USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 1 of 23
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-2202
KASEY A. ROBERTS,
Plaintiff − Appellant,
v.
GESTAMP WEST VIRGINIA, LLC,
Defendant – Appellee.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Irene C. Berger, District Judge. (2:19−cv−00854)
Argued: May 3, 2022 Decided: August 15, 2022
Before DIAZ, RUSHING, and HEYTENS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Rushing and Judge Heytens joined.
ARGUED: Richard William Walters, SHAFFER & SHAFFER, PLLC, Charleston, West Virginia, for Appellant. Eddie Travis Ramey, BURR & FORMAN LLP, Birmingham, Alabama, for Appellee. ON BRIEF: Carl W. Shaffer, SHAFFER & SHAFFER, PLLC, Charleston, West Virginia, for Appellant. Wm. Grayson Lambert, BURR & FORMAN LLP, Columbia, South Carolina, for Appellee. USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 2 of 23
DIAZ, Circuit Judge:
Kasey Roberts appeals the district court’s grant of summary judgment to his former
employer, Gestamp West Virginia, LLC, on his Family & Medical Leave Act (“FMLA”)
and common law retaliatory-discharge claims. Gestamp fired Roberts after he missed work
due to a recurring infection from an emergency appendectomy. The district court granted
Gestamp’s summary judgment motion because Roberts, it said, didn’t comply with the
company’s “usual and customary” absentee notice procedures, as the FMLA requires. 29
C.F.R. § 825.303(c). And Roberts’s common law claims failed because he hadn’t shown
an FMLA violation.
On appeal, Roberts contends the district court erred because, through his dealings
with Gestamp, the company’s “usual and customary” notice procedures for leaves of
absence expanded beyond those in its written policy. And Roberts argues that he complied
with his FMLA obligations by notifying Gestamp of his absences over Facebook
Messenger, which the company had previously accepted. We agree with Roberts’s reading
of the FMLA regulations and find that he’s raised a jury question on whether using
Facebook Messenger satisfied the Act’s requirements.
But Gestamp counters that even if Roberts’s initial notice were adequate, he
neglected his FMLA obligation to update the company on the duration of his absence,
defeating his FMLA-interference claim. On this too, Roberts has raised a material factual
dispute to survive summary judgment. So we vacate the district court’s judgment on his
interference claim and remand.
2 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 3 of 23
That said, we agree with Gestamp that the district court properly granted judgment
against Roberts’s FMLA-retaliation and common law retaliatory-discharge claims.
Because Roberts hasn’t offered enough evidence that Gestamp fired him in retaliation for
exercising his FMLA rights, we affirm the district court’s judgment on those claims.
I.
A.
1.
Gestamp is a multinational auto-parts manufacturer with a South Charleston, West
Virginia facility. Before he was terminated, Roberts worked on the assembly line there.
Gestamp maintains written attendance and leave policies, which are at the center of
this dispute. The company requires that employees notify their group leader via a call-in
line at least 30 minutes before their shift begins if they’ll be late or absent. Each employee
receives a card with the call-in number, and the number is posted on a company bulletin
board. If an employee misses three consecutive shifts without calling in, Gestamp will
consider the employee to have abandoned his job and will terminate him.
2.
In June 2019, Roberts underwent an emergency appendectomy. While at the
hospital, Roberts sent his group leader, Gary Slater, a Facebook message notifying him of
the situation. Roberts used Facebook because, shortly before this surgery, Slater had
messaged him on the app to communicate about an unrelated infection that caused Roberts
3 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 4 of 23
to miss work. As with the earlier infection, Slater corresponded with Roberts on Facebook
Messenger over several days after his surgery.
In those messages, Roberts told Slater he’d miss two weeks of work to recover from
the surgery. Roberts also dropped off a doctor’s note at Gestamp’s facility excusing him
for that period.
But right before Roberts was to return to work, his surgical wound became infected.
The hospital readmitted him for treatment. As with his first hospitalization, Roberts
messaged Slater on Facebook to tell him he was back in the hospital. He also asked for
human resources’ fax number to send in paperwork extending his leave period.
