govinfo:USCOURTS-ksd-6_12-cv-01032-1

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ARTHUR BARNES, )
)
Plaintiff, ) CIVIL ACTION
)
v. ) No. 12-1032-MLB
)
SPIRIT AEROSYSTEMS, INC., )
)
Defendant. )
)
MEMORANDUM AND ORDER
This case comes before the court on defendant’s motion for
summary judgment and plaintiff’s motion for partial summary judgment. 
(Docs. 36, 47). The motions have been fully briefed and are ripe for
decision. (Docs. 48, 49, 56, 58, 59). Defendant’s motion is granted
and plaintiff’s motion is denied for the reasons herein. 
I. Facts
1
Plaintiff, Arthur Barnes, was employed as an assembly mechanic
by defendant Spirit for approximately five years until his termination
on September 23, 2011. Defendant provided all its employees,
including plaintiff, with its policies and procedures pertaining to
the Family Medical Leave Act and the general attendance policy. 
According to the attendance policy, employees accrue
“occurrences” for unexcused tardiness or absences. If an employee is
1 After failing to file a timely response to defendant’s motion,
the court gave plaintiff an opportunity to respond and informed
plaintiff that a failure to comply with the rules would result in the
court treating defendant’s motion as uncontested. (Doc. 57). 
Plaintiff’s response to the court’s order was conclusory and plaintiff
made no attempt to controvert defendant’s facts. (Doc. 58). 
Defendant’s statement of facts is therefore deemed uncontroverted.

one to 29 minutes late for work, he will accrue one-half of an
occurrence. Any unexcused absence from 30 minutes to a full day will
result in one full occurrence. If an employee accrues at least two
occurrences within an eight-week period, he receives a first written
attendance discipline memorandum. If the employee accrues two more
occurrences within an eight-week period during the six months
following the first discipline memo, he receives a second written
attendance discipline memo. If the employee accrues two more
occurrences within an eight-week period during the 12 months following
the second discipline memo, he receives a third attendance discipline
memo and is terminated.
In the event of an absence, an employee is to call a reporting
line. The absence reporting line is an automated phone system which
allows an employee to push a number indicating that he or she is
absent for one of several reasons, including personal illness,
personal business, death in the family, car trouble, etc. The phone
number for the absence reporting line is 316-526-6900. An employee’s
call to the absence reporting line is merely notice to the manager
that the employee will not be at work on a particular day so that the
manager can make decisions regarding daily work, taking into account
an employee’s absence. The absence, however, is not excused when an
employee calls the absence reporting line. 
The employee must then follow defendant’s procedures for
excusing the absence (as vacation, bereavement leave, jury duty leave,
FMLA leave, etc.), or the absence will be considered unexcused, and
the employee will accrue occurrences and discipline in accordance with
the attendance policy, regardless of whether the employee called the
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absence reporting line. Excused absences, including absences excused
under FMLA via defendant’s leave of absence procedure, will not result
in occurrences or discipline. 
The attendance policy makes clear that employees who wish to
excuse absences via an approved leave of absence (including FMLA),
must follow Spirit’s leave of absence pro cedure. To request FMLA
leave, plaintiff must contact the Spirit AeroSystems Benefits Center
(Benefits Center) by phone or on the website. 
The relevant portions of the leave of absence procedure state
as follows:
When the approx imate timing of the need for leave is
unforeseeable, an employee must provide notice to the
Spirit AeroSystems Benefits Center as soon as practicable
under the facts and circumstances of the particular case.
It generally should be practicable for the employee to
provide notice of leave that is unforeseeable no later
than three business days from the first day of the
employee's absence . . . . Failure to timely request
leave may result in the leave being delayed or denied,
and may result in disciplinary action for the absence up
to and including termination.
. . .
