United States Court of Appeals
` For the Eighth Circuit
`___________________________
`
`No. 19-2483
`___________________________
`
`Tori Evans
`
`lllllllllllllllllllllPlaintiff - Appellant
`
`v.
`
`Cooperative Response Center, Inc.
`
`lllllllllllllllllllllDefendant - Appellee
` ____________
`
`Appeal from United States District Court
`for the District of Minnesota
` ____________
`
`Submitted: October 22, 2020
`Filed: May 4, 2021
`____________
`
`Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
`____________
`
`LOKEN, Circuit Judge.
`
`Cooperative Response Center (CRC) services electric utilities and monitors
`security and medical alarms throughout the country. CRC hired Tori Evans in 2004.
`She became the sole office assistant at CRC’s Austin, Minnesota office in 2012.
`CRC terminated Evans in March 2017 for violating its “no-fault” attendance policy.
`In February 2018, Evans commenced this action, alleging her termination violated her
`rights under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq.,
`
`

`

`and the Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq., because she
`suffers from reactive arthritis, a chronic autoimmune disease. After discovery, the
`district court1 granted CRC summary judgment, dismissing all claims. Evans appeals,
`arguing there are triable issues of fact as to whether CRC violated the ADA by
`discriminating and retaliating against her because she is disabled and by failing to
`accommodate her disability, and violated the FMLA by denying leave to which she
`was entitled and by discriminating against her for exercising FMLA rights.
`Reviewing the award of summary judgment de novo and the facts in the light most
`favorable to Evans, we affirm. See Dalton v. ManorCare of West Des Moines IA,
`LLC, 782 F.3d 955, 957 (8th Cir. 2015) (standard of review).
`
`I. ADA Claims.
`
`CRC’s employee conduct policy stresses the importance of regular attendance,
`deeming it an “essential job function for all CRC employees.” Repeated absences,
`failing to notify a supervisor of an absence, and unauthorized absences without
`approved leave are grounds for termination. CRC’s attendance policy provides that
`unexcused absences that are not FMLA-eligible or otherwise part of an approved
`leave of absence generate “points” that progressively lead to verbal warnings, then
`written warnings, then termination if an employee receives ten points in a rolling
`twelve month period.
`
`In December 2015, Evans began suffering from diarrhea, mouth sores, and
`severe anemia. She consulted her physician, Dr. Gregory Angstman. After these
`symptoms caused Evans’s hospitalization in April 2016, Dr. Angstman certified to
`CRC she was suffering from a serious health condition. In June, Dr. Angstman
`diagnosed Evans with reactive arthritis, an autoimmune disease whose symptoms
`
`1The Honorable Ann D. Montgomery, United States District Judge for the
`District of Minnesota.
`
`-2-
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`

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`include gastrointestinal illness, oral lesions, and joint pains. Dr. Angstman advised
`CRC that Evans would likely need a half day off once or twice per month to attend
`medical appointments and a full day off once or twice per month to deal with
`recurring arthritic flare-ups. A CRC human resources employee (Jennifer Groebner)
`informed Evans the company had approved up to two full days and two half days of
`intermittent FMLA leave per month but noted that “absences above and beyond the
`FMLA approved frequency” would be eligible for points.
`
`In the succeeding months, Evans took intermittent FMLA leave on numerous
`occasions, but there were eleven days she received a point after being denied FMLA
`leave, point-bearing absences that led to her termination in March 2017. In a
`December annual performance review, Evans’s supervisor Kerry Wylie noted that
`Evans needed to improve her attendance, a “key” part of her role, because her
`frequent absences burdened co-workers and caused a delay in functions that could not
`await her return. When Evans was absent, Wylie and accounting department staff
`performed duties that could be covered in her absence. Wylie testified that she could
`generally manage covering for Evans but the absences burdened co-workers.
