Edward Render v. Fca Us, LLC

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0241p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EDWARD RENDER,
Plaintiff-Appellant,
v.
FCA US, LLC,
Defendant-Appellee.
┐
│
│
│
│
│
│
│
│
┘
No. 21-2851
Appeal from the United States District Court for the Eastern District of Michigan at Port Huron.
No. 3:19-cv-12984—Robert H. Cleland, District Judge.
Argued: June 1, 2022
Decided and Filed: November 16, 2022
Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Eric Stempien, STEMPIEN LAW, PLLC, Livonia, Michigan, for Appellant. Terry
Bonnette, NEMETH LAW, P.C., Detroit, Michigan, for Appellee. ON BRIEF: Eric Stempien,
STEMPIEN LAW, PLLC, Livonia, Michigan, for Appellant. Terry Bonnette, Nicholas
Huguelet, NEMETH LAW, P.C., Detroit, Michigan, for Appellee.
CLAY, J., announced the judgment, delivered the opinion of the court, in which
SUHRHEINRICH and MOORE, JJ., joined, with respect to the retaliation claim, and delivered
an opinion with respect to the interference claim. MOORE, J. (pp. 23–30), wrote a separate
opinion, in which SUHRHEINRICH, J., joined, concurring in part in J. Clay’s majority opinion,
and delivered the opinion of the court with respect to the interference claim.
>

-- 1 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 2
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff Edward Render (“Render”) sued his former employer,
FCA US, LLC (“FCA”), under the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et
seq., alleging that FCA wrongfully denied him FMLA medical leave in violation of 29 U.S.C.
§ 2615(a)(1), and that FCA retaliated against him for requesting FMLA leave in violation of
29 U.S.C. § 2615(a)(2). FCA moved for summary judgment on both claims, which the district
court granted. Render v. FCA US LLC, No. 19-12984, 2021 WL 3085401, at *9 (E.D. Mich.
July 20, 2021). For the reasons set forth below, we REVERSE the district court’s order and
REMAND for further proceedings.
I. BACKGROUND
A. Factual Background
Edward Render started working for FCA on January 3, 2013, as an assembly line worker
at FCA’s Trenton Engine Complex. Eventually he moved into a more specialized position
cutting cranks for engines. FCA originally terminated his employment on September 14, 2015,
for attendance infractions. But Render filed a grievance through his union representative
challenging his termination. Ultimately, FCA conditionally reinstated him on April 10, 2017 and
Render agreed to a one year probationary period. Under the terms of his Conditional
Reinstatement Letter, FCA could terminate him if he incurred two unexcused tardies or one
unexcused absence during his probationary period.
On October 24, 2017, about six months after his reinstatement, Render applied for
intermittent FMLA leave. Sedgwick, FCA’s third party leave administrator, replied on October
26, 2017, asking Render to provide medical documentation to support his request. Render’s
doctor then submitted a medical certification form on November 9, 2017. His doctor noted that
he needed intermittent FMLA leave to manage his major recurrent depression and
moderate/generalized anxiety disorder. The medical certification form noted that Render was
unable to perform “[a]ny/all duties related to [his] job during [a] flare-up of symptoms.” (Med.

-- 2 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 3
Certification Form, R. 22-14, Page ID #190.) Render therefore requested up to three to four days
of intermittent leave per month to manage his flare-ups. Sedgwick responded with a second
letter on November 14, 2017, with the subject “Approval of Intermittent Employee Medical
Leave.” (Nov. 14 Sedgwick Letter, R. 22-15, Page ID #191.) The letter conditionally approved
Render’s request and noted that he could take up to four FMLA leave days per month. However,
the letter also noted that Sedgwick would “review [his] eligibility as of [his] first day absent to
determine if [he] met all eligibility requirements” at the time he used his leave. (Id.)
The letters from Sedgwick gave Render conflicting instructions about how to call in to
use his intermittent FMLA leave days. The first letter from Sedgwick (asking Render for more
medical documentation) gave the following instructions:
As a reminder, you are required to report all absences and tardiness in accordance
with FCA’s mandatory Call-in Procedure. A failure to properly report any
absence or tardy from work may result in disciplinary action, up to and including
discharge. The Call-in number to report all absences is as follows: 1-800-810-
[xxxx]. Absences and tardiness can be reported 24 hours, 7 days/week.
In addition, you must contact the FCA Service Center at 1-888-322-[xxxx] to
confirm your first day of absence. You will be advised of your eligibility
determination within 5 business days (absent extenuating circumstances) of
receiving notice of your first day of absence.
(Oct. 24 Sedgwick Letter, R. 22-13, Page ID #180–81.) But Sedgwick’s second letter
(approving Render’s request for intermittent FMLA leave) gave different instructions:
Actions Required:
1. First Date Absent Notification: Contact Sedgwick at the number listed below
on the date of your first FMLA-related absence or tardy. . . .
3. Intermittent Absence Time Reporting - Since you have requested
intermittent leave, you are required to report all absences and tardiness in
accordance with FCA’s mandatory Call-in Procedure. A failure to properly report
any absence or tardy from work may result in disciplinary action, up to
and including discharge. The Call-in number to report all absences is as follows:
1-800-810-[xxxx]. Absences and tardiness can be reported 24 hours,
7 days/week.
(Nov. 14 Sedgwick Letter, R. 22-15, Page ID #191–92.) The letter did not list any other phone
number besides the 1-800 number in the “Actions Required” list. Seven paragraphs down from

-- 3 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 4
these instructions, the letter included a closing note stating that, “If you have questions, require
additional information, or experience a change in your circumstances, please contact the FCA
Service Center at 1-888-322-[xxxx] . . . to speak with a Customer Service Representative.” (Id.
at Page ID #192.)
FCA’s human resources representative, LaVonda Mitchell, gave contradictory statements
at her deposition about how employees were required to report FMLA absences. Generally,
employees must report an absence or tardy by calling FCA at the 1-800 number listed in
Sedgwick’s letters. At first, Mitchell said that there is not a separate call-in line for people who
are using FMLA leave. Therefore, employees wishing to use FMLA leave simply needed to call
the 1-800 number and report their absence. But Mitchell’s summary of the proper procedures
changed after she saw the letters that Sedgwick sent to Render. At that point in her deposition,
she said that employees had to make two calls: one to FCA (the 1-800 number) and one to
Sedgwick. Still, Mitchell did not know how employees were supposed to contact Sedgwick, and
she did not know if the 1-888 number belonged to Sedgwick or to FCA.
Render believed that, to use his FMLA leave, he simply had to call the 1-800 number and
report his absence. He “didn’t realize there was a second number.” (Render Dep., R. 22-2, Page
ID #144.) He “thought what [FCA and Sedgwick] would do is just have [him] call one number,
and they . . . would go from there.” (Id.)
After his reinstatement in April 2017, Render was tardy three times and absent twice. He
incurred an unexcused tardy on September 6, 2017—before he had applied for FMLA leave.
After Sedgwick approved his intermittent leave request, he was absent on December 6 and 7,
2017. On December 6, Render called in absent. FCA produced a transcript of this call, which
documented the following exchange with someone from “FCA Group Attendance:”
THE OPERATOR: And are you calling in absent or tardy?
MR. RENDER: Absent.
THE OPERATOR: Absent due to what?
MR. RENDER: I’m having a flare-up. I don’t feel good at all. . . .
THE OPERATOR: Absent due to what?
MR. RENDER: Oh, I gotta go to the doctor. I don’t feel good, flare – I’m having
flare-ups.

