Brandon Whittington v. Tyson Foods, Inc., 21 F.4th 997

Whittington, employed by Tyson (July 2016–March 2018), suffered from depression and anxiety and obtained psychiatrist Dr. Beegle’s certification for FMLA intermittent leave in August 2017.
Dr. Beegle’s certifications anticipated episodic leaves of four-to-five days per episode, once or twice every one-to-two months; Tyson approved intermittent FMLA leave on that basis.
In February–March 2018 Whittington missed 16 consecutive workdays and returned March 6 with a doctor’s note that did not state fitness-for-duty or work restrictions; Tyson requested an updated certification.
Tyson told Whittington to provide sufficient recertification by March 21; he did not provide it, and Tyson terminated him on March 23 for failing to return from leave and failing to communicate.
Whittington sued alleging, inter alia, FMLA interference based on Tyson’s March recertification request and termination; the district court granted summary judgment to Tyson, and Whittington appealed the FMLA interference ruling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Tyson’s March 2018 recertification request and subsequent termination interfered with Whittington’s FMLA rights	Recertification and firing before he could obtain paperwork unlawfully interfered with his FMLA leave	Recertification was lawful because circumstances changed significantly (16 consecutive days vs. certified 4–5 day episodes); failure to provide recertification and communicate justified termination under company policy	Court held recertification reasonable as a matter of law under 29 U.S.C. § 2613(e) and 29 C.F.R. § 825.308(c)(2); summary judgment for Tyson affirmed
Whether Tyson violated 29 C.F.R. § 825.312 by requiring a fitness-for-duty certification and firing Whittington before he produced it	Tyson violated § 825.312(f) by terminating him before he obtained a fitness-for-duty certificate	Argument was not raised in Whittington’s summary-judgment response or opening brief, so it was waived	Court affirmed district court’s refusal to consider the § 825.312 argument as untimely/waived

Evans v. Coop. Response Ctr., Inc., 996 F.3d 539 (8th Cir. 2021) (standard of review for summary judgment and viewing facts in plaintiff’s favor)
Thompson v. Kanabec Cnty., 958 F.3d 698 (8th Cir. 2020) (elements of an FMLA interference claim and prejudice requirement)
Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149 (8th Cir. 2016) (prejudice requirement in FMLA interference claims)
To v. U.S. Bancorp, 651 F.3d 888 (8th Cir. 2011) (summary judgment appropriate where employer’s decision was reasonable as a matter of law)
Ames v. Nationwide Mut. Ins. Co., 760 F.3d 763 (8th Cir. 2014) (procedural and summary-judgment principles in employment cases)