A few days later, Slater asked Roberts—again, using Facebook Messenger—how
long he’d be out of work. Roberts responded, “I have no idea. I go back to the doctor
[July] 23rd and that’s when they might take out the catheter. So it’s hard to tell how long.”
J.A. 550. On July 25th, Slater messaged Roberts for an update, and Roberts replied that he
still wasn’t sure when he’d be able to come back.
After another week, Roberts’s doctor cleared him to return to work on August 12th.
Roberts shared that date after Slater requested an update. See J.A. 549 (“Any word on
when you will be released[?]”). And he brought a copy of his doctor’s note to the facility.
Gestamp agrees that Roberts was on FMLA leave from June 27 through August 12,
2019.
3.
When Roberts returned to work on August 12th, he worked four days without issue.
But on Friday of that week, Roberts felt pain around where the infection had been. He
4 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 5 of 23
messaged Slater on Facebook asking to see him. Roberts later testified that he told Slater
about the pain. Slater purportedly responded, “[Y]ou know your body better than anybody,
so you do what you think you need to do.” J.A. 136. Roberts also testified he said he “was
thinking about going back to the hospital.” Id. To this, Slater didn’t respond. For his part,
Slater said he only remembered that Roberts “did not feel good and that he had to leave.”
J.A. 447. Roberts left work early.
The following Monday, Roberts messaged Slater: “Not going to make it in today.
I’m in so much pain and when I went to the hospital Friday I really never got an answer of
why I’m in a lot of pain but I do have a work excuse for Friday.” J.A. 548. Slater didn’t
respond.
The next day, on August 20th, Roberts messaged Slater again: “Hey.” J.A. 548.
Slater responded, “What’s up.” Id. Roberts replied, “The doctor is admitting me back into
the hospital[.] He thinks the infection is coming back[.] Have no idea how long I’ll be in
there.” Id. Slater didn’t answer. At his deposition, Slater admitted to reading the messages
but couldn’t recall when. Roberts contends that the app’s read receipts show Slater opened
the messages before Roberts returned to work on September 3rd.
Roberts had a scheduled vacation day on the day he returned to the hospital. But
the next day, Slater reported Roberts’s absence to human resources. Slater couldn’t recall
whether he mentioned Roberts’s hospital stay. But Gestamp’s human resources manager,
Scott Hughes, testified that Slater didn’t mention why Roberts missed work.
Here, things get muddled. Hughes claims that he terminated Roberts for job
abandonment on August 28th, effective August 21st. Roberts, however, contends that
5 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 6 of 23
Gestamp fired him on the 21st. He points to the company’s “Termination Checklist,”
which lists his termination date as August 21st. J.A. 37. The only other evidence of
Roberts’s termination date is a payroll screenshot. The top of the page says, “Terminated
on 8/28/19.” J.A. 565. But the entry for 8/21/19 says, “Terminated for job abandonment.”
Id.
Ultimately, Roberts returned to the facility on September 3rd with a doctor’s note
covering his absence. He learned then that Gestamp had fired him.
B.
Roberts sued Gestamp for FMLA interference and retaliation, as well as wrongful
discharge under West Virginia law. 1 Roberts and Gestamp cross-moved for summary
judgment.
The district court grouped together the FMLA claims and addressed them first. It
explained that, even though an employee needn’t use “magic words” to notice FMLA
leave, “[a]n employer is expressly allowed to require employees to comply with the
employer’s usual and customary notice and procedural requirements for requesting leave,
absent unusual circumstances.” Roberts v. Gestamp W. Va., LLC, No. 2:19-cv-00854, 2020
WL 6142258, at *4 (S.D. W. Va. Oct. 19, 2020) (cleaned up). So “[t]he primary issue in
[the] case [was] whether [Roberts’s] failure to notify [Gestamp] of his August 21-30, 2019
1 Roberts also sued Gestamp under the Americans with Disabilities Act and the West Virginia Human Rights Act. Below, Roberts didn’t contest summary judgment on his ADA claims. And he doesn’t appeal the district court’s judgment on his Human Rights Act claims.
6 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 7 of 23
absence through the approved call-in line violated [the company’s] usual and customary
notice and procedural requirements for requesting leave.” Id.