-- 4 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 5
THE OPERATOR: So illness?
MR. RENDER: Yes.
(Call Tr., R. 22-16, Page ID #194.) The operator gave Render a confirmation number and told
him to call back if he needed more time. Although FCA had a record of this call, Sedgwick did
not.
Render was again absent on December 7. Although he said that he called the 1-800
number again to report his absence, FCA did not have any call records from that day. However,
Sedgwick’s case notes indicated that Render did call in on December 7. But there is no
transcript of this call. Render recalled telling the operator that he “was calling in for FMLA – to
use an FMLA day.” (Render Dep., R. 22-2, Page ID #143.)
On December 8, 2017, Render called in tardy. FCA produced a transcript of this call.
This time, he told the operator that he had “been sick the last few days.” (Call Tr., R. 22-16,
Page ID #196.) The operator asked whether the tardy was “personal” or “other,” to which
Render responded “Yeah personal – or other.” (Id.) Like on December 6, Sedgwick’s notes did
not indicate that Render called in tardy on December 8.
Finally, Render called in tardy again on January 5, 2018. When asked why, Render said
he was “having a flare-up right now, and [he didn’t] feel good at all.” (Call Tr., R. 22-16, Page
ID #198–99.) The operator then said, “I put other reasons, in the comments I put sick, . . . is that
right?” (Id. at Page ID #199.) Render confirmed that was correct. Each of these absences and
tardies was marked by FCA as “MISU,” meaning miscellaneous unexcused.
At his deposition, Render said that he used the word FMLA each time he called in. He
admits, however, that he never specifically mentioned that he was suffering from anxiety and
depression related illnesses in any of his calls. Render explained that he “was embarrassed” and
he “didn’t want to tell them what [he] was really going through.” (Render Dep., R. 22-2, Page
ID #150.)
At this point, the record gets muddled with documents and testimony about what
happened next. Render’s case file with Sedgwick includes several entries about his call-ins. In
the days after each absence, Sedgwick’s notes indicated “Review Pending.” Render called

-- 5 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 6
Sedgwick on December 8 and spoke with a Sedgwick employee, Joseph Moore. According to
Moore’s notes from this call, Render called in on December 7, but not on December 6 or 8.
Whereas FCA’s records indicated that Render called in on December 6 and 8, but not on
December 7. The record does not include any depositions from Sedgwick employees to explain
the case notes.
After returning to work on December 8, Render talked to one of his supervisors
(identified only as “J.R.”) about his absences. J.R. approached Render and said that he “noticed
[Render] took FMLA.” (Render Dep., R. 22-2, Page ID #146.) Based on that comment, Render
assumed that everything was fine and his FMLA had been approved. But, a few days later,
another one of Render’s supervisors, LaToya Bradford, approached Render and told him that he
had missed some days but that she did not see those absences in the system. Render showed
Bradford the confirmation numbers he received when he called in, but Bradford said that she
could not use those numbers. Bradford told Render to try calling again to see if they had any
different confirmation numbers. Render did as Bradford instructed, called again, and received
the same confirmation numbers. Render did not specify what phone number he called at this
time “because [he] just had the number . . . on the phone that said FMLA.” (Id. at Page ID
#145.) Shortly thereafter, Bradford told Render that a human resources representative, Mitchell,
wanted to speak with him. Mitchell said that FCA’s systems showed that Render was off
between December 6 and 8, but that FCA “d[idn’t] have a record of it.” (Id. at Page ID #144.)
Mitchell did not recognize the confirmation numbers that Render provided, but she said that she
would call Sedgwick and get back to Render about his absences. But Mitchell never followed up
with Render.
By December 8, Mitchell knew that Render was claiming FMLA leave to cover his
tardies and absences. Knowing this, Mitchell emailed a Sedgwick employee, Skylar Brum, on
December 11. Mitchell asked whether Render was “FMLA approved or not?” (Sedgwick Case
Notes, R. 24-13, Page ID #382.) Mitchell wrote:
[Render] claims calling FMLA absent for 12-6-17 and 12-7-17. For 12-7-17, I
don’t even show a call-in. In addition, he claims calling FMLA tardy for 12-8-17.
None of his calls show FMLA.
Please let me know . . . .

-- 6 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 7
(Id.) Brum responded stating that:
This claim is contingently approved with no absences coded as FMLA. I do see
absences in [his timesheet] for 12/06, 12/07 and 12/08/2017 with time lost
however they are coded as MISU.
(Id. at Page ID #381.) Mitchell asked Sedgwick for more details on December 20, saying that
she “[j]ust needed to clarify as [Render] is up for termination due to these absences.” (Sedgwick
Case Notes, R. 22-18, Page ID #209.) Sedgwick replied that “due to the employee absences not
being coded under FMLA in [FCA’s timesheet system] [Sedgwick] can’t apply them to the
claim.” (Id.) Mitchell then reached out to FCA’s attendance manager, Shawn Searcy, who
looked at the call recordings from the days Render was absent. Searcy told Mitchell that Render
“did not say FMLA on the call.” (Mitchell Dep., R. 22-3, Page ID #166.) Mitchell then
contacted FCA’s FMLA administrator, Anne Stebbins. Mitchell gave Stebbins a summary of
Render’s case, and Stebbins “confirmed that there was no FMLA approved.” (Id.) Mitchell then
consulted with her supervisor and concluded that Render should be terminated.
On January 11, 2018, Render was called into a meeting with Bradford, J.R., and Mitchell.
Mitchell told Render that FCA was terminating him for violating his Conditional Reinstatement
Letter. The alleged violation was that Render had incurred three tardies and two absences.
Specifically, Mitchell pointed to his tardies on September 6, 2017, December 8, 2017, and
January 5, 2018, and his absences on December 6 and 7, 2017. Mitchell gave him a Notice of
Discharge and escorted him out of the building.
B. Procedural Background
Render filed his Complaint on October 10, 2019. He brought two FMLA claims against
FCA: interference and retaliation. See 29 U.S.C. § 2601, et seq. After the close of discovery,
FCA moved for summary judgment on both claims. The district court granted FCA’s motion
and entered judgment in favor of FCA. Render, 2021 WL 3085401, at *9. Specifically, the
district court found that Render had not made out a prima facie FMLA interference claim
because he did not give sufficient notice to FCA before his absences and tardies in December
2017 and January 2018. Id. at *7–*9. It then found that, because Render had not properly
requested FMLA leave, his retaliation claim likewise failed because he could not show that he

-- 7 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 8
had engaged in protected activity and that FCA knew about that protected activity. Id. at *9.
Render timely appealed.
II. DISCUSSION
A. Standard of Review
“We review the district court’s grant of summary judgment de novo.” Kirilenko-Ison v.
Bd. of Edu. of Danville Indep. Schs., 974 F.3d 652, 660 (6th Cir. 2020) (quoting George v.
Youngstown State Univ., 966 F.3d 446, 458 (6th Cir. 2020)). Summary judgment is proper “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute of a material fact is
genuine so long as ‘the evidence is such that a reasonable jury could return a verdict for the non-
moving party.’” Kirilenko-Ison, 974 F.3d at 660 (quoting Jackson v. VHS Detroit Receiving
Hosp., Inc., 814 F.3d 769, 775 (6th Cir. 2016)).
“When evaluating a motion for summary judgment, this Court views the evidence in the
light most favorable to the party opposing the motion.” Id. (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “This includes drawing ‘all justifiable
inferences’ in the nonmoving party’s favor.” Id. (quoting George, 966 F.3d at 458). Moreover,
“[i]n reviewing a summary judgment motion, credibility judgments and weighing of the evidence
are prohibited.” Id. (quoting Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir.
2009)).
B. Analysis
The FMLA provides that “an eligible employee shall be entitled to a total of 12 work
weeks of leave during any 12-month period . . . [b]ecause of a serious health condition that
makes the employee unable to perform the functions of [his] position.” 29 U.S.C.
§ 2612(a)(1)(D). If an employee is approved for a period of FMLA leave, then the employer
must “restore[] . . . the employee to the position of employment held by the employee when the
leave commenced” and the period of FMLA leave “shall not result in the loss of any employment
benefit accrued prior to the date on which the leave commenced.” Id. § 2614(a)(1)–(2).

