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Dotson v. BRP US Inc.

March 21, 2008

BRIAN K. DOTSON, PLAINTIFF-APPELLANT,
v.
BRP US INCORPORATED, A DELAWARE CORPORATION, FORMERLY KNOWN AS BOMBARDIER MOTOR CORPORATION OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Southern District of Illinois. No. 06 C 4004-J. Phil Gilbert, Judge.

The opinion of the court was delivered by: Rovner, Circuit Judge.

ARGUED NOVEMBER 26, 2007

Before BAUER, ROVNER and WOOD, Circuit Judges.

Brian K. Dotson was terminated from his employment with BRP US Inc. ("BRP") after filing a claim for compensation under the Illinois Workers' Compensation Act ("WCA"). See 820 ILCS 305/1 et seq. Dotson's absence from work exceeded the amount of time allowed by the company's absenteeism policy, which tracks the time allotted by the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. ("FMLA"). Dotson sued his employer under Illinois law, alleging that the discharge was in retaliation for filing a workers' compensation claim. The district court granted summary judgment in favor of BRP after concluding that no reasonable jury could conclude that Dotson's discharge was due to retaliation. We affirm.

I.

BRP manufactures recreational products, including personal watercraft. Dotson began working for BRP in 1999 in a job called "grind and trim." Dotson's duties entailed drilling and cutting, sometimes in cramped spaces, under boats. On January 7, 2004, Dotson injured his back while grinding under a boat. He worked a few days on light duty status and then, at BRP's direction, he saw Dr. Dallas Lipscomb on January 19, 2004.*fn1 Dr. Lipscomb referred Dotson to Dr. McGuire, a chiropractor, and Dr. Kevin Rutz, an orthopedic spine specialist. Dotson saw Dr. Rutz on February 13 for an independent medical evaluation that had been requested by Gallgher Bassett Services ("Gallagher") on behalf of the workers' compensation carrier for BRP. Dr. Rutz performed surgery on Dotson's lower back in March, and gave him a limited duty work release at the end of June. Dr. Rutz released Dotson for full duty in August. From January 19 through the August work release, Dotson was unable to perform the grind and trim job due to his injury.

BRP's absenteeism policy tracked the minimum amount of leave mandated by the FMLA. The company allowed workers up to twelve weeks of unpaid leave in any rolling twelve-month period for qualifying absences. Translating that into hours, BRP allowed 480 hours of absence under the FMLA, and under its absenteeism policy. According to BRP's Employee Handbook,

All FMLA time runs concurrent with short term disability and worker's compensation or any qualifying event. When an employee has exhausted twelve weeks of FMLA time during a rolling calendar year, employment with [BRP] may be terminated.

Although that passage implied that termination at the end of twelve weeks was optional, the very next sentence clarified the meaning:

An employee who is unable to work for more than twelve weeks will be considered automatically terminated at the expiration of that period, regardless of the reason for the inability to work.

In both policy and practice, BRP terminated any employee who exceeded twelve weeks of FMLA leave in a twelve month period.

Prior to injuring his back, Dotson had already used 286 hours of FMLA leave during the previous twelve months. On January 19, BRP notified Dotson by letter that he might be eligible for FMLA leave due to his injury, that he had 194 hours (approximately 24 days) of FMLA leave remaining after other uses, and that any FMLA leave would run concurrently with workers' compensation and short term disability benefits. One BRP employee told Dotson his FMLA leave would expire on February 8, but a February 10 letter from BRP informed Dotson that his leave would expire on February 23 by the company's calculations. Dotson questioned whether he needed FMLA leave at all, believing that as long as his absence was covered by workers' compensation, the time did not count against his FMLA total. BRP told Dotson that if he did not apply for FMLA leave, he would be terminated immediately, and so Dotson signed the paperwork, and then later tried to revoke his request. Dotson collected total temporary disability payments throughout his absence for this injury. Of course, as we noted above, Dotson's doctors performed his back surgery in March, and did not release him for full work duty until August. On February 24, BRP sent Dotson a letter purporting to terminate his employment due to excessive absenteeism.

Dotson sued BRP under the WCA, specifying three particular acts or omissions that harmed him. First, he alleged that BRP terminated his employment after he attempted to return to work with restrictions for a work-related injury.*fn2 Second, he complained that BRP wrongfully required him to utilize FMLA leave rather than affording him temporary total disability time as authorized by law. Finally, he asserted that BRP violated the WCA by wrongfully terminating him for exercising his lawful right to claim workers' compensation benefits. The district court granted summary judgment in favor of BRP, finding that Dotson failed to show a causal connection between his workers' compensation claim and his termination. The court noted that excessive absenteeism, if not a pretext, is a valid basis for discharging an employee, even if the employee's absence is due to a work-related injury ...


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