The district court found that “where an employee fails to comply with usual and
customary notice requirements, FMLA claims fail.” Id. at *6 (citing Peeples v. Coastal
Off. Prods., Inc., 64 F. App’x 860, 863–64 (4th Cir. 2003) (per curiam)). And it rejected
Roberts’s argument that Gestamp modified its usual call-in procedure given his past
communications with Slater over Facebook Messenger. So the court held that Roberts’s
FMLA claims failed because he didn’t use the call-in line and “no unusual circumstances
justified” his failure to do so. Id. The court also found that Roberts’s common law
wrongful-discharge claim fell alongside his FMLA claims.
The district court therefore denied Roberts’s summary judgment motion and granted
Gestamp’s. This appeal followed.
II.
We review an order granting summary judgment de novo, applying the same
standards as the district court. See Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d
651, 659 (4th Cir. 2018). “At the summary judgment phase, the pertinent inquiry is
whether there are any genuine factual issues that” only a factfinder can resolve “because
they may reasonably be resolved in favor of either party.” Id. (cleaned up).
In deciding whether the nonmoving party has raised a genuine dispute of material
fact, we must view the evidence in that party’s favor “and refrain from weighing the
evidence or making credibility determinations.” Id. (cleaned up). “A court improperly
7 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 8 of 23
weighs the evidence by failing to credit evidence that contradicts some of its key factual
conclusions, or by failing to draw reasonable inferences in the light most favorable to the
nonmoving party.” Id. at 659–60 (cleaned up).
III.
We begin with Roberts’s FMLA-interference claim. No one disputes that Roberts’s
condition was FMLA-qualifying or that firing him during FMLA leave would interfere
with his rights under the Act. So this claim turns on whether Roberts provided Gestamp
adequate notice of his need for FMLA leave beginning August 20th.
The notice issue is layered. First, we ask if Roberts has raised a jury question on
whether Facebook Messenger was an acceptable medium to notify Gestamp of his absence.
If so, then we consider whether a jury could find that the content of Roberts’s notice
satisfied his FMLA obligations. We think a reasonable jury could side with Roberts on
both counts.
To start, we offer some background on employees’ and employers’ respective rights
and obligations under the FMLA.
To prove FMLA interference, “an employee must [] demonstrate that (1) [they are]
entitled to an FMLA benefit; (2) [their] employer interfered with the provision of that
benefit; and (3) that interference caused harm.” Adams v. Anne Arundel Cnty. Pub. Sch.,
789 F.3d 422, 427 (4th Cir. 2015).
8 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 9 of 23
“The FMLA ‘provides no relief unless the employee has been prejudiced by the
violation.’” Vannoy v. Fed. Rsrv. Bank of Richmond, 827 F.3d 296, 302 (4th Cir. 2016)
(quoting Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)). So an employer
may avoid liability if it shows it would have taken the contested adverse employment action
regardless of the employee’s FMLA leave. See Yashenko v. Harrah’s NC Casino Co., 446
F.3d 541, 547 (4th Cir. 2006).
To qualify for FMLA leave, an employee must notify their employer of their need
for leave. 29 C.F.R. § 825.301(b). “In providing notice, the employee need not use any
magic words.” Dotson v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir. 2009) (cleaned up).
Rather, when leave is unforeseeable, “[a]n employee shall provide sufficient information
for an employer to reasonably determine whether the FMLA may apply to the leave
request.” 29 C.F.R. § 825.303(b). 2
The FMLA regulations offer guidance on the information employees should
provide. The notice should include “the anticipated duration of the absence, if known.”
Id.; see also Peeples, 64 F. App’x at 863 (“Employers are entitled to the sort of notice that
will inform them not only that the FMLA may apply but also when a given employee will
return to work.” (cleaned up)). And when, as here, “an employee seeks leave due to a
qualifying reason, for which the employer has previously provided the employee FMLA–
2 Gestamp doesn’t dispute that Roberts’s need for leave, beginning August 20th, was unforeseeable.
9 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 10 of 23
protected leave, the employee must specifically reference either the qualifying reason for
leave or the need for FMLA leave.” 29 C.F.R. § 825.303(b).