`
`After the performance review, Evans did not incur another unexcused absence
`until March 2017, taking approved FMLA leave on four occasions. On March 22,
`Evans texted Wylie that she would be absent the next two days because she had no
`voice and was developing a slight fever. CRC assessed a point because lost voice
`was not among her listed FMLA symptoms.2 Evans returned to work on March 24
`but left after emailing Wylie that her fever had returned. She informed Wylie’s
`supervisor, Brad Fjelsta, and human resources staff that she was leaving but did not
`say she was seeking FMLA leave or suffering from a reactive arthritis flare-up. CRC
`assessed a half point for this absence, putting Evans at ten within the twelve-month
`
`2CRC drafted a final written warning that went undelivered because Wylie was
`out of the office until March 27.
`
`-3-
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`

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`period. On Monday, March 27, Wylie and Groebner advised Evans CRC was
`terminating her employment for excessive absences in violation of the company’s
`attendance, employee conduct, and work rules policies.
`
`A. ADA Discrimination. Evans first asserts that her termination violated the
`ADA’s prohibition against discharging an employee on account of her disability. See
`42 U.S.C. § 12112(a). To prove a claim of disability discrimination, an employee
`may rely on either direct or indirect evidence. Lipp v. Cargill Meat Sols. Corp., 911
`F.3d 537, 543 (8th Cir. 2018). Evans stakes her ADA claims on the latter, arguing
`she presented sufficient evidence of discrimination under the familiar burden-shifting
`framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) -- a plaintiff
`establishes a prima facie case by demonstrating: “(1) that [she] was disabled within
`the meaning of the ADA; (2) that [she] was qualified to perform the essential
`functions of the job with or without a reasonable accommodation; and (3) a causal
`connection between an adverse employment action and the disability.” Lipp, 911
`F.3d at 544 (cleaned up). If she makes that showing, “the burden of production then
`shifts to the employer to show a legitimate, nondiscriminatory reason for the adverse
`action. The burden then returns to the plaintiff to show that the employer’s proffered
`reason was a pretext for discrimination.” Id. (quotation omitted).
`
`Many of Evans’s duties as the sole office assistant required her physical
`presence at the office. These responsibilities included answering phones, welcoming
`visitors, coordinating travel itineraries, and helping the accounting department with
`check deposits and monthly billing. The district court concluded that Evans was
`“unable to perform the essential functions of her position” -- the second element of
`the prima facie case -- “[b]ecause [she] could not come to work on a regular and
`reliable basis.” Alternatively, the district court held that Evans could not show that
`“CRC’s legitimate, nondiscriminatory reasons for firing her” were pretextual. We
`need only consider the first ground to affirm. See Alexander v. Northland Inn, 321
`F.3d 723, 726 (8th Cir. 2003).
`
`-4-
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`

`We have “consistently stated that regular and reliable attendance is a necessary
`element of most jobs.” Lipp, 911 F.3d at 544 (quotation omitted). “[A]n employee
`who is unable to come to work on a regular basis is unable to satisfy any of the
`functions of the job in question, much less the essential ones.” Spangler v. Fed.
`Home Loan Bank of Des Moines, 278 F.3d 847, 850 (8th Cir. 2002) (cleaned up).
`We must consider an employer’s judgment that regular and reliable attendance is an
`essential function of an employee’s job, looking to relevant evidence such as written
`job descriptions and policies regarding attendance and workplace conduct. See Lipp,
`911 F.3d at 544, quoting 42 U.S.C. § 12111(8) and 29 C.F.R. § 1630.2(n)(3).
`
`In Lipp, we affirmed the grant of summary judgment dismissing the plaintiff’s
`ADA disability claims because of strong evidence she could not perform her job due
`to persistent absences. See id. at 545. Here, CRC’s “no-fault” attendance policy
`stated that: “Regular attendance/punctuality for scheduled work hours is an essential
`job function for all CRC employees.” (Emphasis added). CRC’s job description for
`the office assistant position, filled only by Evans at the Austin location, listed tasks
`such as answering phones and greeting visitors that she could only perform when
`physically at the office. See id. Dating back to 2014, CRC warned Evans several
`times that her unexcused absences were “unacceptable,” impaired CRC’s service to
`its customers, and, as supervisor Wylie testified, placed an “additional burden . . . on
`fellow employees.” See Higgins v. Union Pac. R.R., 931 F.3d 664, 670 (8th Cir.
