Birmingham v. Hyundai Motor Manufacturing Alabama, LLC (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

NICHOLAS BIRMINGHAM, )

)

Plaintiff, )

)

v. ) CASE NO. 2:23-CV-737-KFP

)

HYUNDAI MOTOR MANUFACTURING )

OF ALABAMA, LLC, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This is an employment discrimination case rooted in Plaintiff Nicholas

Birmingham’s termination from employment with Defendant Hyundai Motor

Manufacturing, Alabama, LLC. Birmingham alleges disability discrimination in violation

of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a), and retaliation in

violation of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2615(a)(2).

The parties consented to a United States Magistrate Judge conducting all

proceedings in this case through final judgment. Docs. 14–15. Before the Court is

Hyundai’s Motion for Summary Judgment. Doc. 23. Upon consideration of the motion,

along with Birmingham’s Response (Doc. 30), Defendant’s Reply (Doc. 34), and the

parties’ evidentiary submissions (Docs. 24, 29), the Court finds that Defendant’s Motion

for Summary Judgment is due to be granted.

I. SUMMARY JUDGMENT STANDARD OF REVIEW

Under Rule 56(a) of the Federal Rules of Civil Procedure, a reviewing court must

grant a motion for summary judgment if the movant shows that there is no genuine dispute

as to any material fact and that the moving party is entitled to a judgment as a matter of

law. Fed. R. Civ. P. 56(a). A dispute “is ‘genuine’ if the record as a whole could lead a

reasonable trier of fact to find for the nonmoving party. . . . [A dispute] is ‘material’ if it

might affect the outcome of the case under the governing law.” Redwing Carriers, Inc. v.

Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)).

The party asking for “summary judgment always bears the initial responsibility of

informing the district court of the basis for its motion” and alerting the court to portions of

the record that support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

However, once the movant has satisfied this burden, the nonmovant is similarly required

to cite portions of the record showing the existence of a material factual dispute. Id. at 324.

To avoid summary judgment, the nonmovant “must do more than simply show that there

is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). “The relevant rules of substantive law dictate the

materiality of a disputed fact.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.

2000) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). In determining

whether a genuine dispute of fact for trial exists, the court must view all the evidence in

the light most favorable to the nonmovant and draw all justifiable inferences from the

evidence in the nonmoving party’s favor. McCormick v. City of Fort Lauderdale, 333 F.3d

1234, 1243 (11th Cir. 2003); see also Fed. R. Civ. P. 56(a).

II. JURISDICTION AND VENUE

The Court has original subject matter jurisdiction pursuant to 28 U.S.C. § 1331 over

this case arising from claims under the ADA and FMLA. