 
to the employee’s exercise of FMLA rights for terminating the employee.” Ballato, 676 F.3d at 
772. And “[i]f the employer can prove that it would have terminated the employee had the 
employee not exercised FMLA rights, the employer will not be liable.” Id. (citation omitted); 
see also Stallings, 447 F.3d at 1051 (“[W]here an employer’s reason for dismissal is 
insufficiently related to FMLA leave, the reason will not support the employee’s recovery.”). 
Here, the parties agree that Clement terminated Green’s employment during his period of 
intermittent FMLA leave. See doc. 46 at ¶ 10 (noting that “[Green’s] physician certified FMLA 
leave beginning December 4, 2023 through approximately April 1, 2024); id. at ¶ 18 (noting that 
Clement terminated Green’s employment on March 15, 2024). Green has therefore shown 
interference, so the burden shifts to Clement to prove that Green’s termination was unrelated to 
the exercise of his FMLA rights. Ballato, 676 F.3d at 772. 
Clement argues that it fired Green because he engaged in “time theft” by “letting his time 
clock run while he was not working and offsite for FMLA-related purposes.” Doc. 49 at 6. 
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It asserts that Green’s supervisor (Christopher Bone) and another employee (Jay Brown) began 
to “notice[] that [Green] was not physically present on site when the payroll system reflected that 
he was clocked in for work.” Id. at 10–11; see also doc. 49-8 at ¶¶ 29–31 (Bone affidavit); doc. 
49-13 at ¶¶ 14–16 (Brown affidavit). And after “monitor[ing] the situation more closely,” Bone 
and Brown “confirmed that [Green] was repeatedly not present at his place of employment on 
the days that he claimed to be working.” Doc. 49 at 11; see also doc. 49-8 at ¶¶ 29–31; doc. 49-
13 at ¶¶ 14–16. 
Clement provides specific examples of Green’s timecard discrepancies. For example, on 
December 8, 2023, “Green’s timecard reflects that he worked from 7:39 a.m. until 5:43 p.m.” 
Doc. 49 at 9; see doc. 49-6 at 1. But his medical records show that he received an MRI between 
3:16 p.m. and 3:46 p.m. that day, as well as a CT scan at 4:12 p.m. Doc. 49 at 9; doc. 49-7 at 9–
10. Green’s FMLA paperwork also shows that he had medical appointments on December 20, 
2023; December 22, 2023; and January 16, 2024. Doc. 49 at 9; doc. 49-5 at 4; doc. 49-7 at 1–8. 
But “on each of those days, [Green’s] timesheets report he worked full days—even overtime.” 
Doc. 49 at 9; see doc. 49-6 at 2, 4. Green also had several 8:00 a.m. radiation treatments in 
January and February 2024. Doc. 49 at 9; see doc. 49-7 at 1. But his time entries on several of 
those dates—particularly January 17 and February 5, 14, and 26—show clock-in times well 
before 8:00 a.m. See doc. 49 at 9–10; doc. 49-6 at 4–7. And because Green’s appointments 
were “a thirty-minute drive from the dealership,” Clement argues, “it is illogical that [Green] 
began working at the dealership” at his recorded clock-in times “when he had an 8 am [sic] 
radiation treatment 30 minutes away.” Doc. 49 at 9–10. 
Clement maintains that Green’s actions constituted time theft for several reasons. First, 
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Green’s “core job functions of greeting customers and directing them to available mechanics” 
required him to be in-person at the dealership. Id. at 7; see doc. 49-1; see also doc. 46 at ¶ 2. 
Second, the employee handbook instructs employees that failing to accurately clock in and clock 
out according to company policy could result in termination. Doc. 49 at 7; see doc. 49-3 at 5–7; 
see also doc. 46 at ¶ 5. It also admonishes employees that “[f]alsifying time cards is stealing 
from the company,” and that falsifying a time card may result in “immediate dismissal.” Doc. 
49-3 at 7; see doc. 49 at 8. Third, Green “received and acknowledged the Employee Handbook,” 
doc. 49 at 7; see also doc. 46 at ¶ 3; doc. 49-2, and “signed the Service Advisor pay plan which 
states that it is the responsibility of each employee to accurately record time,” doc. 49 at 7; see 
also doc. 49-4. 