`2019). Evans admitted that her absences burdened co-workers by detracting from the
`time they could spend on their own duties. Her attendance was an essential function
`of the office assistant job. CRC was not obligated to “reassign existing workers to
`assist [Evans] in [her] essential duties.” Dropinski v. Douglas Cnty., 298 F.3d 704,
`710 (8th Cir. 2002); accord Alexander, 321 F.3d at 728.
`
`Evans contends that CRC did not follow its policies because it failed to give
`a final written warning in March 2017 and inconsistently assessed unexcused absence
`points. The failure to provide a final written warning was excusable, given supervisor
`
`-5-
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`Wylie’s absence from the office. Moreover, Evans received numerous attendance
`warnings in the prior months and instructions to improve her attendance in her
`December performance review. After CRC assessed one point on October 17, 2016,
`putting Evans at nine points, it issued a final written warning on November 1
`explaining that excessive absences impacted the service CRC provided its customers,
`placed an unacceptable burden on co-workers, and further unexcused absences could
`result in termination. CRC assessed another half point on November 9 when Evans
`sought to use a full day of FMLA leave after taking two full days within the previous
`thirty days. Now at 9.5 points, she received a final written warning.
`
`Evans does not argue that CRC miscalculated when it determined she was at
`ten points after her March 24 absence. Her termination was consistent with CRC’s
`attendance policy and with the employee conduct policy warning that repeated
`absences are grounds for termination.
`
`Evans further contends the district court erred by “removing” intermittent
`FMLA leave as a reasonable accommodation. We disagree. “[I]ntermittent FMLA
`leave does not excuse an employee from the essential functions of the job,” such as
`the need for regular and reliable attendance. Hatchett v. Philander Smith Coll., 251
`F.3d 670, 675 n.4 (8th Cir. 2001).
`
`For these reasons, we conclude the district court did not err in dismissing
`Evans’s ADA discrimination claim. Undisputed evidence established that she was
`“unable to perform the essential functions of her position.”
`
`B. Failure-to-Accommodate. The ADA requires an employer to reasonably
`accommodate an employee’s disability unless doing so “would impose an undue
`hardship.” 42 U.S.C. § 12112(b)(5)(A). Depending on an employee’s assigned
`duties and the employer’s need for in-person attendance, reasonable accommodations
`may include “part-time or modified work schedules.” 42 U.S.C. § 12111(9)(B).
`
`-6-
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`

`

`Evans argues that CRC denied her a reasonable accommodation for her
`“unforeseeable flare-ups” by not permitting her to take FMLA leave beyond two full
`and two half days per month. “To prevail on [her] failure-to-accommodate claim
`under the ADA, [Evans] must establish both a prima facie case of discrimination
`based on disability and a failure to accommodate it.” Moses v. Dassault Falcon Jet-
`Wilmington Corp., 894 F.3d 911, 923 (8th Cir. 2018) (quotation omitted).
`
`Because Evans cannot establish a prima facie case of discrimination, we agree
`with the district court that her failure-to-accommodate claim necessarily fails. If an
`accommodation would leave the employee unable to perform an essential job function
`-- here, regular attendance -- her accommodation claim fails. See, e.g., Faulkner v.
`Douglas Cnty., 906 F.3d 728, 734 (8th Cir. 2018). Evans cannot establish that more
`FMLA leave or a part-time schedule would have been a reasonable accommodation
`because her daily job duties required her regular and reliable physical presence at the
`office. See Hatchett, 251 F.3d at 675.
`
`Evans contends the district court erred in awarding summary judgment to CRC
`because a reasonable jury could conclude that CRC failed to engage in an interactive
`process to accommodate a known disability, her need for more frequent FMLA leave.
`See Sharbono v. N. States Power Co., 902 F.3d 891, 894 (8th Cir. 2018). But it was
`Evans’s responsibility to formally request an accommodation. See Kelleher v. Wal-
`Mart Stores, Inc., 817 F.3d 624, 632 n.6 (8th Cir. 2016) (citation omitted). Evans
`argues she requested the allowance of additional FMLA leave beyond the days Dr.
`Angstman certified, but no evidence supports this assertion.
