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Acker v. General Motors, L.L.C.

United States Court of Appeals, Fifth Circuit

April 10, 2017

LONNY ACKER, Plaintiff - Appellant
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 employer's "usual and customary" procedures for requesting FMLA leave absent "unusual circumstances, " 29 C.F.R. § 825.303(c).


         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 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. 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 ...

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