-- 8 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 9
“This court recognizes two distinct theories for recovery under the FMLA: (1) the ‘entitlement’
or ‘interference’ theory arising from 29 U.S.C. § 2615(a)(1); and (2) the ‘retaliation’ or
‘discrimination’ theory arising from 29 U.S.C. § 2615(a)(2).” Hoge v. Honda of Am. Mfg., Inc.,
384 F.3d 238, 244 (6th Cir. 2004). Render brought claims under each theory.
1. FMLA Interference Claim
Render first alleges that FCA interfered with his FMLA rights “by refusing to classify
[his] absences appropriately as FMLA leave.” (Pl. Br. at 9.) The FMLA prohibits employers
from “interfer[ing] with, restrain[ing], or deny[ing] the exercise of or the attempt to exercise, any
right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). Examples of unlawful
interference include “refusing to authorize FMLA leave” when the employee is eligible and
counting FMLA leave under no-fault attendance policies. 29 C.F.R. § 825.220(b)–(c). “Under
the FMLA interference theory, ‘[i]f an employer interferes with the FMLA-created right to
medical leave . . . , a violation has occurred, regardless of the intent of the employer.’” Marshall
v. The Rawlings Co. LLC, 854 F.3d 368, 384 (6th Cir. 2017) (quoting Seeger v. Cincinnati Bell
Tel. Co., LLC, 681 F.3d 274, 282 (6th Cir. 2012)).
To make out a claim for FMLA interference, a plaintiff must show that “(1) he was an
eligible employee, (2) [the] defendant was a covered employer, (3) he was entitled to leave under
the FMLA, (4) he gave [the] defendant notice of his intent to take leave, and (5) the defendant
denied him FMLA benefits or interfered with FMLA rights to which he was entitled.” Harris v.
Metro Gov’t of Nashville & Davidson Cnty., 594 F.3d 476, 482 (6th Cir. 2010). There is no
dispute that Render was an eligible employee, that FCA was a covered employer, or that Render
was entitled to FMLA leave because of his serious medical condition. The parties dispute only
the fourth element, notice. If Render notified FCA that he intended to use his intermittent FMLA
leave, then there would be no dispute that FCA denied this request. The notice requirement
raises two issues in this case, the first focuses on whether Render complied with federal
regulatory requirements for giving notice while the second asks whether he sufficiently followed
FCA’s internal notice requirements.

-- 9 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 10
a. Regulatory Requirements
There are three provisions in the federal regulations that dictate how employees must
notify their employers of their intent to take FMLA leave. First, 29 C.F.R. § 825.301(b) gives
general instructions to all employees who want to designate leave as FMLA leave. In relevant
part, it provides that:
An employee giving notice of the need for FMLA leave does not need to
expressly assert rights under the Act or even mention the FMLA to meet his or
her obligation to provide notice, though the employee would need to state a
qualifying reason for the needed leave and otherwise satisfy the notice
requirements set forth in § 825.302 or § 825.303 depending on whether the need
for leave is foreseeable or unforeseeable.
Employees must therefore comply with this broader provision and one of the two specific
provisions that give detailed instructions to employees depending on whether the need for leave
was foreseeable or unforeseeable. Before turning to the ultimate question—whether Render
gave sufficient notice—we must address two preliminary issues.
The first issue is whether intermittent leave, like Render’s, falls within the foreseeable
leave provision (29 C.F.R. § 825.302) or the unforeseeable leave provision (29 C.F.R.
§ 825.303). The parties seemingly agree that intermittent FMLA leave is unforeseeable. Both
therefore cite and rely on § 825.303 to provide the applicable notice requirement. The district
court agreed and applied the unforeseeable leave regulation. Render, 2021 WL 3085401, at *5–
*6. But the regulation on unforeseeable leaves never mentions intermittent leave. See 29 C.F.R.
§ 825.303. In contrast, the regulation governing foreseeable leaves includes specific procedures
that apply to requests for intermittent leave. Id. § 825.302(a), (f). Thus, contrary to the
concurrence filed herein, based on the clear language of these regulations, intermittent leave is
treated as a type of foreseeable leave. See id. § 825.302. This may seem counterintuitive, since
the point of intermittent leave is that an employee is asking for approved FMLA leave for
unexpected and unpredictable absences. But, as this Court has explained, “[i]ntermittent leave is
leave taken in separate blocks of time for a single qualifying reason.” Festerman v. Cnty. of
Wayne, 611 F. App’x 310, 314 (6th Cir. 2015) (quoting Adams v. Honda of Am. Mfg., Inc.,
111 F. App’x 353, 355 (6th Cir. 2004)). Foreseeability thus turns on whether the qualifying

-- 10 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 11
reason, i.e., the illness or medical condition, was foreseeable. In intermittent leave cases, the
qualifying reason is known in advance, even if it is unclear when the condition will flare up and
require time off. In this case, Render’s depression and anxiety were known, and flare ups were
foreseeable, even if Render could not predict precisely when he would need to take FMLA leave
days. Render was therefore required to comply with the foreseeable leave regulation, 29 C.F.R.
§ 825.302.
The next issue is whether Render had to give notice when he first applied for intermittent
FMLA leave or on each day that he sought to use that leave. The parties also agree on this
question; they both focus on whether Render’s call-ins on December 6, 7, and 8, 2017, and on
January 5, 2018, satisfied the notice requirement. Again, both parties miss the mark when
reading these regulations. The regulation for foreseeable leaves provides that: “Whether FMLA
leave is to be continuous or is to be taken intermittently . . . notice need only be given one time,
but the employee shall advise the employer as soon as practicable if dates of scheduled leave . . .
were initially unknown.” 29 C.F.R. § 825.302(a) (emphasis added). Therefore, Render did not
need to give formal “notice” each and every time he called in to use his FMLA leave. Rather,
the regulation indicates that he needed to meet the notice requirement when he first sought
approval for intermittent leave because this was when FCA first learned about his qualifying
condition. See 29 C.F.R. § 825.301(b) (explaining that the notice rules only require an employee
to “state a qualifying reason for the needed leave”).
When applying for intermittent FMLA leave in the fall of 2017, Render arguably had to
comply with the heightened notice requirements for employees who have previously received
FMLA leave:
When an employee seeks leave for the first time for a FMLA-qualifying reason,
the employee need not expressly assert rights under the FMLA or even mention
the FMLA. When an employee seeks leave due to a FMLA-qualifying reason, for
which the employer has previously provided FMLA-protected leave, the employee
must specifically reference the qualifying reason for leave or the need for FMLA
leave. In all cases, the employer should inquire further of the employee if it is
necessary to have more information about whether FMLA leave is being sought
by the employee, and obtain the necessary details of the leave to be taken.

-- 11 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 12
29 C.F.R. § 825.302(c) (emphasis added). Render testified that, before his first termination and
reinstatement, he had previously received FMLA leave from FCA. However, he did not say
whether that prior leave was for the same qualifying condition (depression and anxiety). It is
therefore unclear whether he would fall within the heightened notice requirements for a repeat
applicant or whether he was applying for leave based on a different condition, which would
subject him to a lower notice standard. See 29 C.F.R. § 825.302(c). Even under the more
exacting standard, Render’s intermittent leave request provided sufficient notice.
There is no dispute that Render contacted Sedgwick on October 24, 2017, and
specifically referenced his need for FMLA leave. In response, Sedgwick asked Render for a
medical certification form, which Render submitted on November 9, 2017. The medical
certification form listed Render’s qualifying reason as major recurrent depression and moderate/
generalized anxiety disorder. Therefore, his formal FMLA approval process satisfied the one-
time notice requirement for intermittent leave. See 29 C.F.R. § 825.302(a). Render’s subsequent
calls on the days he wanted to use his leave did not need to “specifically reference either the
qualifying reason for leave or the need for FMLA leave.” Id. § 825.302(b). Render was under
no obligation to cite the reason for his absence with such specificity because he had already
given FCA formal notice of his qualifying condition.
Having previously given proper notice of his FMLA qualifying reason, Render merely
had to advise FCA of his schedule change on days that he wanted to use his intermittent leave.
See 29 C.F.R. § 825.302(a). On December 6—his first absence—he told the operator: “I’m
having a flare-up. I don’t feel good at all.” (Call Tr., R. 22-16, Page ID #194.) Although there
is no transcript of his call on December 7, Render testified that he told the operator that he “was
calling in for FMLA – to use an FMLA day.” (Render Dep., R. 22-2, Page ID #143.) Then on
December 8, when he called in tardy, Render referenced his earlier calls saying that he had “been
sick the last few days.” (Id. at Page ID #196.) Finally, when he called in tardy on January 5, he
said that he was “having a flare-up right now, and [he didn’t] feel good at all.” (Call Tr., R. 22-
16, Page ID #198–99.) This was sufficient to satisfy the regulatory requirements to use FMLA
leave because he had already given formal notice of his qualifying condition, and these calls
sufficiently advised his employer of his anticipated absences.