For employees who are taking intermittent FMLA leave
after such leave has been approved, they must report
their absences to the Spirit AeroSystems Benefits Center,
and state that the absence is pursuant to an authorized
FMLA leave. Such report must be made no later than three
business days from the first day of the employee's
absence. Failure to timely report the absence will result
in the absence not qualifying as FMLA leave and may
result in disciplinary action for the absence, up to and
including termination.
(Doc. 48, exh. 4-A at 9-10).
If the employee fails to comply with the leave of absence
requirements for reporting and documentation, the employee may be
subject to termination based on the extended unapproved absences. 
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Both the leave of absence procedure and the attendance policy are
posted on the intranet and available to all employees. Employees also
receive e-mail notices any time the procedure is amended or revised.
The leave of absence procedure requires that employees use paid
time off when an employee has accrued more than 80 hours of earned
time off (ETO). When an employee’s ETO is less than 80 hours, the
employee may chose whether to take paid or unpaid FMLA leave. 
Plaintiff’s Absences
In 2010, plaintiff sought and was approved for intermittent FLMA
leave. Plaintiff exhausted his 12-week allotment of leave in 2010. 
On June 13, 2011, plaintiff requested another intermittent leave from
defendant’s Benefits Center. On June 24, plaintiff’s health care
provider submitted a medical certification to the Benefits Center. 
Plaintiff’s provider stated that plaintiff had ongoing periods of
incapacity due to headaches and that the headaches required
plaintiff’s absence approximately two times a week. On June 27,
defendant granted plaintiff’s request and approved intermittent FMLA
leave. 
In granting the request, defending informed plaintiff that he
must comply with defendant’s procedures, including informing his
supervisor that the absence was due to an FMLA-app roved reason,
recording his FMLA time as the absence occurred in the Absence
Management Tool, and in the Spirit timekeeping system. (Doc. 48, exh.
4-D). Plaintiff began using his FMLA and timely reported twenty-five
FMLA absences to the Benefits Center within three days of his absence
during the months of June, July, August and September. Plaintiff’s
phone records show that he called the Benefits Center line on
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September 6, 7 and 12. 
On September 14 and 15, plaintiff was absent from work. He
called the absence reporting line on both dates but did not call his
manager.2 Plaintiff also failed to call the Benefits Center to report
his absences as FMLA-related. Defendant treated plaintiff’s absences
on those dates as unexcused. Because plaintiff had received his
second attendance discipline memorandum in November 2010, the two
occurrences in September 2011 resulted in plaintiff receiving a third
attendance discipline memorandum and being terminated from his
position. At the time of his termination, plaintiff had approximately
50 hours of ETO.
Plaintiff filed a complaint against defendants alleging claims
of FMLA interference and retaliation.
3 Both defendant and plaintiff
have now moved for summary judgment. 
II. Summary Judgment Standard
The rules applicable to the resolution of this case, now at the
summary judgment stage, are well-known and are only briefly outlined
here. Federal Rule of Civil Procedure 56(c) directs the entry of
summary judgment in favor of a party who "show[s] that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). 
2 Plaintiff’s records show that he sent a text message to his
manager. The subject of the text, however, has not been established.
3 Although the facts in plaintiff’s complaint focus on the FMLA
violations, plaintiff also brought claims of civil rights violations
and state law claims of wrongful termination and breach of contract. 
In his reply brief, however, plaintiff notified the court that he
withdraws these claims. Nevertheless, the court grants defendant’s
motion for summary judgment on these claims for the reasons stated in
defendant’s motion. 
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An issue is “genuine” if sufficient evidence exists so that a rational
trier of fact could resolve the issue either way and an issue is
“material” if under the substantive law it is essential to the proper
disposition of the claim. Adamson v. Multi Community Diversified
Svcs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). When confronted
with a fully briefed motion for summary judgment, the court must
ultimately determine "whether there is the need for a trial–whether,
in other words, there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party." Anderson v. Liberty Lobby, Inc.
,
477 U.S. 242, 250 (1986). If so, the court cannot grant summary
judgment. Celotex Corp. v. Catrett
, 477 U.S. 317, 322-23 (1986).