`
`Nothing in the record shows that Evans affirmatively told CRC she needed
`additional leave. Evans did not need to use the magic word “accommodation” to
`request additional FMLA leave. See Garrison v. Dolgencorp, LLC, 939 F.3d 937,
`941 (8th Cir. 2019). But she was required to “alert [CRC] to the need for an
`accommodation” -- here, that two full and two half days of FMLA leave every thirty
`
`-7-
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`days was insufficient. Kelleher, 817 F.3d at 632 n.6 (quotation omitted). “[Evans]
`cannot expect [CRC] to read her mind and know she secretly wanted [additional
`FMLA leave] and then sue [CRC] for not providing it.” Mole v. Buckhorn Rubber
`Prods., Inc., 165 F.3d 1212, 1218 (8th Cir.), cert. denied, 528 U.S. 821 (1999)
`(cleaned up). Moreover, the multiple FMLA certification forms exchanged between
`CRC and Dr. Angstman demonstrate that CRC “engage[d] in a ‘flexible’ and
`‘informal[] interactive process” with her.” Garrison, 939 F.3d at 941. CRC sought
`recertification from Dr. Angstman in September 2016, after Evan’s attendance issues
`had arisen. Dr. Angstman responded, “Refer to prior FMLA form.”
`
`C. Retaliation. Evans asserts as an ADA retaliation claim that CRC improperly
`assessed her points after she requested FMLA leave in excess of her monthly
`certification. As stated, this is an FMLA retaliation claim, one of three distinct
`FMLA claims we have identified. See Pulczinski v. Trinity Structural Towers, Inc.,
`691 F.3d 996, 1006 (8th Cir. 2012). We reject Evans’s implicit assertion that
`unlawful FMLA retaliation is necessarily unlawful ADA retaliation. “The rights
`Congress created under the FMLA are fundamentally different than those granted
`under the ADA.” Spangler, 278 F.3d at 851. To prove unlawful ADA retaliation,
`Evans must establish: “(1) [she] engaged in statutorily protected activity; (2) [she]
`suffered an adverse employment action; and (3) a causal connection between the
`two.” Moses, 894 F.3d at 924 (quotation omitted). An ADA retaliation claim
`“requires a but-for causal connection between the employee’s assertion of her ADA
`rights and an adverse action by the employer.” Id. (emphasis added) (quotation
`omitted).
`
`Here, Evans failed to present sufficient evidence of the required but-for causal
`connection. She points only to the temporal proximity between her last approved
`FMLA request on March 14 and her termination on March 27 as evidence of a causal
`connection. However, Groebner testified that she explained to Evans on March 27
`that CRC was terminating her for attendance issues, including unexcused absences
`
`-8-
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`occurring after March 14, and provided Evans a discharge letter memorializing that
`rationale. Evans cannot survive summary judgment by relying solely on temporal
`proximity when CRC provided a “virtually contemporaneous” legitimate reason for
`terminating her. See Hill v. Walker, 737 F.3d 1209, 1219 (8th Cir. 2013) (citation
`omitted). Prior to March 2017, CRC accommodated Evans’s reactive arthritis
`disability for nearly one year. The district court properly granted summary judgment
`dismissing the retaliation claim.
`
`II. FMLA Claims.
`
`The FMLA entitles eligible employees to twelve weeks of unpaid leave during
`a twelve-month period for serious medical conditions, and makes it unlawful for
`employers to “interfere with, restrain, or deny” employees exercising or attempting
`to exercise their rights to FMLA leave. Dalton, 782 F.3d at 959-60, citing 29 U.S.C.
`§§ 2612(a)(1)(D), 2615(a)(1). Evans alleges that CRC interfered with her FMLA
`leave benefits by assessing unexcused absence points when she was entitled to take
`FMLA leave. See 29 C.F.R. § 825.220(b). We refer to this type of § 2615(a)(1)
`claim as an “entitlement” claim. Pulczinski, 691 F.3d at 1005; see Bosley v. Cargill
`Meat Sols. Corp., 705 F.3d 777, 780 (8th Cir. 2013). Evans also alleges that CRC
`discriminated and retaliated against her for seeking and taking FMLA benefits, for
`which she was wrongly discharged. We refer to this type of § 2615(a)(1) claim as a
`“discrimination” claim. See Pulczinski, 691 F.3d at 1007; 29 C.F.R. § 825.220(c).