-- 12 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 13
Even if the notice requirement applied to his subsequent calls, Render argues that his use
of the term “flare-up” when he called in on three of the four days was sufficient to notify FCA
that he was trying to use his approved intermittent FMLA leave. While this Court has not
interpreted what “specifically reference” requires, Render’s reference to “flare-ups” would be
sufficient because his FMLA medical documentation repeatedly referenced his “flare-ups” of
depression and anxiety as the basis for his FMLA request. Referencing symptoms and language
that is used in an employee’s medical certification forms would be sufficient even if the notice
requirements applied to each call-in. See Evans v. Coop. Response Ctr., Inc., 996 F.3d 539, 549
(8th Cir. 2021). In Evans, 996 F.3d at 549, the Eighth Circuit applied the unforeseeable leave
notice requirements in § 825.303(b) and concluded that an employee did not give sufficient
notice when she called in to use her previously approved intermittent leave.1 Even if intermittent
leave fell within the unforeseeable regulation, which requires more than just “calling in sick,”
naming a symptom of the qualifying condition would be sufficient. See id. (finding that
employee failed to give proper notice during call-ins because “[t]he only notice she provided . . .
indicat[ed that] she lost her voice, had a slight fever, and had bodyaches, which were not listed as
symptoms of her reactive arthritis in her FMLA certification forms” (emphasis added)); see also
Germanowski v. Harris, 854 F.3d 68, 73–74 (1st Cir. 2017). When he called in absent, Render
used identical language to that found in his FMLA certification forms. That was sufficient to
meet his notice burden under any of the applicable regulations.
b. FCA Policy Requirements
FCA next argues that Render’s notice was nonetheless insufficient because it did not
comport with FCA’s internal policies. The FMLA leave regulations provide that “[a]n employer
may require an employee to comply with the employer’s usual and customary notice and
procedural requirements for requesting leave, absent unusual circumstances.” 29 C.F.R.
1FCA asks this Court to do the same. It argues that the more onerous unforeseeable leave provisions found
in 29 C.F.R. § 825.303 apply to Render. While mirroring most of the language from the foreseeable regulation,
§ 825.303 goes one step further and adds that “[c]alling in ‘sick’ without providing more information will not be
considered sufficient notice to trigger an employer’s obligations under the [FMLA].” 29 C.F.R. § 825.303(b).
However, as previously discussed, Render’s intermittent leave requests falls within the foreseeable leave regulations
in § 825.302, and this additional language does not apply to him. And, as discussed below, even if the unforeseeable
leave provision applied, Render has nonetheless satisfied the notice requirements found in that regulation.

-- 13 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 14
§ 825.302(d). For example, employers may require an employee to contact a specific person to
report their absences. Id.
On November 14, 2017, Sedgwick sent Render a letter conditionally approving his
request for intermittent FMLA leave. In a section titled “Actions Required,” the letter gave
Render list of instructions, starting with “[c]ontact Sedgwick at the number listed below on the
date of your first FMLA-related absence or tardy.” (Nov. 14 Sedgwick Letter, R. 22-15, Page ID
#191 (emphasis added).) That bullet point did not give a phone number. Under the third item in
the list, the letter told Render to “report all absences and tardiness in accordance with FCA’s
mandatory Call-in Procedure” by calling the 1-800 number. (Id. at Page ID #192 (emphasis
added).) The list ended there. No additional phone numbers were listed in the “Actions
Required” section. Seven paragraphs later, in the final paragraph, the letter said: “If you have
questions, require additional information, or experience a change in your circumstances, please
contact the FCA Service Center at 1-888-[xxx].” (Id. (emphasis added).) FCA argues that
Render failed to follow these instructions.2 Specifically, it faults Render for failing to call both
Sedgwick and FCA in advance of each tardy and absence.
In general, employers can establish call-in procedures, and they may deny FMLA leave if
an employee fails to follow those instructions. See 29 C.F.R. § 825.302(d); Alexander v. Kellogg
USA, Inc., 674 F. App’x 496, 500 (6th Cir. 2017); Perry v. Am. Red Cross Blood Servs., 651 F.
App’x 317, 328 (6th Cir. 2016). Accordingly, FCA could adopt a policy requiring employees to
call both Sedgwick and the FCA call-in line to report an FMLA absence. But an employee
cannot be faulted for failing to comply with company policy if the policy was unclear or the
employee lacked notice of the policy. See Clements v. Prudential Protective Servs., 556 F.
App’x 392, 396 (6th Cir. 2014) (finding employee met the notice element when employer’s “lack
2Sedgwick had sent a different letter on October 26, 2017, asking Render to complete a medical
certification form. That letter was not his FMLA approval letter, and it gave different call-in instructions. The
October 26 letter told Render that he needed to “report all absences and tardiness in accordance with FCA’s
mandatory Call-in Procedure” by calling the 1-800 number. (Oct. 24 Sedgwick Letter, R. 22-13, Page ID #181.)
The next paragraph stated, “[i]n addition, you must contact the FCA Service Center at 1-888-[xxx].” (Id. (emphasis
added).) The letter did not mention anything about contacting Sedgwick directly. On appeal, FCA points only to
the November 14 approval letter and argues that Render failed to comply with those instructions. Because it does
not allege that Render failed to comply with the differing instructions in the October 26 letter, we will not consider
the instructions in the earlier letter. We note, however, that FCA gave their employees conflicting instructions on
how to use FMLA leave.

-- 14 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 15
of communication led to the confusion” about employee’s FMLA obligations and based on “the
failure of [the] defendant to give its employees notice of how to proceed”); Alexander, 674 F.
App’x at 496 (employer could deny FMLA leave after human resources reminded the employee
of the call-in requirements, the employee still failed to comply, and the employee did not
otherwise “allege[] ignorance of [the employer’s] internal notice requirement”); Perry, 651 F.
App’x at 320, 328 (employer could deny FMLA leave because employee “was on notice that she
needed to call [the third party leave administrator], and it [was] undisputed that she did not do
so”).
In this case, Sedgwick’s letter was so confusing that even Mitchell, who worked in
FCA’s human resources department, could not decipher what it was asking employees to do.
Mitchell initially testified that all employees had to do was call FCA at the 1-800 number. Only
after reading Sedgwick’s letter to Render did she say that employees had to call both the FCA
call-in line and Sedgwick. But when asked which phone number belonged to Sedgwick,
Mitchell could not tell. Indeed, the letter said that both phone numbers belonged to FCA. (See
Nov. 14 Sedgwick Letter, R. 22-15, Page ID #190–91 (identifying 1-800 number as FCA’s Call-
in number and the 1-888 number as the FCA Service Center).) The letter did not clearly identify
a phone number for Sedgwick despite telling employees to “[c]ontact Sedgwick” at the “number
listed below.” (Id.) The only other phone number listed below was the “FCA Service Center” 1-
888 number, and that number was buried at the end of the letter, wholly apart from the list of
explicit instructions about the call-in procedure. These mangled instructions were so unclear that
even Mitchell could not figure out what they meant.
Understandably, Render did not follow these confusing instructions to a tee. He believed
that he simply had to call the 1-800 number and report his absence. He “didn’t realize there was
a second number.” (Render Dep., R. 22-2, Page ID #144.) We cannot fault him for failing to
call both FCA and Sedgwick when (1) the list of instructions only gave one phone number (the
one he called), and (2) the letter did not clearly list a phone number for Sedgwick. Moreover,
Render took other steps to ensure that he properly reported his FMLA days. In the days
immediately following his absences, he told two different supervisors that his absences were
FMLA days, and he followed up with Mitchell to ensure that his absences were properly coded.