Finally, Clement argues that FMLA leave at Clement is unpaid, and that Green was 
aware of this fact because it was stated in both the employee handbook and Green’s FMLA 
paperwork. See doc. 49 at 8; doc. 49-3 at 6 (“It is the policy of Clement Auto Group to grant up 
to 12 weeks of unpaid medical and family leave during any 12-month period, to eligible 
employees, in accordance with the [FMLA].”); doc. 49-5 at 7 (noting that “[s]ome or all of 
[Green’s] FMLA leave [would] not be paid” and indicating that Green did not request to use sick 
time, vacation time, or other PTO during this period). And because FMLA leave at Clement is 
unpaid, Clement asserts, Green “was to report any time off taken for FMLA purposes,” and his 
FMLA time as reflected in Paycom “was then to be deducted from his weekly rate (as a salaried 
employee).” Doc. 49 at 8; see also doc. 49-3 at 5 (noting that “Paycom is the basis by which the 
employee is paid”). Clement therefore concludes that Green “was terminated for blatant and 
continuous time theft in direct violation of . . . express company policies.” Doc. 49 at 7. 
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Green, however, argues that genuine disputes of material fact exist that make summary 
judgment improper. First, he contests the notion that he did not work on the dates Clement 
identifies. Doc. 52 at 2. He instead argues that his radiation treatments “generally lasted only a 
few minutes and that he reported to the dealership and worked after completing those 
treatments.” Id.; see also doc. 52-1 at ¶¶ 15–17. As a result, “he did not miss full workdays 
during the period when he was undergoing radiation therapy.” Doc. 52 at 2; see also doc. 52-1 at 
¶ 18. 
And the medical records Clement cites do not establish otherwise, Green argues, because 
these records “identify only the scheduled appointment times and do not establish how long 
those appointments lasted or whether [Green] returned to work afterward.” Doc. 52 at 3. Nor do 
the lack of service transactions on certain dates establish that Green performed no work, as 
“service advisors perform numerous duties that do not necessarily generate a customer service 
transaction, including communicating with technicians, coordinating repairs, speaking with 
customers about pending work, and handling internal service department matters.” Id. at 6; see 
also doc. 52-1 at ¶¶ 23–26. And further, Jay Brown’s affidavit “does not identify specific dates, 
times, or durations of any alleged absence and therefore does not establish that [Green] did not 
perform work on the dates identified by [Clement].” Doc. 52 at 3. 
Second, Green asserts that he received no financial benefit from the challenged time 
entries because he was “paid a fixed weekly salary during the relevant period.” Id. at 4; see also 
doc. 52-1 at ¶¶ 8, 21–22. Thus, his salary “remained constant regardless of the number of hours 
recorded in Paycom,” so the time entries Clement identifies “could not have resulted in any 
financial gain to [Green].” Doc. 52 at 4. And this undermines Clement’s theory of misconduct, 
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he argues, because “the record contains no evidence that those entries caused [him] to receive 
compensation he otherwise would not have received.” Id. 
Third, Green contends that, because Christopher Bone “reviewed and approved [his] time 
entries during the relevant period,” and had the ability “to enter or modify employee time 
entries,” management “did not consider [Green’s time entries] improper at the time they were 
made.” Id. at 5; see also id. at 3; doc. 52-1 at ¶¶ 10–12. This, in turn, “creates a factual dispute 
regarding whether the entries were knowingly false.” Doc. 52 at 5. 
Finally, Green “testifies that he was terminated without being interviewed or asked to 
explain the time entries at issue,” and that “he was not informed that his time entries were 
considered fraudulent.” Id. at 5; see also doc. 52-1 at ¶¶ 27–29. He argues that this supports an 
inference that Clement “did not conduct a meaningful investigation before terminating [him] for 
alleged misconduct.” Doc. 52 at 6. 
The Court finds that no genuine dispute of material fact exists on this ground. Even 
crediting Green’s assertion that he “did not miss full workdays” because of his radiation 
treatments and “performed work on those days after completing [his] medical appointments,” 
doc. 52-1 at ¶¶ 18, 22, Green still admits to violating company timekeeping policy. Indeed, he 
concedes that, on some of the dates Clement identifies, he “clocked in earlier in the morning 
before leaving for a medical appointment” so that he would not “forget to clock in later in the 
day after returning to the dealership.” Id. at ¶ 20. He does not state that he performed any work-
related tasks between the time he clocked in and the time he returned from his medical 
appointments; he states only that he performed work “after completing those treatments.” Doc. 