`
`A. Entitlement. To succeed on her FMLA entitlement claim, Evans must
`prove: (1) “she was eligible for FMLA leave”; (2) “that [CRC] was on notice of her
`need for FMLA leave”; and (3) “the company denied her benefits to which she was
`entitled to under the FMLA.” Hasenwinkel v. Mosaic, 809 F.3d 427, 432 (8th Cir.
`2015) (citations omitted). The district court granted summary judgment dismissing
`this claim, concluding that CRC did not deny Evans FMLA leave to which she was
`entitled because it was justified in assessing unexcused absence points when she
`
`-9-
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`either (i) failed to give required FMLA notification, (ii) sought FMLA leave beyond
`what Dr. Angstman certified, or (iii) sought FMLA leave for medical conditions
`unrelated to her reactive arthritis. Evans’s appeal of these issues requires a review
`of the disputed unexcused absence points.
`
`1. Lack of Notice. The district court concluded that CRC properly denied
`FMLA leave on October 17, 2016, and March 22 and 24, 2017, because Evans failed
`to give CRC sufficient notice of her intention to take leave. FMLA regulations
`provide that an employee who fails to “comply with the employer’s usual and
`customary notice and procedural requirements for requesting leave, absent unusual
`circumstances,” may have her “FMLA-protected leave . . . denied.” 29 C.F.R.
`§ 825.303(c). After approving intermittent leave based upon Dr. Angstman’s medical
`certification, CRC informed Evans that she must follow its call-in procedure to have
`an absence counted as FMLA leave. The two-step procedure required Evans to notify
`her supervisor that she would be absent from work and notify human resources that
`she was designating the absence as FMLA leave. CRC assessed the employee an
`unexcused absence point if she did not comply before being absent from work.
`
`CRC denied leave and assessed Evans a point on October 17, 2016 because she
`did not call human resources. She was assessed points on March 22 and 24, 2017,
`putting her above the ten-point termination threshold, because she did not notify CRC
`she was seeking FMLA leave on those days.3 She was also assessed a point on
`August 26 because she failed to call her supervisor and a half point on September 27
`in part because she failed to call human resources. Evans argues that she gave CRC
`adequate notice of her request for FMLA leave on each occasion and that CRC’s two-
`step call-in procedure requiring an employee to inform both her supervisor and
`human resources before taking leave is stricter than the FMLA permits. The latter
`
`3Consistent with its policy, CRC did not assess Evans a point on March 23
`because she received a point on March 22.
`
`-10-
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`argument is without merit. Citing § 825.303(c), we recently upheld a two-step notice
`requirement, concluding that an employee who failed to request FMLA leave from
`her manager and a third-party leave administrator “lost any right that she had to
`FMLA leave.” Garrison, 939 F.3d at 944. Evans was admittedly aware of this policy.
`
`Regarding the points assessed on March 22 and 24, 2017, we agree with the
`district court that there is no record evidence Evans ever “mention[ed] that her illness
`was related to her FMLA leave or to her reactive arthritis.” The only notice she
`provided CRC were text messages and an email to Wylie indicating she lost her
`voice, had a slight fever, and had bodyaches, which were not listed as symptoms of
`reactive arthritis in her FMLA certification forms. While Evans told co-workers on
`March 24 that she was leaving because she was tired, and anemia was a listed
`symptom, Evans admitted she did not request FMLA leave that day. The FMLA
`regulations provide that an employee seeking leave for a qualifying reason
`
`must specifically reference either the qualifying reason for leave or the
`need for FMLA leave. Calling in “sick” without providing more
`information will not be considered sufficient notice to trigger an
`employer’s obligations under the Act.
`
`29 C.F.R. § 825.303(b) (emphasis added). CRC was not required to guess whether
`Evans needed FMLA leave when she called in; she was required to affirmatively
`invoke the FMLA.