-- 15 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 16
Mitchell admitted that, by December 8, she knew that Render was claiming FMLA leave
between December 6 and December 8. Based on these facts, a jury could find that Render gave
proper notice of his intent to take FMLA leave. He has therefore made out a prima facie
interference claim.
FCA suggests that the analysis should not stop there because the burden shifting
framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to
Render’s interference claim. Under McDonnell Douglas, once an employee makes out a prima
facie interference claim, then the burden shifts to the employer to provide a legitimate
nondiscriminatory reason for the alleged interference. Demyanovich v. Cadon Plating &
Coatings, L.L.C., 747 F.3d 419, 427 (6th Cir. 2014) (citing Donald v. Sybra, Inc., 667 F.3d 757,
761–62 (6th Cir. 2012)). If the employer does so, then the burden shifts back to the employee to
show that the proffered reason is pretextual. Id. (citing Donald, 667 F.3d at 761–62).
There remains some confusion over when McDonnell Douglas applies to interference
claims. As a starting point, McDonnell Douglas applies only when the employee relies on
circumstantial evidence to make his case. Wallace v. Edward W. Sparrow Hosp. Ass’n, 782 F.
App’x 395, 401 (6th Cir. 2019) (citing Donald, 667 F.3d at 762); Tillman v. Ohio Bell Tel. Co.,
545 F. App’x 340, 348 (6th Cir. 2013) (per curiam) (citing Seeger, 681 F.3d at 283). For
example, this Court has applied the burden shifting framework when an employee alleged that
his employer interfered with his FMLA rights by terminating him because employers can
terminate employees for many reasons—only some of which amount to FMLA interference. See
Demyanovich, 747 F.3d at 431. But when an employee shows that his employer denied him
FMLA benefits to which he was entitled, that is direct evidence of interference, and McDonnell
Douglas does not apply. See Travers v. Cellco P’ship, 579 F. App’x 409, 414 (6th Cir. 2014)
(“To recover on an interference claim, [the employee] must establish that the employer denied
the employee FMLA benefits to which she was entitled.” (citing Wysong v. Dow Chem. Co., 503
F.3d 441, 447 (6th Cir. 2007))); Festerman, 611 F. App’x at 314 (“[U]nlawful interference
occurs when an employer refuses to authorize leave for a qualified employee.” (citing George v.
Russell Stover Candies, Inc., 106 F. App’x 946, 949–50 (6th Cir. 2004)); Hurtt v. Int’l Servs.,

-- 16 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 17
Inc., 627 F. App’x 414, 424 (6th Cir. 2015) (describing denial of FMLA leave as “literal[]
interfere[nce]”).
In this case, Render has shown that he was entitled to FMLA benefits, and a jury could
find that FCA wrongfully denied him FMLA leave. Accordingly, the McDonnell Douglas
burden shifting framework does not apply. Because Render has pointed to sufficient facts to
make out a prima face interference claim, the district court erred in granting FCA’s motion for
summary judgment.
2. FMLA Retaliation Claim
Render next alleges that FCA “retaliated against [him] by discharging him for using
FMLA leave.” (Pl. Br. at 9.) Under the FMLA, employers are prohibited from “discharg[ing] or
in any other manner discriminat[ing] against any individual for opposing any practice made
unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). Unlike Render’s interference claim, his
retaliation claim is analyzed under the McDonnell Douglas burden shifting framework because
he relies on circumstantial evidence of retaliation. See Demyanovich, 747 F.3d at 432; Nieves v.
Envoy Air, Inc., 760 F. App’x 421, 427 (6th Cir. 2019) (citing Skrjanc v. Great Lakes Power
Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001)). Under this framework, if Render can establish a
prima facie retaliation claim, then the burden shifts to FCA to show that it had “a legitimate,
nondiscriminatory reason” for terminating him. Nathan v. Great Lakes Water Auth., 992 F.3d
557, 573 (6th Cir. 2021) (quoting Donald, 667 F.3d at 761). If FCA does so, the burden shifts
back to Render to show that FCA’s given reason was pretextual. Id. (citing Donald, 667 F.3d at
761–62).
a. Prima Facie Case
To make out a prima facie case, Render must show that:
(1) [he] was engaged in an activity protected by the FMLA; (2) the employer
knew that [he] was exercising [his] rights under the FMLA; (3) after learning of
the employee’s exercise of FMLA rights, the employer took an employment
action adverse to [him]; and (4) there was a causal connection between the
protected FMLA activity and the adverse employment action.

-- 17 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 18
Redlin v. Grosse Pointe Public Sch. Sys., 921 F.3d 599, 616 (6th Cir. 2019) (quoting Donald,
667 F.3d at 761).
After finding that Render did not properly request leave, the district court dismissed his
retaliation claim out of hand because Render did not engage in any protected activity and,
therefore, FCA could not have known about any protected activity. Render, 2021 WL 3085401,
at *9. The district court erred in coming to this conclusion. For the same reasons as discussed
above, Render alleges sufficient facts to support a finding that he properly requested FMLA
leave, and that FCA knew of this request. At the summary judgment stage, that satisfies the first
two elements of his retaliation claim. See Festerman, 611 F. App’x at 319 (employee engages in
protected activity and employer has knowledge when employee gives sufficient notice of his
intent to take FMLA leave); Basch v. Knoll, Inc., 619 F. App’x 457, 461 (6th Cir. 2015) (finding
that protected activity begins when employee requests intermittent leave and provides
certification of a qualifying medical reason).
FCA’s arguments to the contrary are meritless. It suggests that it did not know that
Render was asserting his rights under the FMLA because it “was aware only that Render claimed
his absences were for FMLA-qualifying reasons, not that they were in fact for FMLA-qualifying
reasons.” (Def. Br. at 32 (emphasis in original).) However, FCA knew Render was engaging in
protected activity when he first applied for intermittent leave in October 2017. See Basch, 619 F.
App’x at 461. Even if FCA were right that the protected activity began when Render went to use
his FMLA leave, FCA’s argument still misses the mark. Employers are charged with knowing
about FMLA protected activity as soon as an employee requests leave, even if it turns out the
employee was not entitled to benefits. It is the request that is protected activity. Demyanovich,
747 F.3d at 433 (“By asking . . . for FMLA leave, [the employee] both engaged in protected
activity and made his employer aware of it.”). Even if FCA did not know that Render was using
his intermittent FMLA leave at the time of his absences, the issue is whether it knew about his
protected activity before it terminated him. In this case, even if Mitchell was unaware that
Render asked to use his leave on December 6, she admitted that she knew he was claiming
FMLA protection by December 8, over a month before she terminated him. The district court