52 at 2 (emphasis added); see also doc. 52-1 at ¶ 21 (“I reported to the dealership and performed 
work on those days after completing my medical appointments.”). Nor does he dispute 
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Clement’s argument that his medical appointments occurred at a location 30 minutes away from 
the dealership. See doc. 49 at 9. See generally doc. 52; doc. 52-1. 
Green also recognizes that he “received and acknowledged the Employee Handbook,” 
doc. 46 at ¶ 3; see also doc. 48 at ¶ 4; doc. 53 at ¶ 4, and that the handbook contained 
timekeeping policies, the violation of which could result in termination, doc. 46 at ¶¶ 4–5; see 
also doc. 48 at ¶ 8; doc. 53 at ¶ 8. Thus, even when drawing all reasonable inferences in Green’s 
favor, see AgriStor Leasing, 826 F.2d at 734, the evidence shows that Green logged at least some 
time for periods when he was not at work, in violation of company policy. 
That Green was a salaried employee generally, see doc. 52 at 4–5; doc. 52-1 at ¶¶ 3, 8–9, 
does not move the needle. Green admits that “FMLA leave is generally unpaid.” Doc. 53 at 
¶ 13; see also 29 C.F.R. § 541.602(b)(7) (stating that an employer may pay an employee taking 
intermittent FMLA leave “a proportionate part of [his] full salary for time actually worked”). 
And he does not dispute that Clement’s policy was to “grant up to 12 weeks of unpaid medical 
and family leave,” doc. 49-3 at 6, or that his FMLA paperwork reflected that “[s]ome or all of 
[his] FMLA leave [would] not be paid,” doc. 49-5 at 7. Nor does he counter Clement’s argument 
that he was required “to report any time off taken for FMLA purposes (e.g., doctor’s 
appointments, treatments, recovery days).” Doc. 49 at 8. See generally doc. 52. And as 
discussed above, Green admits to clocking in early and leaving the clock running while he 
attended his morning medical appointments. Doc. 52-1 at ¶¶ 19–21. 
Thus, contrary to Green’s argument, the evidence shows no genuine dispute that Green 
received at least some compensation that he otherwise would not have received. And although 
Green raises new arguments bearing on this issue in his reply in support of his own motion for 
summary judgment, see doc. 59 at 2, the Court declines to address them. See Whittington, 21 
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F.4th at 1002 n.4 (noting that the district court properly disregarded plaintiff’s argument 
“because [he] failed to raise it in either his response in opposition to summary judgment or in his 
initial brief in support of his cross-motion for summary judgment, waiting until his reply brief to 
mention it”). 
Green’s argument that his time entries “were visible to management and approved as part 
of the payroll process,” doc. 52 at 5, is a red herring. Green admits that he received and 
acknowledged the employee handbook, that the handbook contained timekeeping procedures, 
and that the violation of these procedures could result in termination. Doc. 46 at ¶¶ 3–5. He 
then admits to violating the timekeeping procedures by improperly logging his time on multiple 
occasions. See doc. 52-1 at ¶¶ 19–20. Green’s admissions show that Clement had “a reason 
unrelated to [his] exercise of FMLA rights for terminating [him].” Ballato, 676 F.3d at 772. 
And Clement produces contemporaneous evidence via affidavits showing that Clement based its 
termination decision on Green’s time theft. See doc. 49-8 at ¶¶ 29–33 (affidavit of Christopher 
Bone); doc. 49-13 at ¶¶ 14–16 (affidavit of Jay Brown). And while Green argues that these 
affidavits do not “identify specific dates, times, or durations of any alleged absence,” doc. 52 at 
3, he does not challenge the premise that before his termination, his supervisors noticed that he 
was absent from work while being clocked in, see generally id. Nor can he do so, given his prior 
admissions. See doc. 52-1 at ¶¶ 19–20. Green therefore fails to show a genuine dispute of 
material fact on this ground. See Massey-Diez, 826 F.3d at 1157. 