`
`2. Leave Beyond What Dr. Angstman Certified. Evans argues that CRC
`unlawfully denied FMLA leave for six absences from August to December 2016
`because they exceeded her monthly allotment of intermittent FMLA leave based on
`Dr. Angstman’s medical certifications. The FMLA provides that an employer may
`“require that a request for leave . . . be supported by a certification issued by the
`health care provider of the eligible employee.” 29 U.S.C. § 2613(a).
`
`-11-
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`On July 20, Groebner notified Evans that CRC had approved up to two full
`days and two half days of intermittent FMLA leave per month, based on Dr.
`Angstman’s certification. Groebner reiterated that Evans would need to contact her
`supervisor and human resources, as outlined in CRC’s FMLA leave policy, when she
`needed to take FMLA leave. Groebner also noted that Evans’s FMLA certification
`covered “autoimmune/reactive arthritis, GI illness, oral lesions, and joint pains,”
`mirroring the symptoms that Dr. Angstman identified in his July 8 certification. On
`August 11, CRC approved an FMLA leave request because Evans was suffering from
`a stomach ailment. However, it partially denied Evans’s request the following day
`because she had already used two full days of FMLA leave within the previous thirty
`days, as Dr. Angstman had certified. CRC allowed Evans to use one of her half days
`of FMLA leave on August 12 and assessed a half point for the remainder. On August
`25, Evans requested a full day of FMLA leave. CRC allowed her to use the
`remaining half day and assessed her a half point because she had exhausted her
`monthly allotment.
`
`Evans consistently requested FMLA leave beyond the days certified by Dr.
`Angstman yet never attempted to increase the amount of intermittent FMLA CRC had
`approved. Evans argues CRC was obligated to seek recertification from Dr.
`Angstman after it became apparent she needed more leave. The record belies this
`contention. After assessing Evans points on several days due to exhausting her
`monthly leave allowance, CRC faxed Dr. Angstman a new FMLA form on September
`15, asking him to recertify the frequency and duration of Evans’s condition so it
`could determine whether she needed additional leave. Dr. Angstman returned the
`form on October 5, directing CRC to “Refer to prior FMLA form” for the times Evans
`would need to be absent due to flare-ups. The prior form certified up to two full days
`and two half days off per month -- the amount of FMLA leave CRC approved. This
`recertification addressed leave Evans needed between September 9 and 16, but it
`presented Dr. Angstman the opportunity to adjust his estimate prospectively. He did
`not do so. Evans argues CRC should have sought another recertification when it
`
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`continued to deny leave requests after receiving Dr. Angstman’s September estimate.
`We disagree. Although 29 C.F.R. § 825.308 permits employers to seek
`recertifications, the regulation uses the word “may,” making clear that supplemental
`requests are discretionary, not required.
`
`3. Leave for Conditions Unrelated to Reactive Arthritis. Evans missed work
`the entire week of July 11-15, 2016 due to her knee “giving out.” During a July 11
`appointment, Dr. Angstman observed lingering mouth sores and anemia but no other
`symptoms of reactive arthritis including joint pain. He noted no issue with her knee.
`The next day, Dr. Angstman faxed CRC a letter excusing Evans from work for July
`12-16. Evans called each day seeking to use FMLA leave. CRC denied the requests,
`deeming her knee issue unrelated to the symptoms for which she was FMLA-
`certified. CRC assessed one point on July 11 and July 14, consistent with its policy
`of assessing a point for every three days of unexcused absence. “Where absences are
`not attributable to a serious health condition . . . FMLA is not implicated and does
`not protect an employee against disciplinary action based upon such absences.”
`Dalton, 782 F.3d at 962 (citations and quotations omitted).
`
`Evans argues a reasonable jury could find that she was entitled to FMLA leave
`that week because her knee “giving out” was related to her reactive arthritis. We
`agree with the district court she did not produce sufficient evidence supporting that
`claim. When Evans visited Dr. Angstman on July 11 complaining of lingering mouth
`sores, his notes reflect that Evans did not claim she was suffering from joint problems
`and did not mention any issue with her knee. Dr. Barnes, Evans’s orthopedic
`specialist, examined her on July 28 and opined that her knee injury was not related
`to reactive arthritis. (CRC gave Evans the “benefit of the doubt” and allowed her to
`use FMLA leave on July 28 because her knee caused her to miss work again.)