III. Plaintiff’s Pro Se Status
The court is mindful that plaintiff is proceeding pro se. It
has long been the rule that pro se pleadings, including complaints and
pleadings connected with summary judgment, must be liberally
construed. See
 Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.
1991); Hill v. Corrections Corp. of America, 14 F. Supp.2d 1235, 1237
(D. Kan. 1998). This rule requires the court to look beyond a failure
to cite proper legal authority, confusion of legal theories, and poor
syntax or sentence construction. See
 Hall, 935 F.2d at 1110. Liberal
construction does not, however, require this court to assume the role
of advocate for the pro
 se litigant. See id. Plaintiff is expected
to construct his own arguments or theories and adhere to the same
rules of procedure that govern any other litigant in this district. 
See
 id.; Hill, 14 F. Supp.2d at 1237. A pro se litigant is still
expected to follow fundamental procedural rules. Ogden v. San Juan
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County, 32 F.3d 452, 455 (10th Cir. 1994).
IV. Analysis
Interference Claim
The FMLA entitles “eligible employees” to take up to twelve
weeks of unpaid leave in any twelve-month period for qualifying
medical or family reasons. See 29 U.S.C. § 2612(a)(1). The statute
ensures that the employee will be restored to the same or an
equivalent position upon returning to work. See
 29 U.S.C. §
2614(a)(1). The statute creates a private right of action entitling
“eligible employees” to seek both equitable relief and money damages
“against any employer,” 29 U.S.C. § 2617(a)(2), should that employer
“interfere with, restrain, or deny the exercise of” FMLA rights, 29
U.S.C. § 2615(a)(1).
An employee may recover damages against the employer when it has
interfered with the right to medical leave or reinstatement following
medical leave. 29 U.S.C. § 2615; Smith v. Diffee Ford-Lincoln
-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002). 
To make out a prima facie claim for FMLA interference, a
plaintiff must establish (1) that he was entitled to FMLA
leave, (2) that some adverse action by the employer
interfered with his right to take FMLA leave, and (3)
that the employer's action was related to the exercise or
attempted exercise of his FMLA rights. 
 
Jones v. Denver Pub. Schools
, 427 F.3d 1315, 1319 (10th Cir. 2005). 
Defendant contends that plaintiff has failed to establish that
the termination was related to the exercise of plaintiff’s FMLA
rights. The Tenth Circuit has held that “an 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
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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). In Twigg, the plaintiff was absent from work for three
consecutive days. The plaintiff submitted an FMLA request to the
defendant’s medical department on the second day of her absence, but
she failed to comply with the defendant’s policy of providing notice
to the immediate supervisor. The defendant in Twigg
 terminated the
plaintiff’s employment because she failed to notify her supervisor
that she was going to be absent. The Tenth Circuit found that the
defendant’s policy was legitimate and that the plaintiff had no
evidence to contradict the defendant’s explanation for the
termination. Therefore, the termination was not a violation of the
FMLA because it was not related to her request for FMLA leave. 659
F.3d at 1009. 
In this case, the uncontroverted facts establish that plaintiff
failed to comply with defendant’s policy. Plaintiff did not call the
Benefits Center to report his absences as FMLA leave, regardless of
whether the absences were to be paid leave or unpaid leave.
4 In an
attempt to excuse his absences, plaintiff went to his medical provider
on September 23, the same day that he was terminated and nine days
after his initial absence. The medical provider wrote a letter which
stated that plaintiff was seen on September 21 and to “please excuse
from work 09/14/2011 and 09/15/2011.” (Doc. 36, exh. 1 at 8). The
4 In his reply, plaintiff conte nds that there is a different
policy with respect to taking paid FMLA leave and that he did what he
has always done in the past. The evidence does not support his
position. Any employee taking FMLA leave must report that leave to
the Benefits Center.