ii. Changing how Green clocked in 
In his Complaint, Green also alleges that Clement interfered with his FMLA rights by 
“moving [him] to a non-functioning clock in/clock out system so that he could not properly clock 
in and out of work, in contrast to how other similarly situated employees of [Clement] were then 
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treated.” Doc. 1 at ¶ 57(c); see also id. at ¶¶ 38–39. But Green does not raise this argument in 
his response to Clement’s motion for summary judgment. See generally doc. 52. Nor does he 
provide any evidence supporting this allegation. See generally docs. 51-1, 51-2, 52-1. “The 
nonmoving party must cite to specific facts in the record demonstrating a genuine issue of fact 
for trial and may not rely solely on allegations.” McElree v. City of Cedar Rapids, 983 F.3d 
1009, 1015 (8th Cir. 2020) (citation omitted). Green therefore fails to show a genuine issue of 
fact on this ground. See id. 
iii. Switching Green’s pay status 
Green also argues that the record “contains contemporaneous evidence linking 
[Clement’s] employment decisions to [Green’s] FMLA status. Doc. 52 at 7–8. This is because, 
in February 2024—during Green’s period of intermittent FMLA leave—Clement presented 
Green with a letter stating that “his compensation would be changed from salary to hourly ‘based 
on [his] FMLA status.’” Id. at 8; see also doc. 52-1 at ¶ 30 (noting same); id. at 6 (letter from 
Clement to Green regarding proposed pay status change). In his declaration, Green states that he 
“did not sign” the letter, doc. 52-1 at ¶ 32, and “did not agree to this proposed change because 
[he] understood that it would reduce [his] weekly compensation,” id. at ¶ 31. Green argues that a 
reasonable jury could view Clement’s letter “as evidence that [Clement was] seeking to alter 
[Green’s] compensation because of his protected medical leave.” Doc. 52 at 8. He further posits 
that this evidence shows that Clement’s “stated justification for termination should not be 
accepted at face value at the summary-judgment stage.” Id. 
Federal law permits an employer to pay an employee taking intermittent FMLA leave “a 
proportionate part of [his] full salary for time actually worked.” 29 C.F.R. § 541.602(b)(7). So 
Clement’s seeking to change Green’s pay status from salary to hourly does not, standing alone, 
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constitute an FMLA violation. Rather, the question is whether the amount Clement offered to 
pay Green ($31 per hour) would constitute a permissible proportionate part of Green’s full 
salary, or whether it would constitute an impermissible reduction in Green’s pay, which would 
make his FMLA leave a “negative factor” in Clement’s employment decision. See Ballato, 676 
F.3d at 772. 
Green maintains that he “typically worked between forty and fifty hours per week” 
during his time as a service advisor with Clement. Doc. 52-1 at ¶ 4. He further avers that he 
“was compensated on a fixed weekly salary of $1,827, in addition to commissions and bonuses 
associated with service department performance.” Id. at ¶ 3. Based on his “weekly salary and 
typical hours worked,” Green asserts that his “effective hourly compensation generally exceeded 
$31 per hour.” Id. at ¶ 7. And he states that his compensation “remained a weekly salary of 
$1,827 through the date of [his] termination.” Id. at ¶ 34. 
But the payroll records Green submits do not bear this out. In reviewing these records, 
the Court does not consider the commission checks Green received, as Green asserts that his 
weekly salary of $1,827 was “in addition to commissions and bonuses.” Id. at ¶ 3. The Court 
also notes that Green does not specify whether the $1,827 per week constituted his gross or net 
salary, so the Court considers both. For each regular two-week pay period, Green received gross 
pay of $3,000, which amounts to $1,500 per week. See doc. 52-1 at 8–15. His net pay was 
therefore less than $1,500 per week. See id. Thus, Green’s evidence does not support his 
assertions regarding his weekly salary, so the Court need not accept these self-serving assertions 
as true. See Smith v. Golden China of Red Wing, Inc., 987 F.3d 1205, 1209 (8th Cir. 2021) (“It is 
black letter summary judgment law that a conclusory, self-serving affidavit will not defeat an 
otherwise meritorious summary judgment motion.” (citation modified)); Viewpoint Neutrality 
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Now! v. Bd. of Regents, 109 F.4th 1033, 1038 (8th Cir. 2024) (“A plaintiff may not merely point 
to unsupported self-serving allegations, but must substantiate allegations with sufficient 
probative evidence that would permit a finding in the plaintiff’s favor.” (citation omitted)). 
But even if the Court credited Green’s assertion that his salary was $1,827 per week, doc. 