`
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`Concluding that CRC did not unlawfully deny Evans FMLA leave for any of
`the point-bearing absences she challenges, we affirm the grant of summary judgment
`dismissing her entitlement claim.
`
`B. Discrimination. Evans argues the district court erred in dismissing her
`FMLA discrimination claim because a reasonable jury could find that CRC’s decision
`to terminate was motivated by her exercise of FMLA rights. See Pulczinski, 691 F.3d
`at 1007. Evans can prevail on this claim either with direct evidence of CRC’s
`discriminatory animus or with indirect evidence using the McDonnell Douglas
`paradigm. See Brown v. City of Jacksonville, 711 F.3d 883, 891 (8th Cir. 2013).
`
`Evans argues that CRC’s assessment of points for absences covered by her
`FMLA leave is sufficient direct evidence of discrimination. Like the district court,
`we disagree. Direct evidence is evidence “sufficient to support a finding by a
`reasonable fact finder that an illegitimate criterion actually motivated the adverse
`employment action.” Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir.
`2004). Assessing unexcused absence points consistent with CRC’s Attendance and
`FMLA Leave policies is not, without more, sufficient to support a finding that
`discriminatory animus motivated Evans’s termination. Thus, avoiding summary
`judgment on this discrimination claim turns on whether Evans presented sufficient
`indirect evidence of a prima facie case of FMLA discrimination and that CRC’s
`legitimate reason for firing her -- excessive unexcused absences -- was pretexual. To
`establish a prima facie case, Evans must show that she engaged in FMLA-protected
`activity, suffered a materially adverse action, and a causal connection between the
`protected activity and the adverse action. See Pulczinski, 691 F.3d at 1007.
`
`The district court concluded that Evans failed to show a causal connection
`between her requests for FMLA leave and her termination because too much time --
`eight months -- elapsed between Evans’s first FMLA request and her termination.
`Evans argues she has sufficient evidence of temporal proximity because the relevant
`
`-14-
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`time period is the thirteen days between her last successful use of FMLA leave on
`March 14 and her termination on March 27, 2017. But regardless of the time period
`used, Evans cannot establish a causal connection based on temporal proximity. It is
`undisputed that Evans successfully used FMLA leave on many occasions between the
`time her reactive arthritis was first diagnosed and her termination. See Malloy v. U.S.
`Postal Serv., 756 F.3d 1088, 1091 (8th Cir. 2014) (employee’s prior use of FMLA
`leave “without repercussions” undercuts an inference of discrimination). Moreover,
`Evans’s unexcused absence on March 24 put her over the ten-point threshold for her
`termination three days later. See id. And CRC had warned Evans about excessive
`absences going back to 2014, before her reactive arthritis flared up. See id. (evidence
`of employer concern about performance problems before the employee’s protected
`activity “undercuts the significance of the temporal proximity”).
`
`Evans argues she established a prima facie case of discrimination because she
`was terminated for absences that qualified for FMLA leave. We disagree. First, as
`we have explained, CRC did not deny Evans FMLA leave to which she was entitled.
`Second, while terminating an employee for absences that were FMLA-eligible may
`establish an entitlement claim, it does not prove the discriminatory intent needed to
`establish a discrimination claim. See Brown, 711 F.3d at 891. An employer’s
`decision to terminate an employee based on the mistaken belief that an absence was
`not FMLA-eligible, standing alone, does not establish a prima facie case of
`discrimination. Hansen v. Fincantieri Marine Group, LLC, 763 F.3d 832, 835 n.1
`(7th Cir. 2014), on which Evans relies, is not controlling and is readily
`distinguishable.
`
`Even assuming Evans established a prima facie case of discrimination, we
`agree with the district court she did not meet her burden to show that CRC’s
`legitimate nondiscriminatory reasons for firing her -- accumulating ten points of
`unexcused absences -- was pretextual. CRC’s employee work policy expressly
`prohibited “unexcused absences without approved leave.”
`
`-15-
`
`

`

`Because we conclude that CRC did not unlawfully terminate Evans, we need
`not consider her lost wages claim. The judgment of the district court is affirmed.
`______________________________
`
`-16-
`
`