-- 18 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 19
therefore erred in concluding that Render’s retaliation claim failed because he could not establish
the first two elements of a prima facie case.
As to the third element, there is no dispute that Render’s termination was an adverse
employment action. The final prima facie element is causation. Redlin, 921 F.3d at 616 (quoting
Donald, 667 F.3d at 761). In their discussion of causation, both parties focus on whether FCA
properly terminated Render under the terms of his Conditional Reinstatement Letter. Although
that issue is relevant when asking whether FCA had a legitimate nondiscriminatory reason for
terminating Render, it is not germane to the prima facie causation element. The causation
element often turns on the temporal proximity between the protected activity and the adverse
employment action. See Judge v. Landscape Forms, Inc., 592 F. App’x 403, 409 (6th Cir. 2014).
Indeed, “the causal connection between the protected activity and the adverse employment action
necessary for a prima facie case of retaliation can be established solely on the basis of close
temporal proximity.” Id. (citing Seeger, 681 F.3d at 283–84). The parties do not discuss
temporal proximity in connection to their causation arguments but the record provides ample
evidence showing that Render can satisfy this requirement. We have “found sufficient evidence
of a causal connection where the time between when . . . the employee requested leave and the
employee’s termination was two to three months.” Id. (citing Clark v. Walgreen Co., 424 F.
App’x 467, 473 (6th Cir. 2011)). Whether we measure this time from the moment Render first
sought intermittent FMLA leave on October 24, 2017, or from the date he first sought to use that
leave on December 6, 2017, both dates fall within three months of his termination on January 11,
2018. Thus, Render has provided sufficient evidence to establish his prima facie case at this
stage.
b. Nondiscriminatory Reason
Because Render has established a prima facie retaliation claim, the burden shifts to FCA
to articulate a legitimate nondiscriminatory reason for the adverse employment action. See
Nathan, 992 F.3d at 573 (quoting Donald, 667 F.3d at 761). FCA argues that it terminated
Render for “excessive, unexcused absences and tardies in violation of his Conditional
Reinstatement Letter.” (Def. Br. at 32–33.) Terminating an employee for unexcused absences

-- 19 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 20
that violated company policy is a sufficient nondiscriminatory reason to meet FCA’s burden.
See Wallace, 782 F. App’x at 403.
c. Pretext
The burden then shifts back to Render to show that FCA’s given reason was pretextual.
See Nathan, 992 F.3d at 573 (quoting Donald, 667 F.3d at 761). “[A] plaintiff may meet his or
her burden to ‘demonstrate pretext by showing that the proffered reason (1) has no basis in fact,
(2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to
warrant the challenged conduct.’” Judge, 592 F. App’x at 410 (quoting Dews v. A.B. Dick Co.,
231 F.3d 1016, 1021 (6th Cir. 2000)).
FCA argues that Render cannot show pretext because FCA investigated Render’s
absences and tardies before it terminated him, and it concluded that Render had not properly
requested FMLA leave for those days. It points to several actions that Mitchell took before she
ultimately terminated Render. First, on December 8, after Mitchell learned that Render thought
his absences were FMLA, Mitchell emailed Sedgwick to ask whether he had approved FMLA
leave. Sedgwick told Mitchell that Render’s claim was “contingently approved with no absences
coded as FMLA,” and noted that his absences and tardies on December 6, 7, and 8 were coded as
“MISU” meaning miscellaneous unexcused. (Sedgwick Case Notes, R. 24-13, Page ID #381;
Mitchell Dep., R. 22-3, Page ID #164.) Mitchell followed up on December 18, and Sedgwick
again advised her that “[t]he claim is still contingently approved with no absences coded as
FMLA.” (Sedgwick Case Notes, R. 24-13, Page ID #378–79.) Second, Mitchell called FCA’s
attendance manager, Shawn Searcy, who looked at the call recordings from the days Render was
absent. FCA says that Searcy told Mitchell that “Render had not requested FMLA leave when
he called the absences in.” (Def. Br. at 33.) But all Searcy told Mitchell was that Render “did
not say FMLA on the call.” (Id.) Third, Mitchell contacted FCA’s FMLA administrator, Anne
Stebbins. Mitchell gave Stebbins a summary of Render’s case, and Stebbins “confirmed that
there was no FMLA approved.” (Mitchell Dep., R. 22-3, Page ID #166.) Finally, Mitchell
consulted with her supervisor before jointly deciding whether termination was the proper action
given Render’s absences and tardies.

-- 20 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 21
In response, Render argues that FCA’s proffered reason—unexcused absences—had no
basis in fact because his absences were incorrectly coded as unexcused. The record indicates
that the operator who answered Render’s call-ins was responsible for initially coding the request.
As discussed above, Render said enough on those calls to allow a jury to find that the operator
erred in marking his absences and tardies as “MISU.” See supra Part A. Sedgwick then used the
information from the operator to determine that Render was not seeking FMLA leave to cover
his absences. When Render called Sedgwick to sort out the error, Sedgwick told him that “he
need[ed] to talk to someone in HR to have [the absences and tardies] recoded as FMLA as
[Sedgwick] only go[es] by what comes over from the plant.” (Sedgwick Case Notes, R. 24-13,
Page ID #375) So, Render went to Mitchell. Mitchell admitted that she had the power to
manually recode the absences as FMLA. But she never did. Viewing the facts in the light most
favorable to Render, Mitchell failed to catch the many errors that were made in the process of
marking Render’s absences as “MISU.” Even though she had the power to fix those errors,
Mitchell did not recode Render’s absences. Instead, she terminated him. A jury could find that
Mitchell’s errors were the only thing giving her a reason to terminate Render, given that his
absences would have otherwise been excused. Indeed, the record shows that Mitchell terminated
Render even though she knew that he was trying to use his FMLA days and that he was already
conditionally approved for intermittent FMLA leave. Still, she refused to recode the absences as
FMLA. A jury could thus find that the proffered reason had no basis in fact.
As a last resort, FCA points to the “honest belief” rule to rebut Render’s pretext
arguments. Where, as here, an employee provides evidence that the proffered reason had no
basis in fact, the employer may still be able to defeat a retaliation claim under the “honest belief”
rule. See Tillman, 545 F. App’x at 349. “‘[A]s long as an employer has an honest belief in its
proffered non-discriminatory reason,’ the employee cannot establish pretext simply because the
reason is ultimately shown to be incorrect.” Id. (quoting Majewski v. Automatic Data
Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001)). At this point, Render has provided
ample evidence indicating that FCA wrongfully designated his absences as unexcused when they
should have been coded as FMLA. And Mitchell admitted that she terminated Render even
knowing that he qualified for FMLA leave and that he was trying to use his approved leave to
cover his absences and tardies in December and January. Render thus raised sufficient facts

-- 21 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 22
showing that FCA’s nondiscriminatory reason was pretextual. Accordingly, the district court
erred in granting FCA’s motion for summary judgment on this claim.
III. CONCLUSION
For these reasons, we REVERSE the district court’s order granting FCA’s motion for
summary judgment and REMAND for further proceedings.

-- 22 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 23
_____________________________
OPINION/CONCURRENCE
_____________________________
KAREN NELSON MOORE, Circuit Judge, concurring. Judge Clay’s thoughtful lead
opinion captures our majority position as to Render’s retaliation claim, but not as to his
interference claim. Judge Suhrheinrich and I write separately to explain our majority position on
Render’s interference claim. Although Judge Suhrheinrich and I agree with the lead opinion that
the district court erred in granting FCA’s motion for summary judgment on Render’s
interference claim, we take a different path to reach that conclusion. In our view, the leave at
issue should be analyzed under the regulation governing employee notice for unforeseeable
leave, 29 C.F.R. § 825.303, not the regulation governing employee notice for foreseeable leave,
29 C.F.R. § 825.302. This opinion details that view and sets forth the majority position with
respect to Render’s interference claim.
I. BACKGROUND
Like many Americans, Render has struggled with mental-health issues. Aware that these
issues might affect his attendance record at work, Render notified his employer, FCA US, LLC
(FCA), of the matter. Render provided FCA with a medical certification attesting that he
suffered from “major recurrent” depression and “moderate/generalized anxiety disorder”; that
symptoms of these conditions could “flare up”; that these flare ups may occur between three-to-
four times a month, though he did not know when; and that he would be unable to work if they
did. R. 22-14 (Med. Certification at 2) (Page ID #190). When these symptoms arose in late
2017 and early 2018, Render called in to take leave under the Family and Medical Leave Act
(FMLA or Act), 29 U.S.C. §§ 2601–54, stating that he was taking leave under the Act, that he
would be absent or tardy because he was having a “flare up,” and that the leave was a
continuation of the leave he had taken in recent days. R. 22-16 (Telephonic Tr. at 2:13–25,
4:10–19, 6:25–7:5) (Page ID #194, 196, 198–99); R. 22-2 (Render Dep. at 88:10–21) (Page ID
#143). We address in this opinion whether Render provided sufficient notice of his intent to take
leave under the FMLA.