52-1 at ¶ 3, or that his “effective hourly compensation generally exceeded $31 per hour,” id. at 
¶ 7, Green does not show that Clement actually reduced his pay. He concedes in his declaration 
that his compensation “remained a weekly salary of $1,827 through the date of [his] 
termination.” Id. at ¶ 34. And while his payroll records show that he was treated as an hourly 
employee during his last full pay period with Clement (February 25 to March 9, 2024), see id. at 
8, Green still received the same gross pay of $3,000, see id. Lastly, while Green states that his 
final paycheck following his termination (for the period of March 11–15, 2024) was calculated 
on an hourly basis, doc. 52-1 at ¶ 37, he does not argue that he received less pay during this 
period, see doc. 52 at 7–8. Green therefore fails to show “a real, remediable impairment of [his] 
rights under the FMLA” on this ground. Massey-Diez, 826 F.3d at 1158. Because Green fails to 
show that a genuine dispute of material fact exists on his FMLA interference claim, the Court 
grants summary judgment to Clement on this ground. Doc. 47 at 2. 
b. Retaliation 
Retaliation claims “are about discrimination”—that is, “situations in which an employer 
treats an employee differently because of a request for a statutory benefit.” Huber v. Westar 
Foods, Inc., 139 F.4th 615, 622 (8th Cir. 2025). Unlike interference claims, retaliation claims 
focus on whether the employer acted with “retaliatory intent.” Id. (citation omitted). An 
employee may establish an employer’s retaliatory intent either directly or indirectly. Id. 
Directly establishing such intent “is rare, because it requires a ‘specific link’ to ‘the challenged 
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decision.’” Id. (quoting Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 924 (8th Cir. 2014)). And 
the evidence “must be strong and clearly point to an illegal motive.” Id. (quoting Ebersole, 758 
F.3d at 924). 
But where, as here, an employee lacks direct evidence, he must establish retaliatory intent 
“circumstantially, through the three-part McDonnell-Douglas burden-shifting framework.” Id. at 
623 (first citing Ebersole, 758 F.3d at 924; and then citing McDonnell Douglas Corp. v. Green, 
411 U.S. 792 (1973)). Under this framework, “the employee has the initial burden to establish a 
prima facie FMLA retaliation claim.” Siebrecht v. Mercy Health Servs. – Iowa Corp., 163 F.4th 
524, 534 (8th Cir. 2026). That is, the employee must present sufficient facts for a jury to find 
that (1) he engaged in protected activity under the FMLA; (2) he suffered an adverse 
employment action; and (3) a causal connection existed between the protected activity and the 
adverse employment action. Id. If the employee makes this showing, “the burden shifts to the 
employer to present evidence of a legitimate, nondiscriminatory reason for the adverse action.” 
Id. Lastly, if the employer satisfies its burden, “the employee must present evidence that creates 
an issue of fact as to whether the employer’s reason was pretext for discrimination.” Id. 
i. Prima facie case 
In his Complaint, Green asserts many of the same bases for his FMLA retaliation claim 
as he does for his FMLA interference claim. Compare doc. 1 at ¶ 61, with id. at ¶ 57. The Court 
finds that these bases (except for those regarding retaliatory termination and denial of COBRA 
coverage) fail for the reasons discussed above. See supra Section II.A.1.a. The Court addresses 
Green’s COBRA claim below and turns now to addressing his retaliatory-termination claim. 
The parties make much the same arguments regarding the reason for Green’s termination 
as they did for Green’s FMLA interference claim. See generally docs. 49, 52. The Court 
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declines to rehash those arguments and incorporates its reasoning from above. See supra Section 
II.A.1.a. 
Clement argues that Green cannot show a causal connection between his taking FMLA 
leave and his termination. Doc. 49 at 12. Green disagrees, arguing that his termination 
“occurred during the same period in which he was actively undergoing FMLA-protected cancer 
treatment.” Doc. 52 at 8. This, he asserts, creates “a temporal proximity that itself permits a 
reasonable inference of a causal connection between [his] protected activity and the adverse 
employment action.” Id. 
Green is correct that “[t]emporal proximity between a protected activity and a decision to 
fire, demote, or take other adverse action against an employee can support an inference of 
causation.” Huber, 139 F.4th at 623 (emphasis in original). But importantly, this temporal 
proximity must be “very close.” Lissick v. Andersen Corp., 996 F.3d 876, 886 (8th Cir. 2021) 
(citation modified). And to determine temporal proximity, the Court “looks to the date an 
employer knew of an employee’s use (or planned use) of FMLA leave, not the date [that leave] 
ended.” Id. at 886–87 (citation omitted). As discussed above, Clement became aware of 
Green’s planned use of FMLA leave on December 5, 2023—the date Chris Bone sent him 
FMLA paperwork to complete. See doc. 49 at 4–5; doc. 49-5 at 1, 6. Clement did not terminate 
Green until March 15, 2024, doc. 46 at ¶ 18—over three months after learning of Green’s need 
for FMLA leave. Such a lag is too long to establish temporal proximity between Green’s FMLA 
leave and his termination. See Ebersole, 758 F.3d at 925 (noting that “a one-month or two-
month lag is too long” to establish temporal proximity “absent other evidence”); Sisk v. Picture 
People, Inc., 669 F.3d 896, 901 (8th Cir. 2012) (finding that “[m]ore than two months is too long 
to support a finding of causation without something more”). Thus, Green’s argument fails. 
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ii. Pretext 
Even if Green could show a causal connection, however, he nonetheless fails to establish 
that Clement’s reason for his termination was merely “pretext for discrimination.” Siebrecht, 
163 F.4th at 534. An employee may demonstrate pretext in two ways: (1) by showing “that the 
employer’s proffered explanation is unworthy of credence” because it “has no basis in fact,” or 
(2) “by persuading the court that an employer’s action was more likely motivated by a prohibited 
reason.” Id. at 535. The employee may submit evidence that, among other things, shows that 
“similarly situated employees who did not engage in the protected activity were treated more 
leniently,” or that “the employer deviated from its policies.” Brandt, 37 F.4th at 480 (citation 
omitted); see also Siebrecht, 163 F.4th at 536. 
Green argues that Clement offered a pretextual reason for his termination. See doc. 52 at 
5–6, 8–9. Specifically, he asserts in his declaration that Clement did not interview him, ask him 
to explain his time entries, or show him documentation accusing him of time theft before it 
terminated him. Doc. 52-1 at ¶¶ 27–29. He therefore maintains that a reasonable jury could 
conclude that Clement “did not conduct a meaningful investigation before terminating [him] for 
alleged misconduct.” Doc. 52 at 6. But Green does not show that Clement’s explanation “has no 
basis in fact,” Siebrecht, 163 F.4th at 535, as he admitted to violating company policy by 
clocking in early before driving to his medical appointments, see doc. 52-1 at ¶¶ 19–20. He also 
does not show that Clement treated “similarly situated employees who did not engage in the 
protected activity” more leniently. Brandt, 37 F.4th at 480 (citation omitted). Indeed, he fails to 
rebut that Clement has fired employees for time theft in the past, and that it did so without 
issuing a warning to either employee before termination. See doc. 49 at 11–12; docs. 49-11, 49-
12. See generally doc. 52. Finally, he produces no evidence showing that Clement had a policy 
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of interviewing or speaking with employees accused of time theft before termination. See 
generally docs. 51-1, 51-2, 52-1. He therefore fails to persuade the Court that Clement’s action 
“was more likely motivated by a prohibited reason.” Siebrecht, 163 F.4th at 535. Because 
Green has failed to show a prima facie case of retaliation or that Clement’s reason for 
terminating him was pretextual, the Court grants Clement’s motion for summary judgment on 
Green’s FMLA retaliation claim. Doc. 47 at 3. 
2. COBRA claim 
COBRA provides that employees, former employees, and their dependents may elect to 
continue receiving the employer’s health care coverage upon the occurrence of a qualifying 
event. See 29 U.S.C. § 1161(a). The statute “requires the administrators of covered group health 
plans to notify terminated employees that they have the option of continuing their benefits after 
their employment ends.” Hearst v. Progressive Foam Techs., Inc., 641 F.3d 276, 280–81 (8th 
Cir. 2011) (citation omitted); see also 29 U.S.C. §§ 1163(2), 1166(a)(4)(A). The administrator 
must notify the terminated employee of this option within 44 days of termination. See 29 U.S.C. 
§§ 1166(a)(2), (c). An administrator who fails to do so “may[,] in the court’s discretion[,] be 
personally liable to [the terminated employee] in the amount of up to $100 a day from the date of 
such failure or refusal.” 29 U.S.C. § 1132(c)(1). But COBRA relieves an employer of its 
obligation to notify and provide continued health care coverage if an employee is terminated for 
“gross misconduct.” See 29 U.S.C. § 1163(2). 
Neither COBRA nor its implementing regulations provide a definition of gross 
misconduct. The Eighth Circuit has described gross misconduct as a “rather nebulous term.” 
Johnson v. U.S. Bancorp Broad-Based Change in Control Severance Pay Program, 424 F.3d 
734, 739 (8th Cir. 2005). And it has addressed the term only in the context of whether an 
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employee’s conduct constituted gross misconduct as that term was defined in her employer’s 
severance plan. Id. at 739–40. The Eighth Circuit “has not further defined gross misconduct,” 
and “a dearth of authority” exists defining gross misconduct in the COBRA context generally. 
Higareda v. Tyson Foods, Inc., No. 3:19-cv-00075-RGE-SBJ, 2020 WL 6930453, at *3 (S.D. 
Iowa Oct. 6, 2020). 
Despite this lack of authority, however, several federal courts agree that gross misconduct 
encompasses more than mere negligence, incompetence, or occasional lapses in judgment. See, 
e.g., Mlsna v. Unitel Commc’ns, Inc., 91 F.3d 876, 880–81 (7th Cir. 1996); Paris v. F. Korbel & 
Bros., Inc., 751 F. Supp. 834, 838–39 (N.D. Cal. 1990); Lloynd v. Hanover Foods Corp., 72 F. 
Supp. 2d 469, 478–79 (D. Del. 1999); Nero v. Univ. Hosps. Mgmt. Servs. Org., No. 
1:04CV1833, 2006 WL 2933957, at *4 (N.D. Ohio Oct. 12, 2006); Nakisa v. Cont’l Airlines, No. 
CIV. A. H–00–090, 2001 WL 1250267, at *2 (S.D. Tex. May 10, 2001). For example, courts 
have declined to find gross misconduct where an employee was inadequate in his job as 
controller for a company, see Mlsna, 91 F.3d at 880–82; where an employee relayed the 
substance of a private conversation to a coworker’s wife, see Korbel, 751 F. Supp. at 837–39; 
where an ingredients mixer at a food preparation plant forgot to add an ingredient to a food 
mixer on one occasion, see Lloynd, 72 F. Supp. 2d at 478–79; and where a medical assistant filed 
lab results in the wrong chart, mislabeled a blood sample, and failed to follow through with 
patient referrals on occasion, see Nero, 2006 WL 2933957, at *5. 
Some federal courts have defined gross misconduct as conduct that is “intentional, 
wanton, willful, deliberate, reckless[,] or in deliberate indifference to an employer’s interest.” 
Collins v. Aggreko, Inc., 884 F. Supp. 450, 454 (D. Utah 1995). Others have described it as 
conduct that is “outrageous, extreme[,] or unconscionable”—that is, conduct which “shocks the 
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conscience.” Zickafoose v. UB Servs., Inc., 23 F. Supp. 2d 652, 655 (S.D. W. Va. 1998). And 
the Seventh Circuit has held that, for an employer to avoid its COBRA obligations, it must have 
more than an “honest, actual belief” that an employee engaged in gross misconduct; the facts 
must instead show that the employee “indeed engage[d] in gross misconduct.” Kariotis v. 
Navistar Int’l Transp. Corp., 131 F.3d 672, 680 (7th Cir. 1997). 
The Court finds the above definitions consistent with the plain meaning of “gross 
misconduct” around the time of COBRA’s enactment in 1985. See Gross, Black’s Law 
Dictionary (5th ed. 1979) (defining “gross” as “[o]ut of all measure; beyond allowance; flagrant; 
shameful”); Misconduct, Black’s Law Dictionary (5th ed. 1979) (defining workplace misconduct 
as that which “evinces [a] willful or wanton disregard of [the] employer’s interest, as in 
deliberate violations, or disregard of standards of behavior which employer has right to expect of 
his employees, or in carelessness or negligence of such degree or recurrence as to manifest 
wrongful intent or evil design”). 
As relevant here, federal courts have found gross misconduct when an employee stole 
from her employer, see Burke v. Am. Stores Emp. Benefit Plan, 818 F. Supp. 1131, 1135–38 
(N.D. Ill. 1993), and when a security guard deserted his post and falsified a work log to receive a 
second, unearned paycheck, see Adkins v. United Int’l Investigative Servs., Inc., No. C 91–0087 
BAC, 1992 WL 12942441, at *4 (N.D. Cal. Mar. 27, 1992). Federal courts have also indicated 
that an employee’s misappropriating company funds may constitute gross misconduct. See 
Conery v. Bath Assocs., 803 F. Supp. 1388, 1396 (N.D. Ind. 1992). 
Here, Green alleges that Clement “failed to provide [him] with timely and proper notice 
of COBRA continuation coverage rights,” doc. 1 at ¶ 67, causing him to incur out-of-pocket 
medical expenses and other costs, id. at ¶ 68. Clement responds that Green was not entitled to 
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continued COBRA coverage because Clement terminated his employment for time theft—which, 
it argues, constitutes gross misconduct. Doc. 49 at 13. Green again states that his sworn 
declaration shows that “his radiation treatments were brief, that he worked after completing those 
treatments, and that his supervisor approved the time entries in question.” Doc. 52 at 9; see also 
doc. 52-1 at ¶¶ 10–11, 15–18. Therefore, he argues, “the record presents a genuine dispute 
regarding whether [he] engaged in any misconduct at all.” Doc. 52 at 9. 
But even when drawing all these inferences in Green’s favor, his argument fails. As the 
Court already found, the evidence shows that Green engaged in at least some time theft during 
his employment with Clement. Such theft illustrates an intentional, willful, deliberate, or 
reckless indifference to his employer’s interest. See Burke, 818 F. Supp. at 1135–38; Adkins, 
1992 WL 1292441, at *4. The Court thus finds that Green engaged in gross misconduct. 
Clement therefore had no obligation to notify Green of his right to continued COBRA coverage. 
The Court grants Clement’s motion for summary judgment on Green’s COBRA claim. Doc. 47 
at 4–5. 
3. Clement’s remaining requests 
Clement separately requests that the Court strike Green’s additional statement of facts 
and declaration in their entirety “for violation of the sham affidavit rule.” Doc. 58 at 3. It argues 
that (1) Green’s statements in his “verified Complaint” and declaration conflict regarding 
whether he took off full workdays for his radiation treatments; (2) Green’s statements in his 
declaration about his weekly compensation being $1,827 are unsupported; and (3) Green’s 
statement of facts contains vague, ambiguous, or conclusory statements that “cannot be 
substantiated.” Id. at 3–4. But because the Court grants summary judgment in Clement’s favor 
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notwithstanding the perceived defects in Green’s declaration and statement of facts, the Court 
denies Clement’s request as moot. Id. 
B. Green’s motion for partial summary judgment 
Based on the same facts underlying Green’s Complaint, Clement filed a counterclaim 
against Green for breach of contract, unjust enrichment, and common-law fraud. See doc. 44. 
Green moves for summary judgment on Clement’s fraud claim. See doc. 50. But, having 
disposed of Green’s federal claims, and finding no basis for diversity jurisdiction, see docs. 1, 
44, the Court declines to exercise supplemental jurisdiction over Clement’s state-law claims. See 
28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Gibbs, 383 U.S 715, 726 (1966) (stating 
that when a federal court dismisses all federal claims before trial, it should also dismiss the state 
claims); see also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 977 (8th Cir. 1993). 
When a court dismisses all federal claims on a motion for summary judgment, “the 
balance of factors to be considered under the supplemental jurisdiction doctrine—judicial 
economy, convenience, fairness, and comity—will [usually] point toward declining to exercise 
jurisdiction over the remaining state-law claims.” Leask v. City of Minneapolis, 172 F.4th 598, 
601 (8th Cir. 2026). This is true even when a defendant has filed a counterclaim. See Innovative 
Home Health Care, Inc. v. P.T.-O.T. Assocs., 141 F.3d 1284, 1286–88 (8th Cir. 1998); Willman 
v. Heartland Hosp. East, 34 F.3d 605, 613–14 (8th Cir. 1994). The Court therefore dismisses 
Clement’s counterclaim without prejudice. Doc. 44. The Court also denies as moot Green’s 
motion for partial summary judgment. Doc. 50. 
 
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