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letter was faxed to the Benefits Center and received after business
hours and subsequent to plaintiff’s termination. The letter, however,
does not state the reason that plaintiff was absent on September 14
and 15. As stated in defendant’s policy, to be excused as FMLA leave,
the absence must be related to the approved reason for leave and not
just because an individual is sick. (Doc. 48, exh. 4-A at 10).
Plaintiff has failed to establish that a genuine dispute of
material fact exists as to the reason for his termination. The
undisputed facts demonstrate that plaintiff was terminated for failing
to comply with defendant’s attendance policy. Defendant’s motion for
summary judgment on plaintiff’s interference claims is therefore
granted. Plaintiff’s motion for summary judgment on this claim is
denied.
Retaliation
In addition, plaintiff alleges that defendant retaliated against
plaintiff for exercising his rights to take FMLA leave. To state a
prima facie case of retaliation, plaintiff must show that: (1) he
engaged in a protected activity; (2) defendant took an action that a
reasonable employee would have found materially adverse; and (3) there
exists a causal connection between the protected activity and the
adverse action. Metzler v. Federal Home Loan Bank of Topeka
, 464 F.3d
1164, 1171 (10th Cir. 2006). If plaintiff meets his prima facie case,
the burden shifts to defendant to provide a legitimate, non-
retaliatory reason for plaintiff’s termination. See
 Twigg, 659 F.3d
at 1004 (McDonnell Douglas framework is utilized in connection with
FMLA retaliation claims). If defendant meets its burden, plaintiff
must then show that defendant’s proffered reason is pretextual. 
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Metzler, 464 F.3d at 1170. 
The evidence establishes that plaintiff engaged in protected
activity on September 6, 7 and 12. Therefore, the first element is
established. Defendant does not dispute that the second element is
met in this case. With respect to the third element, temporal
proximity is sufficient to establish a causal connection. Id.
 at
1171-71. Defendant cites Meiners v. Univ. of Kansas, 359 F.3d 1222
(10th Cir. 2004), for the proposition that plaintiff must provide
additional evidence other than temporal proximity. Meiners
, however,
explained that additional evidence was necessary in that case because
the adverse action was a denial of a request. When the adverse action
is termination, as in this case, the Tenth Circuit has held that
temporal proximity, by itself, is sufficient to establish a causal
connection. See
 Metzler, 464 F.3d at 1170 (citing Ramirez v. Okla.
Dept. of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994) (holding
that a one and one-half month period between the protected activity
and the adverse action may, by itself, establish causation)). 
Therefore, the court finds that plaintiff has established a prima
facie case of retaliation.
Next, the burden shifts to defendant to offer a legitimate, non-
discriminatory reason for the termination. As previously discussed,
defendant contends that plaintiff was terminated for a violation of
the absence policy. The court finds that defendant met its burden.
The burden now shifts to plaintiff to show that defendant’s
reason for termination is pretextual. The only evidence plaintiff
offers to establish pretext is the close proximity of his termination
to the protected activity. Even “very close temporal proximity” is
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not enough to establish pretext without “circumstantial evidence or
retaliatory motive.” Metzler, 464 F.3d at 1172. Plaintiff has not
offered either. Therefore, plaintiff has failed to satisfy his
burden. 
Defendant’s motion for summary judgment on plaintiff’s
retaliation claim is granted. Plaintiff’s motion is denied. 
V. Conclusion
Defendant’s motion for summary judgment is granted. (Doc. 47). 
Plaintiff’s motion for partial summary judgment is denied. (Doc. 36). 
The clerk is ordered to enter judgment in favor of defendant.
A motion for reconsideration of this order pursuant to this
court's Rule 7.3 is not encouraged. Any such motion shall not exceed
three pages and shall strictly comply with the standards enunciated
by this court in Comeau v. Rupp
. The response to any motion for
reconsideration shall not exceed three pages. No reply shall be
filed.
IT IS SO ORDERED.
Dated this 15th 
 day of January 2013, at Wichita, Kansas.
s/ Monti Belot 
Monti L. Belot
UNITED STATES DISTRICT JUDGE
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