USCA4 Appeal: 23-1360 Doc: 82 Filed: 07/31/2024 Pg: 1 of 15
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-1360
MICHAEL SHIPTON,
Plaintiff - Appellant,
v.
BALTIMORE GAS AND ELECTTRIC COMPANY; EXELON CORPORATION, EXELON BUSINESS SERVICES COMPANY, LLC; MICHAEL GROSSCUP; EDWARD WOLFORD; JEANNE STORCK; BINDU GROSS,
Defendants – Appellees,
and
THEOS MCKINNEY,
Defendant.
---------------------------------
A BETTER BALANCE; NATIONAL INSTITUTE FOR WORKERS’ RIGHTS; NATIONAL EMPLOYMENT LAWYERS ASSOCIATION,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Lydia Kay Griggsby, District Judge. (1:20-cv-01926-LKG)
Argued: March 21, 2024 Decided: July 31, 2024
Before HARRIS and BENJAMIN, Circuit Judges, and FLOYD, Senior Circuit Judge. USCA4 Appeal: 23-1360 Doc: 82 Filed: 07/31/2024 Pg: 2 of 15
Affirmed by published opinion. Senior Judge Floyd wrote the opinion in which Judge Harris and Judge Benjamin joined.
ARGUED: Tonya Baña, TONYA BAÑA, LLC, Baltimore, Maryland, for Appellant. Elena D. Marcuss, MCGUIREWOODS LLP, Baltimore, Maryland, for Appellees. Erika Jacobsen White, JOSEPH, GREENWALD AND LAAKE, P.A., Greenbelt, Maryland, for Amici Curiae. ON BRIEF: Adam T. Simons, Rebecca W. Lineberry, Baltimore, Maryland, Jonathan Y. Ellis, MCGUIREWOODS LLP, Raleigh, North Carolina, for Appellees. Jason Solomon, NATIONAL INSTITUTE FOR WORKERS’ RIGHTS, Concord, California; Carla Brown, CHARLSON BREDEHOFT COHEN BROWN & NADELHAFT, P.C., Reston, Virginia, for Amici Curiae.
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FLOYD, Senior Circuit Judge:
Appellant Michael Shipton appeals the district court’s order granting summary
judgment in favor of his employer Baltimore Gas & Electric (“BGE”) on claims related to
use of rights conferred under the Family Medical Leave Act (“FMLA”). For the reasons
cited below, we affirm.
I.
Shipton is a middle-aged man who has Type 2 diabetes. He worked at BGE, a
natural gas and electric utility company, as an underground gas mechanic, which is a
physically demanding job. Because of Shipton’s diabetes, he would periodically miss work
because his symptoms would flare up.
In August 2017, Shipton requested and was granted intermittent FMLA leave based
on a health provider certification that he was an uncontrolled diabetic who experienced
episodes of hypoglycemia. 1 A few months later, in January 2018, Shipton submitted and
was granted a nearly identical certification for his continued FMLA leave.
In April 2018, Shipton took two days off because of severe foot pain, caused by
neuropathy related to his diabetes. BGE informed him that the existing FMLA certification
established leave only for his diabetes-related hypoglycemia and not for the neuropathy.
When BGE questioned whether he could safety operate a commercial vehicle related to his
job, Shipton submitted letters, including one from his doctor, stating that he had not
1 Shipton’s physician assistant, Chelsey Hamershock, provided his certification. JA 90-94.
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suffered from complications of hypoglycemia since 2017. Shipton stated he believed his
certifications provided a “generalized statement about diabetes” and that he was able to use
FMLA leave for neuropathy. Shipton then submitted a new medical certification from his
treating endocrinologist describing his neuropathy symptoms. JA 214-18, 633, 636, 640.
BGE approved this request. JA 291-92, 294-97, 636. However, in June 2018, after Shipton
took additional days of FMLA leave, BGE told him the company was troubled by the
alleged “conflicting medical documentation” in his paperwork and terminated his
employment. JA 108, 276.
