United States District Court, W.D. Virginia, Roanoke Division
CAMERON R. FELTS Plaintiff,
VOLVO GROUP NORTH AMERICA, LLC, Defendant.
Elizabeth K. Dillon United States District Judge
before the court are cross-motions for summary judgment. In
the complaint, plaintiff Cameron Felts claims that defendant
Volvo Group North America, LLC (Volvo) interfered with his
substantive rights under the Family and Medical Leave Act
(FMLA) and retaliated against him for exercising his FMLA
rights. Felts seeks summary judgment in his favor as to all
three counts in his complaint. Volvo also seeks summary
judgment in its favor as to all three counts. The motions
have been fully briefed and argued before the court.
discussed in more detail below, the court will deny both
parties' motions for summary judgment as to the
interference claim in Count One and the retaliation claim in
Count Two, and it will grant summary judgment in Volvo's
favor as to the retaliation claim in Count Three.
Felts Begins Working as a Welder for Volvo.
began working as a welder for Volvo on a full time,
hourly-wage basis in February 2012. As a Volvo employee,
Felts was required to abide by the attendance policy set
forth in the collective bargaining agreement between
Volvo's New River Valley plant, the International UAW,
and UAW Local 2069. The attendance policy sets out a
progressive discipline system based upon an employee's
“chargeable” hours of absences that are not
covered under the FMLA. The policy provides that chargeable
absence hours are removed from an employee's record
twelve months from the date of the absence. (Elswick Decl. 3,
Dkt. No. 24-3.)
attendance policy includes a disciplinary system called the
Chronic Attendance Program (CAP), which seeks to correct
chronic absenteeism. (CAP Ltr. 1, Dkt. No. 1-1.) The policy
addresses employees with “[o]verall attendance records
that may show a pattern of abuse such as . . . excessive
tardy or leave early pattern[s].” (CAP, Ex. A at 1,
Dkt. No. 24-3.) It does not set out a minimum number of
unexcused absence hours in order for an employee to be placed
on CAP. While some HR representatives at Volvo have stated
that they personally do not place employees on CAP with 44
hours or less of unexcused absences (Lilly Decl. 4, Dkt. No.
24-4; Shiffner Decl. 5, Dkt. No. 24-5), others have placed
employees on CAP with as few as 32 hours (Elswick Decl. 4).
Once an employee is placed on CAP, a number of conditions
apply to the employee's next six months of active
employment, including the following manDated: “You
cannot miss any times from work. This includes full-day
absences, late entries, and early exits . . . . If you are
deemed to be out of compliance with the conditions of this
Program, you will be terminated immediately.” (CAP Ltr.
Volvo employee, Felts was also required to abide by the New
River Valley Plant Shop Rules. In particular, Shop Rule 29
provides that “[t]he following violation[ . . .] may
warrant the immediate termination of any employee[:]
Falsification of time or records or misrepresenting yourself
with information provided to the Company.” (Shop Rules
2, Dkt. No. 24-3.)
Volvo Approves Felts's Request for FMLA Leave From March
1, 2014, to March 1, 2015.
2013, Felts applied for and received intermittent leave
rights under the FMLA due to a serious medical condition of
anxiety and panic attacks. Felts's treating physician, Dr.
Clifford Nottingham, certified that Felts would require
intermittent FMLA leave to manage this condition and
estimated the frequency of leave as up to two days per week
and one day per occurrence. (Certification 3, Dkt. No. 22-3.)
In 2014, Felts provided Volvo with re-certification as to the
same frequency of absences, and Volvo approved Felts's
request for FMLA leave for the period from March 1, 2014, to
March 1, 2015. (Dillon Decl. 2, Dkt. No. 24-8; Pl.'s Dep
Tr. 93:16- 95:10, Dkt. No. 24-1.)
Felts's FMLA Leave Expires.
was aware that he needed to recertify for FMLA leave in March
2015 and that the medical recertification had to be submitted
to Volvo within 15 days of any FMLA leave. (Pl.'s Dep.
Tr. 103:14-104: 6.) Felts did not meet with Dr. Nottingham
until March 19, however,  and Volvo did not receive the
recertification until March 22. (Pl.'s Br. 3, Dkt. No.
22; Def.'s Br. 4, Dkt. No. 24.) After receiving it, Volvo
granted the recertification and approved Felts's FMLA
leave for the period from March 16, 2015, to March 16, 2016.
The parties dispute whether, within five days of his request
for FMLA leave, Felts received proper notice from Volvo that
it would consider his absences within the gap period as
chargeable hours. The form Felts submitted with his medical
authorization stated that he was requesting FMLA leave as of
March 1; Volvo's NVRP form provides a March 16 date.
(Pl.'s Br., Exs. C, D.)
Volvo Asks Felts to Recertify to Reflect Increased Need for
Absences, But He Does Not.
5, 2015, Gene Dillon, the HR representative responsible for
managing the administration of Felts's FMLA benefits,
emailed Jeffrey Melton, the Business Team Leader at the
plant. In the email, Dillon wrote:
[Felts's] current usage over the last month is not in
line with [his authorization]. He is exercising leave 3-5
days per month and about half to two thirds of these are less
than the full day authorized. Please warn him that we cannot
continue to honor his FML outside of the issued guideline. He
must get his FMLA Certification amended to better reflect his
current need or only utilize FML within the medical
(May 5 Email 1, Ex. A, Dkt. No. 24-9.) In his declaration,
Melton asserted that Felts's supervisors, Tim Littreal
and Michael Folden, “conveyed the re-certification
request” to Felts at Melton's request. (Melton
Decl. 2, Dkt. No. 24-9.) Nevertheless, Felts did not submit
new FMLA paperwork in May.
9, 2015, Dillon sent Melton another email, which included
Excel and calendar images that detailed the way Felts's
then-current plan continued to conflict with the frequency of
his usages. Dillon wrote: “Due to his increased
frequency of use [Felts] will either need to recertify or
change his rate of usage. Please advise him that usage about
2 days a week will not be coded FML . . . unless an updated
FML Certification is submitted . . . . Let me know if he
needs a new FML form as I would like to submit a copy of his
usage to his health care provider along with it.” (June
9 Email 1, Ex. B, Dkt. No. 24-9.) Littreal confirmed that the
request had been conveyed to Felts. (Littreal Email 1, Ex. C,
Dkt. No. 24-9.) According to Melton, Volvo started charging
Felts unexcused absence hours for absences taken in excess of
what was approved in his certification on June 10. (Melton
after Dillon's June 10 email, records from Volvo's
timekeeping program, AT Server, include a note written by
Michael Folden: “Cameron asked to use FMLA and was told
he had exhausted his allowed FMLA usage for this week and he
said he would just take the points.” (June 10 Note, Ex.
D, Dkt. No. 24-9.) Similarly, on June 12, the records include
another note by Folden: “[Felts] left after 8 hours.
Told his supervisor he would take the points.” (June 12
Note, Ex. D, Dkt. No 24-9.) Felts did not submit new FMLA
paperwork in June.
Volvo Places Felts on CAP, and Felts Submits ...