Even “[w]hen the need for leave is not foreseeable, an employee must comply with
the employer’s usual and customary notice and procedural requirements for requesting
leave, absent unusual circumstances.” Id. § 825.303(c). “For example, an employer may
require employees to call a designated number or a specific individual to request leave.”
Id. If an employee fails to do so, “FMLA-protected leave may be delayed or denied.” Id.;
see also Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 615 (6th Cir. 2013)
(affirming summary judgment against the plaintiff on an FMLA-interference claim where
he “produced no evidence demonstrating the type of ‘unusual circumstances’ that would
have justified his failure to follow the call-in requirements of [the company’s] attendance
policy”).
An employee’s adequate notice of their need for FMLA leave triggers the
employer’s obligations under the Act. “The employer will be expected to obtain any
additional required information through informal means.” 29 C.F.R. § 825.303(b); see also
id. § 825.301(a) (“In any circumstance where the employer does not have sufficient
information about the reason for an employee’s use of leave, the employer should inquire
further . . . to ascertain whether leave is potentially FMLA-qualifying.”). But employees
have a corresponding duty to respond to an employer’s inquiries. Id. § 825.303(b). In this
way, “the FMLA presupposes that employers and employees will cooperate and exchange
information.” Peeples, 64 F. App’x at 863 (cleaned up).
10 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 11 of 23
After an employer has “acquired knowledge” that an employee is taking leave “for
a[n] FMLA-qualifying reason,” it “must notify the employee” that it’s designating the leave
accordingly. 29 U.S.C. § 825.301(a). “The employer is responsible in all circumstances
for designating leave as FMLA-qualifying, and for giving notice of the designation to the
employee.” Id. § 825.300(d)(1). And “[i]f an employer’s failure to timely designate leave
in accordance with § 825.300 causes the employee to suffer harm, it may constitute an
interference with, restraint of, or denial of the exercise of an employee’s FMLA rights.”
Id. § 825.301(e).
One more wrinkle. When an employee seeks leave for a condition the employer has
already found FMLA-qualifying, the employer needn’t provide the employee with notice
of their rights again. Rather, it must supply that notice only “at the commencement of the
first instance of leave for each FMLA-qualifying reason.” Id. § 825.300(b)(1).
With the FMLA’s carefully calibrated allocation of rights and responsibilities in
mind, we turn to the issues before us.
The first thing we must decide is whether a jury could find that Roberts used a “usual
and customary” method to notify Gestamp of his need for leave after he was hospitalized
on August 20th. Gestamp contends (and the district court agreed) that Roberts’s
interference claim fails because he didn’t use the company’s call-in line for reporting
absences, despite his history of communicating with Slater over Facebook Messenger.
At the outset, we reject Roberts’s first response—that he followed the letter of
Gestamp’s leave policy despite using Facebook Messenger instead of the call-in line. He
11 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 12 of 23
insists that Gestamp’s policy “provides that an employee must only ‘generally . . . comply
with the company’s normal call-in procedures’” when noticing FMLA leave. Appellant’s
Br. at 17 (quoting J.A. 537).
This is a tortured construction of Gestamp’s policy, which says employees
“generally must comply with the company’s normal call-in procedures” in such
circumstances. J.A. 537 (emphasis added). In context, “generally” means “usually,” which
matches 29 C.F.R. § 825.303(c)’s exception for “unusual circumstances.”
Still, the district court erred in resolving this issue at summary judgment. The
relevant FMLA regulation is more flexible than Gestamp and the district court suggest. In
short, it requires an employee to comply with an employer’s “usual and customary notice
and procedural requirements for requesting leave.” 29 C.F.R. § 825.303(c). And we agree
with Roberts that “usual and customary” procedures include any method that an employer
has, by informal practice or course of dealing with the employee, regularly accepted, along
with those in the employer’s written attendance policy.