In June 2020, Shipton filed a complaint in federal court citing interference and
retaliation claims based on his use of FMLA leave against BGE, Exelon Corporation, and
Exelon Business Services Company (“EBSC”) and various individual defendants—
Michael Grosscup (Shipton’s direct supervisor), Edward Woolford (Shipton’s second level
supervisor), and Bindu Gross (an ESBC employee who worked at BGE as labor relations
principal). 2 In their motion for summary judgment, defendants argued that Shipton could
not prevail on his claims because BGE terminated him based on an “honest belief” that he
misused his FMLA leave and submitted conflicting medical documentation. Defendants
argued his remaining claims based on events prior to his termination were time-barred
because there was no evidence defendants recklessly or knowingly violated the FMLA and
therefore no basis to apply the FMLA’s extended three-year statute of limitations.
The district court granted summary judgment in favor of defendants as to all of
2 BGE is a subsidiary of Exelon Corporation, which is an affiliate of ESBC.
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Shipton’s claims, denied Shipton’s cross motion for summary judgment, and dismissed his
amended complaint. JA 738-39, 753-61. Shipton timely appeals.
On appeal, Shipton argues the district court erred in applying the “honest belief
doctrine,” in granting summary judgment on Shipton’s claims in light of the evidence in
the record, in granting summary judgment on Shipton’s claims that predated termination
of employment, and in dismissing defendants Exelon, ESBC, and individual defendants.
National Institute for Workers’ Rights, National Employment Lawyers Association, and a
Better Balance filed an amicus brief supporting Shipton and participated in oral argument.
II.
A.
The Court reviews a district court’s grant of summary judgment de novo, “applying
the same legal standards as the district court, and viewing all facts and reasonable
inferences therefrom in the light most favorable to the nonmoving party.” Heyer v. U.S.
Bureau of Prisons, 849 F.3d 202, 208 (4th Cir. 2017) (quoting TMobile Ne., LLC v. City
Council of Newport News, 674 F.3d 380, 384–85 (4th Cir. 2012)). Summary judgment is
appropriate if there is “no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a).
The FMLA entitles eligible employees to take “12 workweeks of leave” during a
12-month period for a qualifying “serious health condition that makes the employee unable
to perform the functions of” his job. 29 U.S.C. § 2612(a)(1)(D). “When an employee
requests FMLA leave, or when the employer acquires knowledge that an employee’s leave
may be for an FMLA-qualifying reason, the employer must notify the employee of the
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employee’s eligibility to take FMLA leave within five business days, absent extenuating
circumstances.” 29 C.F.R. § 825.300(b)(1). If the employer determines that the requested
leave will not be designated as FMLA-qualifying, “the employer must notify the employee
of that determination.” Id. § 825.300(d)(1).
The FMLA makes it unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise any right provided under the FMLA. 29 U.S.C.
§ 2615(a)(1). An employee has a cause of action under 29 U.S.C. § 2617 when they can
prove that “(1) the employer interfered with his exercise of FMLA rights and (2) the
interference caused the employee prejudice.” Adkins v. CSX Transp., Inc., 70 F.4th 785,
796 (4th Cir. 2023). Thus, to make out an FMLA interference claim, an employee must
demonstrate that “(1) he is entitled to an FMLA benefit; (2) his employer interfered with
the provision of that benefit; and (3) that interference caused harm.” Adams v. Anne
Arundel Cnty. Pub. Schs., 789 F.3d 422, 427 (4th Cir. 2015). Interference claims are
“prescriptive.” Id. at 426. This means employer intent is irrelevant and all a plaintiff must
show is that they qualified for a right that was denied. Sharif v. United Airlines, Inc., 841
F.3d 199, 203 (4th Cir. 2016).
In an FMLA retaliation claim, it is “unlawful for any employer to discharge or in
any other manner discriminate against any individual for opposing any practice made
unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). Unlike interference claims,
retaliation claims are proscriptive and, therefore, employer intent is relevant. A plaintiff
can demonstrate FMLA retaliation by either (1) producing direct and indirect evidence of
retaliatory animus or (2) demonstrating “intent by circumstantial evidence, which we
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evaluate under the framework established for Title VII cases in McDonnell Douglas.” Fry
v. Rand Constr. Corp., 964 F.3d 239, 244 (4th Cir. 2020) (internal citation omitted).