-- 23 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 24
II. ANALYSIS
“The FMLA entitles qualifying employees to up to twelve weeks of unpaid leave each
year if, among other things, an employee has a ‘serious health condition that makes the employee
unable to perform the functions of the position of such employee.’” Walton v. Ford Motor Co.,
424 F.3d 481, 485 (6th Cir. 2005) (quoting 29 U.S.C. § 2612(a)(1)(D)). For employees with a
serious health condition, the FMLA provides three options for leave: “(1) one block of leave of
twelve weeks or fewer; (2) intermittent leave, which means ‘leave taken in separate periods of
time due to a single illness or injury . . . and may include leave of periods from an hour or more
to several weeks’; and (3) reduced leave schedule, a plan under which the employer reduces the
employee’s normal work hours, usually to a part-time basis.” Hoffman v. Pro. Med Team, 394
F.3d 414, 418 (6th Cir. 2005) (citing, inter alia, 29 U.S.C. §§ 2612(a)(1), 2611(9)); see also 29
C.F.R. §§ 825.102, 825.202, 825.203. The parties do not dispute that Render has a serious
medical condition and that his leave was intermittent.
If an employer like FCA either interferes with, or retaliates against, an employee like
Render who is taking one of these forms of leave, then that employee may have a valid claim
under the FMLA against the employer. See Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir.
2012) (listing elements for prima facie interference and retaliation claims). That is, there may be
a valid interference or retaliation claim if the employee properly alerted the employer to the need
for leave. See id.; see also Munoz v. Selig Enterprises, Inc., 981 F.3d 1265, 1276–77 (11th Cir.
2020). Gauging the adequacy of the notice that Render provided is at the center of this case.
A. Regulatory Requirements
1. Applicable Law
We begin by considering whether Render complied with the notice provisions of the
pertinent regulations promulgated by the United States Department of Labor, the agency
responsible for administering the FMLA. See 29 U.S.C. § 2654. At the outset, these regulations
create a fork in the road. Before determining what qualifies as adequate notice, employees
seeking to take FMLA leave must determine “whether the need for leave is foreseeable or
unforeseeable.” 29 C.F.R. § 825.301(b) (emphasis added). Section 825.301 does not provide

-- 24 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 25
further guidance on how to determine the foreseeability of “the need for leave.” Instead, it
directs employees and employers (and courts) to consult two other regulations for an answer:
§ 825.302 and § 825.303.
Section 825.302 details the notice requirements that an employee must follow when the
requested FMLA leave is “foreseeable.” What counts as “foreseeable” has been subject to
disagreement because this term, like “unforeseeable,” is not defined in either the FMLA or its
implementing regulations. White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1196 (11th
Cir. 2015). That said, although “[c]ourts usually speak in terms of whether the need for leave
itself was foreseeable,” the FMLA “is a bit more specific” regarding the word’s meaning. Id.
(collecting cases). It premises foreseeability on one of four events: (1) an “expected birth,”
(2) an expected placement for adoption or foster care, (3) a planned medical treatment of the
employee or certain family members, or (4) a planned medical treatment of a covered
servicemember. 29 U.S.C. § 2612(e); see also White, 789 F.3d at 1196. Those scenarios are
reflected in 29 C.F.R. § 825.302(a), which requires that if an employee’s proposed leave arises
from one of those four situations, then the employee must provide thirty days notice unless doing
so “is not practicable.”
In any event, the notice requirements for foreseeable leave aim to provide clarity about
when the leave will be taken in several ways. The notice must detail “the anticipated timing and
duration of the leave.” 29 C.F.R. § 825.302(c). “Whether FMLA leave is to be continuous or is
to be taken intermittently or on a reduced schedule basis, notice need only be given one time, but
the employee shall advise the employer as soon as practicable if dates of scheduled leave change
or are extended, or were initially unknown.” Id. § 825.302(a). Finally, in the cases of
intermittent leave or a reduced leave schedule, the employer and employee must try “to work out
a schedule for such leave that meets the employee’s needs without unduly disrupting the
employer’s operations, subject to the approval of the health care provider.” Id. § 825.302(f).
“When the approximate timing of the need for leave is not foreseeable,” on the other
hand, an employee must turn to the next section in the regulations. Id. § 825.303(a) (emphasis
added). Unlike its nearby counterpart, 29 C.F.R. § 825.303 does not provide an exhaustive list of
conditions that trigger its notice provisions. Instead, the sole example to be found here is that of

-- 25 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 26
an employee whose child is afflicted with asthma and has a severe attack, causing the employee
to miss work to take the child to the emergency room. Id. This example is instructive: whereas
§ 825.302 (foreseeable leave) emphasizes the ability to schedule the leave and limits its
requirements to scenarios in which that is possible, § 825.303 (unforeseeable leave) stresses the
opposite—that the “approximate timing” for the leave was unknowable in advance. Id.
Sections 825.302 and 825.303 of the regulations thus create two poles of predictability.
To illustrate how these work in practice, consider two hypothetical employees. Both employees
need to request FMLA leave. The first employee must take time off every Monday, Wednesday,
and Friday to receive dialysis. The second employee, too, must periodically take time off. But
this employee must do so because they suffer from chronic migraines. The timing of these
episodes is difficult to predict, though they unfortunately can occur a couple of times a month.
What determines where each employee falls on the foreseeability spectrum? The
intermittent nature of leave does not dictate its predictability. Such leave could fall on either
end. Compare Acker v. General Motors, L.L.C., 853 F.3d 784, 786, 789 (5th Cir. 2017)
(employee who was approved for intermittent leave because of acute iron-deficiency anemia had
to comply with § 825.303), and Norton v. LTCH, 620 F. App’x 408, 409, 410–11 (6th Cir. 2015)
(employee who was approved for intermittent leave because of vestibular migraines had to
comply with § 825.303), and Millea v. Metro-N. R.R. Co., 658 F.3d 154, 159, 161–62 (2d Cir.
2011) (employee who was approved for intermittent leave based on suffering from “severe post-
traumatic stress disorder” that resulted in “unpredictable panic attacks and exhaustion” had to
comply with § 825.303), with 29 C.F.R. § 825.302 (discussing intermittent leave when
foreseeable due to an enumerated scenario).
Nor does the fact that a medical condition was known before the need for leave arose
necessarily answer the question. As some of the cases cited above show, an employee can
inform their employer of a medical condition and still need to follow § 825.303’s requirements
for unforeseeable leave when symptoms of that condition arise. See Acker, 853 F.3d at 786, 789;
Norton, 620 F. App’x at 409, 410–11; Millea, 658 F.3d at 159, 161–62; see also White, 789 F.3d
at 1196–97.