The regulation’s text supports this reading. “Usual” means “expected based on
previous experience, or on a pattern or course of conduct to date.” Usual, Black’s Law
Dictionary (11th ed. 2019); see also Usual, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/usual (“accordant with usage, custom, or
habit”). Similarly, “customary” means “commonly practiced, used, or observed,” and
“based on or established by custom.” Customary, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/customary. A plain reading of the phrase
12 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 13 of 23
“usual and customary” therefore includes methods of providing absentee notice that an
employer has accepted as “a pattern or course of conduct to date” or “by custom.”
At least one of our sister circuits has read § 825.303(c) the same way. In Festerman
v. County of Wayne, the Sixth Circuit considered whether submitting a doctor’s note might
have satisfied the plaintiff’s notice obligation even though the County’s “usual notice
procedures required submittal of a written leave of absence request.” 611 F. App’x 310,
316 (6th Cir. 2015). The plaintiff offered evidence that, despite the formal leave procedure,
“the common[,] unwritten practice of Wayne County was to grant leave based solely on
the submittal of a doctor’s note.” Id. at 317.
Reversing the district court’s summary judgment order, the court explained,
A plain reading of [“usual and customary”] reveals that an employer may require compliance with the employer’s ordinary custom. Nothing in the regulation . . . suggests that an employee must adhere to an official written policy to provide sufficient notice under the FMLA when a different unwritten custom is typically followed.
Id. at 316–17. We agree.
So too, one court in our circuit has suggested that evidence an employer has allowed
absentee-notice methods other than an official call-in line supports finding FMLA
compliance. See Honeycutt v. Balt. Cnty., Md., No. 06-0958, 2006 U.S. Dist. LEXIS
49315, at *11 (D. Md. July 7, 2006) (rejecting the County’s argument faulting the plaintiff
for failing to follow its call-in procedure in part because the plaintiff “ha[d] alleged that the
[] call-in procedure was not the ‘usual and customary [method] for requesting leave’
because the County permitted her co-workers to use [a] 24-hour hotline, . . . and [had]
allowed her to use it [previously]”).
13 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 14 of 23
Gestamp urges a different reading of Honeycutt, arguing that the “court’s decision
to deny the employer’s dispositive motion was not grounded in a potential modification of
notice procedures through conduct.” Appellee’s Br. at 29. Rather, it says, the decision
“was principally based on language in a previous version of 29 C.F.R. § 825.302(d) that
precluded employers from denying leave for failing to follow internal procedures so long
as the employee ‘gives timely verbal or other notice.’” Id. (quoting 29 C.F.R. § 825.302(d)
(1995)). We disagree. The Honeycutt court gave several, equally weighted reasons for
denying summary judgment—one being the language Gestamp cites from the former
version of § 825.302(d) and another being the plaintiff’s argument that the employer’s call-
in procedure wasn’t its (only) “usual and customary notice” procedure. See Honeycutt,
2006 U.S. Dist. LEXIS 49315, at *10–12.
The FMLA regulations do envision that “usual and customary” notice procedures
may include absentee call-in lines. See 29 C.F.R. § 825.303(c) (“[A]n employer may
require employees to call a designated number or a specific individual to request leave.”).
But that’s just one example. Nothing in the regulations’ text limits the reach of “usual and
customary” to a company’s written policy. And even if an employer’s written leave policy
is prima facie evidence of what’s “usual and customary,” the regulations don’t bar an
employee from supplementing that presumption with evidence that the employer also
accepts informal absentee notice in practice.
With this view of the regulations, Roberts has raised a genuine factual dispute over
whether it was “usual and customary” to report his absences by messaging his supervisor
on Facebook. Roberts’s Facebook messages with Slater show that they routinely discussed
14 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 15 of 23
his appendicitis and resulting hospital stays over that medium. Roberts informed Slater
about his surgery and first infection-related hospitalization on Facebook Messenger. Slater
responded via the app with follow-up questions about Roberts’s status and expected return
dates. Neither Slater nor anyone else at Gestamp disciplined Roberts for using Facebook
Messenger over this period or asked that he use the call-in line instead. And Gestamp
credited Roberts with FMLA leave on those earlier occasions.