Under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–
06 (1973), an employee must make prima facie showing that he engaged in protected
activity, that the employer took adverse action against him, and that adverse action was
casually connected to the plaintiff’s protected activity. Yashenko v. Harrah’s NC Casino
Co., LLC, 446 F.3d 541, 550–51 (4th Cir. 2006). If the employee demonstrates sufficient
evidence to support a prima facie showing of retaliation, and the employer offers a non-
discriminatory explanation for the termination, the employee bears the burden of
establishing the employer’s proffered explanation is pretext for FMLA retaliation. Id.
We consider Shipton’s arguments in turn.
B.
Shipton first argues that the district court misapplied the “honest belief doctrine” to
this case. The doctrine states an employer does not interfere with an employee’s exercise
of FMLA rights when it terminates an employee based on the “honest belief” that the
employee is not taking FMLA leave for an approved purpose, regardless of whether such
belief is correct. The Fourth Circuit has expressly declined to address the application of
the “honest belief doctrine” to FMLA interference claims or retaliation claims. See, e.g.,
Adkins, 70 F.4th at 795 (explaining the doctrine but not addressing it in the FMLA
interference context because plaintiffs’ claim failed on other grounds); Sharif, 841 F.3d at
207 n.2 (noting the parties argued extensively over application of the “so-called” honest
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belief rule to the plaintiff’s FMLA retaliation claim but declining to address the doctrine
because the issues of the case were “most profitably addressed through the well-established
proof scheme of McDonnell Douglas and its progeny”).
We again decline to address the doctrine today. Notably, in the district court below
Shipton did not argue the district court erred in applying the doctrine. Instead, Shipton
argues that the evidence did not support BGE’s “honest” belief. Shipton v. Baltimore Gas
& Elec. Co., No. 20-cv-01926 (D. Md.), Pl.’s Mem. in Opp’n to Defs.’ Mot. for Summ. J.
and Cross-Mot. for Summ. J., ECF No. 50; Pl.’s Reply, ECF No. 64. “It is well established
that this court does not consider issues raised for the first time on appeal, absent exceptional
circumstances.” Hicks v. Ferreyra, 965 F.3d 302, 310 (4th Cir. 2020) (cleaned up).
Shipton does not point to any “exceptional circumstances” that necessitate our review of
this issue for the first time, and this Court cannot find anything in the record that
demonstrates “a reason sufficient to clear this high bar.” Williams v. Kincaid, 45 F.4th
759, 776 (4th Cir. 2022) (cleaned up). In fact, Shipton did not file a reply to explain the
new argument on appeal. Regardless, the issue raised in the district court—refuting BGE’s
“honest” belief—is distinct from the one raised on appeal, questioning whether the doctrine
applies whatsoever, and therefore did not sufficiently preserve the issue for appellate
consideration. We require preservation of issues to ensure district courts “be fairly put on
notice as to the substance of [an] issue” before resolving it in the first instance. Nelson v.
Adams USA, Inc., 529 U.S. 460, 469 (2000). This calls for parties to “do more than raise
a non-specific objection or claim.” Wards Corner Beauty Acad. v. Nat’l Accrediting
Comm’n of Career Arts & Scis., 922 F.3d 568, 578 (4th Cir. 2019).
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Even if Shipton responded to the preservation issue, we do not find exceptional
circumstances exist in the instant case. Additionally, the record demonstrates that the
district court did not err in granting summary judgment in both the FMLA interference and
retaliation claims.
FMLA retaliation and interference claims are different causes of action and Shipton
cannot demonstrate a genuine dispute of material fact on either action. As noted above, a
cause of action for FMLA inference requires a showing that the employer interfered with
FMLA rights, and the interference caused the employee prejudice. Adkins, 70 F.4th at 796.
FMLA interference is prescriptive and employer intent is not relevant. Sharif, 841 F.3d at
203. Shipton argues the district court erred in awarding summary judgment because the
court failed to consider that Shipton later submitted a request due to neuropathy (where it
originally specified leave for hypoglycemia), and the request was approved. Opening Br.
43-44. The record demonstrates conflicting paperwork, and therefore Shipton’s argument
that just because he submitted a later request nullifies the claim of misconduct is incorrect.