-- 26 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 27
Rather, the key factor for determining foreseeability is whether the timing of the leave
was anticipated. That is why in both 29 U.S.C. § 2612(e) and 29 C.F.R. § 825.302 the focus is
on events that would lead to planned absences like a scheduled surgery, and why in 29 C.F.R.
§ 825.303 the focus is on events that are difficult to plan like an asthma attack. This is also why
other provisions of the regulations identify the ability to pinpoint—or at least approximate—a
date as the touchstone of foreseeability. For example, in discussing the consequences of
inadequate notice, one section of the regulations notes how “knowledge that an employee would
receive a telephone call about the availability of a child for adoption at some unknown point in
the future would not be sufficient to establish the leave was clearly foreseeable 30 days in
advance.” 29 C.F.R. § 825.304(b). In short, the difference between foreseeable and
unforeseeable leave is the difference between knowing and not knowing when leave will be
needed before the time comes to request it.
This principle resolves our hypotheticals. On the one hand, the dialysis patient’s request
for leave is a paradigmatic instance of foreseeable intermittent leave. The times when this
employee will be absent are known in advance and the employee and employer could establish a
schedule. On the other hand, the chronic-migraine sufferer’s request for leave is an example of
unforeseeable intermittent leave. The employee’s potential need for leave was anticipated, but
the timing of this leave was unknown because the flare ups of symptoms do not adhere to a
schedule.
That principle also resolves the present issue. Employees with known health conditions
that result in “a sudden, acute flareup” of symptoms must follow 29 C.F.R. § 825.303, not 29
C.F.R. § 825.302, when requesting leave. Munoz, 981 F.3d at 1276. Render was one such
employee. Like the employee with chronic migraines, Render’s mental-health issues meant that
he was likely to miss at least several days of work a month. R. 22-14 (Med. Certification at 2)
(Page ID #190). When these absences would occur, however, was unpredictable. That makes
the leave unforeseeable and makes § 825.303 the applicable notice regulation.

-- 27 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 28
2. Contents of the Notice
That leaves the issue of whether Render provided FCA with adequate notice under
§ 825.303. Here, a reasonable jury could find that Render gave sufficient notice of his need to
take FMLA leave on December 6, 7, and 8, 2017, and on January 5, 2018. See Kirilenko-Ison v.
Bd. of Educ. of Danville Indep. Schools, 974 F.3d 652, 660 (6th Cir. 2020).
Revised by the Department of Labor in 2009, this section of the regulations requires that
an employee provide different levels of notice depending on the employee’s history of taking
FMLA leave with the employer. Section 825.303(b) explains that:
When an employee seeks leave for the first time for a FMLA-qualifying reason,
the employee need not expressly assert rights under the FMLA or even mention
the FMLA. When an employee seeks leave due to a qualifying reason, for which
the employer has previously provided the employee FMLA-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). Either way, an employee “[c]alling in ‘sick’ without providing more
information will not be considered sufficient notice to trigger an employer’s obligations under
the Act,” though an “employer will be expected to obtain any additional required information
through informal means.” Id. Once before a court, the adequacy of an employee’s notice is “an
intensely factual determination.” Donald, 667 F.3d at 761.
With less context, some of Render’s four call-ins could be viewed as providing
insufficient notice. Although Render referenced the FMLA during his December 7, 2017 call-
in,1 he did not do so during his call-ins on December 6, 2017 and January 5, 2018, opting instead
to say that he was suffering from “flare ups.” R. 22-2 (Render Dep. at 88:10–21) (Page ID
#143); R. 22-16 (Telephonic Tr. at 2:13–25, 6:25–7:5) (Page ID #194, 198–99). As the district
court noted, a “flare up” just means “a sudden appearance or worsening of the symptoms of a
disease or condition.” Render v. FCA US LLC, No. 19-12984, 2021 WL 3085401, at *7 (E.D.
Mich. July 20, 2021) (quoting Webster’s Third International Dictionary, Unabridged (2020)).
The term does not by itself indicate what these symptoms or the underlying disease or condition
1Sedgwick’s records could at this stage be reasonably read as indicating that Render called in on December
7, 2017 despite there being no transcript of the call. See R. 24-13 (Sedgwick Case Note at 9) (Page ID #382).

-- 28 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 29
are. Standing alone, an employee reporting that they were having a “flare up” could be the
equivalent of calling in “sick,” which 29 C.F.R. § 825.303(b) explicitly provides “will not be
considered sufficient notice to trigger an employer’s obligations under the Act.” The same is
true of Render’s call from December 8, 2017, during which he merely reported having been
“sick the last few days,” referencing his calls from December 6 and 7. R. 22-16 (Telephonic Tr.
4:10–19) (Page ID #196).
But there is more to this story. Nothing in 29 C.F.R. § 825.303(b) commands that we
overlook pertinent background. On the contrary, other circuits have indicated that courts should
consider the employer’s knowledge when assessing the adequacy of notice for unforeseeable
leave, even under the revised regulations. See Munoz, 981 F.3d at 1270, 1276–77 (holding
emails referencing symptoms coupled with employer’s knowledge of underlying health
conditions constitute sufficient notice under § 825.303(b)); Germanowski v. Harris, 854 F.3d 68,
73–74 (1st Cir. 2017) (placing email that called in “sick” in broader context to conclude that the
message arguably provided adequate notice under § 825.303(b)); cf. Evans v. Coop. Response
Ctr., Inc., 996 F.3d 539, 545, 549 (8th Cir. 2021) (holding that employee failed to provide
adequate notice under § 825.303(b) when she did not mention symptoms listed in her FMLA
certification forms). Given that employers are under a duty to inquire further about the nature of
the leave requested, a previously submitted medical certification listing symptoms is relevant to
evaluating what can be reasonably gleaned from an employee’s call-in. See 29 C.F.R.
§§ 825.301(a), 825.303(b).
Before making any of his calls, Render provided FCA with such a certificate. See R. 22-
14 (Med. Certification) (Page ID #189–90). This document informed the company that Render
would be unable to work when the symptoms of his depression and anxiety were acute. Id. at 2
(Page ID #190). More importantly, the certificate alerted FCA that Render would be unable to
work when these symptoms “flare[d] up.” Id. It also noted that these flare ups could occur
three-to-four times a month. Id.
Therefore, when Render called in on three consecutive days in December 2017
specifically referencing either his symptoms flaring up, or the FMLA, or, by the last day, his
previous two days out and his subsequent need to be late to work, it would be reasonable to

-- 29 of 30 --

No. 21-2851 Render v. FCA US, LLC Page 30
conclude that he put FCA on notice that he was referring to his FMLA-qualifying condition.
R. 22-16 (Telephonic Tr. at 2:13–25, 4:9–19) (Page ID #194, 196); R. 22-2 (Render Dep. at
88:10–21) (Page ID #143). The same is true for the January 5, 2018 call, during which Render
also identified a flare up of his symptoms as the reason for his tardiness. R. 22-16 (Telephonic
Tr. at 7:4–5) (Page ID #199). At the very least, FCA knew that Render had been requesting
FMLA leave during the December call-ins by the day of the last leave request because he
reinformed the company that he had been doing so. See, e.g., R. 24-13 (Sedgwick Case Note at
9) (Page ID #382); R. 22-3 (Mitchell Dep. at 39:1–5) (Page ID #163). On this record, we hold
that a reasonable jury could conclude that Render provided adequate notice of his need for
unforeseeable FMLA leave each time that he called in.
B. FCA Policy Requirements
We conclude by addressing whether Render has come forward with sufficient evidence of
his compliance with FCA’s internal leave policies. As above, we hold that the regulation
governing unforeseeable leave provides the applicable law. See 29 C.F.R. § 825.303. Although
the lead opinion addresses the issue under the regulation applicable to foreseeable leave, both
paths lead to the same result. Whether the leave is foreseeable or unforeseeable, an employee
must comply (absent unusual circumstances) with his or her employer’s “usual and customary”
leave policies. See 29 C.F.R. §§ 825.302(d), 825.303(c). For the reasons stated in the lead
opinion, a reasonable jury could find that Render provided sufficient notice of his intent to take
FMLA leave under FCA’s internal leave policies. Accordingly, Render established a prima facie
claim of interference under the FMLA, and the district court erred in granting FCA’s motion for
summary judgment.
III. CONCLUSION
We hold that Render was required to comply with the requirements for unforeseeable
leave under 29 C.F.R. § 825.303. Under the circumstances, a reasonable jury could find that
Render provided sufficient notice under § 825.303 to trigger FCA’s obligations under the
FMLA. We therefore reverse the district court’s judgment and remand for further proceedings
based on these grounds and those otherwise provided in the lead opinion.

-- 30 of 30 --