It’s true, as Gestamp emphasizes, that a few months before Roberts’s
appendectomy, Slater disciplined him for failing to use the call-in line for an unrelated
absence. But as we’ve said, on another occasion, Slater used Facebook Messenger to ask
Roberts about an infection for which he missed work. And Roberts wasn’t disciplined for
not using the call-in line then.
What’s more, Gestamp conceded that Roberts’s use of Facebook Messenger to
notify Slater about his first surgery was acceptable because it was an emergency. See
Appellee’s Br. at 15 (“Using Facebook [M]essenger in that situation was an . . . exception
to the call-in policy for emergencies.”). The company doesn’t offer a plausible reason for
treating his hospital stay beginning August 20th any differently. Indeed, it suggests the
circumstances were similar. See Appellee’s Br. at 25 (“At most, there was an unusual
circumstance[] or emergency only on August 20 when Roberts was admitted to the
15 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 16 of 23
hospital.”). 3 So properly construing the evidence in Roberts’s favor, a reasonable jury
could find that his Facebook messages to Slater satisfied Gestamp’s “usual and customary”
notice procedures under the FMLA.
C.
Assuming now that Roberts used an acceptable medium to notify Gestamp of his
need for FMLA leave, we must decide whether a reasonable jury could find the notice itself
was adequate. To do so, we’ll consider Roberts’s leave period in two parts: (1) his hospital
stay from August 20th–23rd and (2) his recovery period at home from August 24th–
September 3rd.
First, we have no trouble concluding that Roberts’s Facebook messages to Slater on
August 20th provided adequate FMLA notice for his hospital stay.
Roberts said, “The doctor is admitting me back into the hospital[.] He thinks the
infection is coming back[.] Have no idea how long I’ll be in there.” J.A. 548. These
messages reference the infection for which Roberts had already received FMLA leave. So
there’s no question Roberts “provide[d] sufficient information for [Gestamp] to reasonably
determine [that] the FMLA may apply to the leave request.” 29 C.F.R. § 825.303(b).
3 Gestamp points out that Roberts provided corroborating doctors’ notes following his previous Facebook messages. But under Gestamp’s written policy, that would make no difference because the company wouldn’t accept such notes as notice. And because both notes came after Roberts and Slater had discussed Roberts’s absences over Facebook, a jury could reasonably infer that the Facebook messages, rather than the notes, were the communications on which Gestamp relied when crediting Roberts with FMLA leave.
16 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 17 of 23
True, FMLA notice should generally specify when an employee will be able to
return to work. But an employee facing a medical emergency can’t give information they
don’t have. See 29 C.F.R. § 825.303(b) (explaining notice should include “the anticipated
duration of the absence, if known” (emphasis added)). So, as he’d done in the past, Roberts
said he didn’t know how long he’d be hospitalized.
Gestamp disputes whether and when Slater read Roberts’s messages. Assuming this
dispute even bears on the outcome, it too belongs with a jury. The message thread shows
that Slater at least opened the August 20th messages some time before Roberts returned to
work on September 3rd. J.A. 563; see How do I know if a friend has seen a message I sent
on Facebook?, Facebook Help Center,
https://www.facebook.com/help/344515832413191?helpref=related_articles (“When you
message someone on Facebook, their profile picture will appear next to your message (on
the right) if they’ve seen it.”). Construing the evidence in Roberts’s favor, Slater read the
messages and failed to respond.
Though we’re satisfied that a jury could find Roberts provided adequate notice of
his need for FMLA leave during his hospital stay, things get murkier from there. When
Roberts left the hospital on August 23rd, he had a doctor’s note clearing him to return to
work on September 3rd. But he never told Gestamp this—over Facebook Messenger or
otherwise. Nor did he call in any of his later absences. Under these circumstances, the
question is whether Roberts or Gestamp had the burden to follow up on the status of
Roberts’s FMLA–qualifying leave.
17 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 18 of 23
But we needn’t answer that question. A separate factual dispute may obviate the
jury’s need to consider this absence period at all: Roberts’s termination date. Roberts
contends that Gestamp fired him on August 21st—while he was in the hospital. If that’s
true, the company’s FMLA violation was complete before Roberts knew his return-to-work
date. Gestamp counters that Roberts was fired on August 28th, not the 21st.
The evidence cuts both ways. In Roberts’s corner, Gestamp’s “Termination
Checklist” for his firing notes the termination date as August 21st. J.A. 37. Hughes
explained, however, that he made the decision to fire Roberts on August 28th, effective as
of August 21st. Gestamp also points to a payroll screenshot, which notes August 28th as
Roberts’s termination date. But on that same document, the entry for August 21st states
that Roberts was fired for job abandonment. A jury might also consider a notice Roberts
received in April 2019 that any future attendance violations would result in termination.
We think this conflicting evidence creates a genuine dispute of material fact.
Crediting Hughes’s explanation for the discrepancy would require weighing the evidence
and judging his credibility, which we (of course) mustn’t do at this stage. So construing
the conflicting evidence in Roberts’s favor, Gestamp fired him on August 21st—while he
was hospitalized and after he provided adequate notice of FMLA leave. His FMLA–
interference claim therefore should go to a jury.
D.
Gestamp’s remaining arguments don’t move us. To start, the company argues it
satisfied any burden it had to follow up with Roberts on the status of his leave. It claims
18 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 19 of 23
two human-resources representatives tried to call Roberts on his home phone to “determine
why he was absent.” Appellee’s Br. at 31.
We disagree that this contention warrants summary judgment for Gestamp. First,
Roberts raises a factual dispute over whether those calls ever happened: Gestamp typically
makes records of such calls, and there are no such records here. Second, even if human
resources made those calls, we don’t see how they could have been following up on
Roberts’s FMLA leave, as no one in that department knew about his Facebook messages
to Slater. And third, had the company acknowledged Roberts’s message saying he was in
the hospital, human resources would have known it couldn’t reach him on his home
phone—even if (as Gestamp tells us) that was the only number they had on file. For these
reasons, there’s at least a factual dispute on whether Gestamp complied with its FMLA
obligations.
Gestamp also contends it “had a legitimate, nondiscriminatory reason for
terminating Roberts: his violation of Gestamp’s call-in and attendance policies.”
Appellant’s Br. at 34. And it’s true that, in FMLA–interference cases, “an employer can
avoid liability . . . if it can prove that it would not have retained an employee had the
employee not been on FMLA leave.” Yashenko, 446 F.3d at 547 (cleaned up).
But here, Gestamp’s proffered reason for firing Roberts simply restates the core
dispute in this case. If a jury resolves the notice issue in Roberts’s favor, then he needn’t
have followed Gestamp’s written call-in and attendance policies. So Yashenko offers the
company no relief.
19 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 20 of 23
* * *
At bottom, our disposition recognizes that the adequacy of an employee’s notice of
their intent to take FMLA leave “is an intensely factual determination.” Donald v. Sybra,
Inc., 667 F.3d 757, 761 (6th Cir. 2012). We think the many disputes here are best left in a
jury’s capable hands.
IV.
We turn now to Roberts’s FMLA-retaliation and common law retaliatory-discharge
claims. Because Roberts hasn’t offered evidence that improper animus motivated
Gestamp’s decision to fire him, we affirm the district court’s judgment against Roberts on
both counts. We’ll take them in turn.
“The FMLA prohibits employers from discriminating against an employee for
exercising [their] FMLA rights.” Hannah P. v. Coats, 916 F.3d 327, 347 (4th Cir. 2019).
We apply the McDonnell Douglas burden-shifting framework to FMLA-retaliation claims.
Id.; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). “To establish a
prima facie case of FMLA retaliation, a plaintiff must demonstrate that (1) [they] engaged
in a protected activity; (2) [their] employer took an adverse employment action against
[them]; and (3) there was a causal link between the two events.” Hannah P., 916 F.3d at
347 (cleaned up).
20 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 21 of 23
If the plaintiff succeeds on this front, “the burden shifts to the defendant to provide
a legitimate, nonretaliatory reason for taking the employment action at issue.” Id. And if
the defendant so provides, the plaintiff may still prevail if they can show pretext. Id.
Roberts’s FMLA-retaliation claim fails because, even assuming he’d been on
FMLA leave when Gestamp fired him, he can’t show that exercising his FMLA rights
caused his termination. Fatally, Hughes—who made the decision to fire Roberts—didn’t
know that Roberts tried to take FMLA leave. 4
We’ve held that an employee can’t establish a prima facie FMLA-retaliation case
when the facts are “[in]sufficient to prove that the supervisors responsible for [the
employee’s] termination had knowledge of [their] FMLA request.” Wright v. Southwest
Airlines, 319 F. App’x 232, 234 (4th Cir. 2009) (per curiam); see also Dowe v. Total Action
Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (“Since, by
definition, an employer cannot take action because of a factor of which it is unaware, the
employer’s knowledge that the plaintiff engaged in a protected activity is absolutely
necessary to establish the third element of the prima facie case”); Strickland v. Water Works
& Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1208 (11th Cir. 2001) (“A decision
maker cannot have been motivated to retaliate by something unknown to him.” (cleaned
up)). This principle forecloses relief.
4 Slater couldn’t recall whether he told Hughes about the Facebook messages. But Hughes testified he didn’t. And Roberts never contends we should construe the evidence to assume Hughes had that knowledge.
21 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 22 of 23
Roberts resists this outcome, arguing “there is ample evidence for a reasonable jury
to find causation between Gestamp’s decision and Roberts’[s] FMLA rights.” Reply Br.
at 19. But he only discusses Slater’s knowledge and conduct to show improper animus.
Relying on our decision in Hill v. Lockheed Martin Logistics Management, Roberts argues
we can impute Slater’s motives to Hughes and Gestamp because “Slater was ‘principally
responsible’ for the decision to fire” him, even if he wasn’t the “formal decisionmaker.”
Id. at 20 (quoting 354 F.3d 277, 288–89 (4th Cir. 2004) (en banc) (cleaned up)).
We disagree. In Hill, we disavowed “a test that would impute the discriminatory
motivations of subordinate employees having no decisionmaking authority to the
employer, . . . simply because they have influence or even substantial influence in effecting
a challenged decision.” Hill, 354 F.3d at 291. We think Slater falls into this category of
employee.
Even though the record shows that Slater had supervisory and some disciplinary
authority, there’s no evidence he had any role in terminating employees. Nor is there
evidence he took a position on whether to fire Roberts. And while Slater’s report that
Roberts missed work may have substantially influenced Hughes’s decision, no reasonable
jury could find that Slater was the actual decision-maker behind Roberts’s termination. So
even if we accept Roberts’s (dubious) showing of Slater’s unlawful motives, Roberts’s
FMLA-retaliation claim still fails.
Roberts’s common law wrongful-discharge claim fails for the same reason as his
FMLA-retaliation claim. Like FMLA retaliation, West Virginia’s common law wrongful-
22 USCA4 Appeal: 20-2202 Doc: 36 Filed: 08/15/2022 Pg: 23 of 23
discharge claim depends on an employer’s motive. In Harless v. First National Bank in
Fairmond, the state’s Supreme Court of Appeals held that an “employer may be liable to
the employee for damages occasioned by [a] discharge” if “the employer’s motivation for
the discharge contravenes some substantial public policy principle.” 246 S.E.2d 270, 275
(W. Va. 1978). And in Burke v. Wetzel County Commission, the same court held that
FMLA violations can support a Harless wrongful-discharge claim. 815 S.E.2d 520, 539
(W. Va. 2018).
Even though Burke doesn’t expressly distinguish between FMLA-retaliation and
interference claims, we agree with Gestamp that only FMLA retaliation can support a
Harless wrongful-discharge claim. Harless creates a cause of action “where the
employer’s motivation for the discharge contravenes” public policy. 246 S.E.2d at 275
(emphasis added). Roberts is wrong to suggest that FMLA interference can support a
Harless claim because, as he admits, an employer’s “intent is irrelevant under an
interference claim.” Appellant’s Br. at 24 (citing Sharif v. United Airlines, 841 F.3d 199,
203 (4th Cir. 2016)).
Because summary judgment was proper against Roberts on his FMLA-retaliation
claim, we affirm the district court’s judgment against his common law wrongful-discharge
claim, as well.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED