Kathleen Norton v. LTCH, 620 F. App'x 408

Background

Norton, a registered nurse with ~17 years at McLaren Bay Special Care (MBSC), had documented attendance problems and three prior written reprimands for tardiness/absenteeism.
In June 2013 Norton experienced vestibular migraines, took intermittent FMLA leave for two weeks, and MBSC approved intermittent FMLA retroactive to June 6 after she submitted forms.
MBSC required employees on intermittent FMLA to call a Family Leave Call Center at least two hours before any FMLA-covered absence; Norton knew of and used this procedure at least once in June or July.
On July 14 Norton arrived two minutes late for a shift without calling the FMLA line or explaining the reason to management; she did not notify MBSC that her tardiness was migraine-related until after termination.
On July 18 MBSC managers met with Norton, terminated her employment for continued attendance violations, and Norton sued for FMLA interference and retaliation; the district court granted summary judgment for MBSC.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
FMLA interference: Did Norton give notice that July 14 tardiness was FMLA‑protected?	Norton: her vestibular migraines caused the tardiness and should have been treated as FMLA leave.	MBSC: Norton never informed management that the July 14 tardiness was due to a serious health condition and failed to follow the required two‑hour call‑in procedure.	Held: No interference — Norton failed to provide adequate notice for FMLA leave on July 14.
Adequacy of prior intermittent‑leave notice	Norton: existing intermittent FMLA approval and prior calls put MBSC on notice that future tardiness related to the same condition.	MBSC: intermittent approval does not relieve Norton of the specific call‑in requirement for each absence.	Held: Prior approval was insufficient; she still had to notify per policy.
FMLA retaliation: Was termination a pretext for FMLA retaliation?	Norton: MBSC treated similarly situated employee (Pogue) more favorably, showing pretext for retaliation.	MBSC: Pogue’s conduct differed (forgot to clock in but was on time and immediately explained), so not a valid comparator; disciplinary variations were minor or pre‑dated FMLA.	Held: No retaliation — Norton failed to show substantially identical comparator or other evidence of pretext.
Validity of MBSC’s two‑hour notice requirement under FMLA	Norton: MBSC’s notice rule may violate FMLA because emergencies can make advance notice impracticable.	MBSC: policy permitted exceptions if notified as soon as practicable; Norton never communicated she was late due to a medical condition.	Held: Court did not reach the merit of the rule because Norton never gave any timely notice that July 14 tardiness was FMLA‑related.

Key Cases Cited

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir.) (summary judgment review standard)
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (Sup. Ct.) (construing facts for summary judgment)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (Sup. Ct.) (summary judgment standard)
Donald v. Sybra, Inc., 667 F.3d 757 (6th Cir.) (FMLA notice requirement analysis)
Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549 (6th Cir.) (employee notice obligations under FMLA)
Brenneman v. MedCentral Health Sys., 366 F.3d 412 (6th Cir.) (what constitutes adequate notice of FMLA leave)
Brock v. United Grinding Techs., Inc., 257 F. Supp. 2d 1089 (S.D. Ohio) (employer need not assume later absences are FMLA‑related)
Joostberns v. United Parcel Servs., Inc., [citation="166 F. App'x 783"] (6th Cir.) (requirement of substantially identical conduct for comparator analysis)
DeBoer v. Musashi Auto Parts, Inc., [citation="124 F. App'x 387"] (6th Cir.) (probative value of employer’s failure to follow its own policies)
Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274 (6th Cir.) (distinguishing FMLA interference and retaliation claims)
EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir.) (pretext standard in discrimination claims)
Ritenour v. Tenn. Dep’t of Human Servs., [citation="497 F. App'x 521"] (6th Cir.) (employer may discipline for attendance policy violations)