In Adkins, employers terminated the employees after an investigation into their dishonesty
over use of medical leave. Adkins, 70 F.4th at 797 (citing Vannoy v. Fed. Rsrv. Bank of
Richmond, 827 F.3d 296, 304–05 (4th Cir. 2016) (“The FMLA does not prevent an
employer from terminating an employee for poor performance, misconduct, or
insubordinate behavior.”)). We were clear in Adkins that “employers must be able to
investigate and address plausible allegations that employees have been dishonest in their
medical leave claims.” Id. Therefore, because the FMLA allows for an employee to be
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terminated for misconduct, the district court did not err in granting summary judgment as
to the interference claim. 3
Shipton’s FMLA retaliation claim cannot prevail either. Shipton argues the district
court did not take into account the following direct evidence: (1) his FMLA certifications
covered him for any diabetes-related conditions; (2) BGE’s documents showed that he took
FMLA leave for neuropathy (notwithstanding his certification for hypoglycemia); and (3)
Gross “admitted” that the basis for BGE’s decision to terminate Shipton’s employment “is
the fact that he was using FMLA for neuropathy when Hamershock’s certifications only
mentioned that he needed leave for episodes of hypoglycemia.” Opening Br. 44-45.
However, as the undisputed evidence shows, Shipton submitted certifications that he took
FMLA leave for hypoglycemia and later submitted letters from the same healthcare
providers that he had not experienced hypoglycemia for over two years. After BGE
investigated and found his medical paperwork and statements contradictory, it believed he
was misusing leave. Just because BGE’s termination reason was related to his FMLA
leave, that is not necessarily direct evidence of discriminatory intent. We have said
employee discipline for suspected dishonesty related to FMLA leave is not alone
3 Shipton’s brief is unclear as to what his theory of interference is. We assume Shipton’s theory is the right for an employee who takes FMLA leave for its intended purpose to be “restored to their position or an equivalent position.” 29 U.S.C. § 2614(a)(1). However, we have noted the FMLA does not afford an employee an “absolute right to restoration.” Yashenko, 446 F.3d at 549.
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necessarily evidence of discriminatory intent, and reiterate so again. Adkins, 70 F.4th at
793. 4
Shipton also cannot show a genuine dispute as to indirect evidence under the
McDonnell Douglas burden-shifting framework. Shipton met his prima facie burden of
showing that (1) he engaged in protected activity, notably the use of FMLA leave; (2) BGE
took adverse action against him; and (3) a causal nexus exists between the use of FMLA
leave and termination. Therefore, the burden shifts to BGE to articulate a legitimate,
nondiscriminatory reason for terminating Shipton. Yashenko, 446 F.3d at 550-51; Laing v.
Fed. Exp. Corp., 703 F.3d 713, 721 (4th Cir. 2013). BGE’s proffered reason for
terminating Shipton was misuse of FMLA leave.
But Shipton has not demonstrated that BGE’s reasoning was pretextual, the last step
in the burden-shifting framework. As we stated in Adkins, our focus must be on the
“perception of the decisionmaker.” Adkins, 70 F.4th at 794 (internal citations omitted).
Shipton argues that BGE’s reasoning was pretextual because BGE employees made up
“false” allegations that Shipton was misusing his FMLA leave and inappropriately
considered his FMLA leave during performance reviews. JA 759. However, BGE’s
proffered reason does not appear pretextual, and Shipton’s evidence does not amount to a
Shipton combats the contention that BGE believed Shipton was dishonest by citing 4
to Gross’s deposition, in which he stated Shipton was not dishonest and just believed the certification covered all diabetes-related complications, including his neuropathy. JA 572. However, in the same statement Gross indicated he still could not reconcile the fact that Shipton had conflicting paperwork. Therefore, we find this statement does not rise to the level of a genuine dispute of material fact.
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genuine dispute of material fact. The evidence in the record demonstrates that BGE
believed he was misusing leave. While he may not have been actually misusing leave and
clarified his FMLA certification after the fact, this inquiry only has us determine whether
the employer’s reason was legitimate and nondiscriminatory at the time and not “whether
the reason was wise, fair, or even correct.” Adkins, 70 F.4th at 794. In short, the
undisputed evidence shows that BGE believed Shipton was misusing his FMLA leave.
BGE conducted fact-finding interviews, and because it could not reconcile conflicting
paperwork, it terminated him. Just because Shipton can now explain (or attempted to
explain it when BGE brought up the discrepancy) some of the conflicting statements and
his medical paperwork, we find his explanation does not amount to a genuine dispute as to
the employer’s reasoning at the time of the termination. We have been clear that courts do
not “sit as a kind of super-personnel department weighing the prudence of employment
decisions.” Feldman v. Law Enf't Assocs. Corp., 752 F.3d 339, 348 (4th Cir. 2014)
(quoting DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)).
Because it is undisputed that Shipton submitted conflicting medical paperwork that
BGE could not reconcile, and even though Shipton genuinely believed he was
appropriately using FMLA leave for neuropathy (because his certification encompassed all
diabetes-related complications), his termination did not violate FMLA protections. An
employer should be able to investigate claims of FMLA misuse, and even though Shipton
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can now explain the discrepancies, BGE had credible reason to terminate Shipton. 5 See,
e.g., Tillman v. Ohio Bell Tel. Co., 545 F. App’x 340, 362 n.13 (6th Cir. 2013) (Rosen, J.,
concurring) (“Nothing in this regulation even remotely requires that an employer show that
its legitimate reason is ‘unrelated’ to the employee’s exercise of FMLA rights in all
cases.”).
C.
Next, Shipton argues the district court erred in granting summary judgment on his
claims that predated his termination in June 2018.
Shipton filed suit in 2020, and the default statute of limitations under the FMLA is
two years. 29 U.S.C. § 2617(c)(1). However, if the employer engaged in a willful violation
of the FMLA, the limitations period is extended to three years. 29 U.S.C. § 2617(c)(2).
Shipton must demonstrate that BGE “knew or showed a reckless disregard regarding
whether its conduct was prohibited.” Settle v. S.W. Rodgers Co., 182 F.3d 909 (4th Cir.
1999) (unpublished table decision). Shipton’s evidence that BGE employees accused him
of misusing leave was part of their investigation to monitor the conflicting statements and
monitor his absences. Because BGE attempted to get to the root of conflicting medical
certifications and paperwork, those statements do not rise to an FMLA violation, let alone
5 Of course, we do not hold that an employer has carte blanche authority to terminate an employee on the basis of unsubstantiated claims of misconduct related to FMLA leave. An employer must have a legitimate basis for believing an employee committed misconduct related to use of FMLA leave. Vannoy, 827 F.3d at 305 (finding employer had legitimate, non-discriminatory reasons for adverse employment action where employee failed to communicate properly about unscheduled absences and failed to complete performance improvement plan).
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a willful violation. Shipton therefore is not entitled to the extended statute of limitations
for his claims made under the FMLA.
D.
Lastly, Shipton argues the district court erred in granting summary judgment in
favor of Exelon, EBSC, and the individual defendants on the ground they were not
Shipton’s “employer” under the FMLA.
Under the FMLA, an employer is “any person who acts, directly or indirectly, in the
interest of an employer to any of the employees of such employer.” 29 U.S.C.
§ 2611(4)(A)(ii)(I). “Where one corporation has an ownership interest in another
corporation, it is a separate employer” unless it meets either the joint employer or integrated
employer test. 29 C.F.R. §§ 825.104, 825.106. While Shipton discusses the joint employer
test, he does not show that it applies here.
Shipton argues that Exelon and ESBC are also liable because Exelon’s name is on
various policy documents, and Gross was an ESBC employee who provided services to
BGE. However, this does not necessarily show evidence of common management or
centralized control, as is required to show a joint employer. See, e.g., Engelhardt v. S.P.
Richards Co., 472 F.3d 1, 6 (1st Cir. 2006) (refusing to hold parent company liable based
on subsidiary’s adoption of its policies, employment documents, forms, and payroll
services).
While Shipton argues that there is substantial evidence that the three individual
named defendants played a part in events that culminated in Shipton’s termination, he does
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not point to any evidence they had “sufficient responsibility or stature within the [defendant
employer] to warrant the imposition of personal liability under the FMLA.” Caire v.
Conifer Value Based Care, LLC, 982 F. Supp.2d 582, 598 (D. Md. 2013) (alteration in
original) (citation omitted).
Accordingly, we affirm the district court’s grant of summary judgment on the
grounds that Exelon, EBSC, and the individual defendants were not Shipton’s “employer”
under the FMLA.
III.
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED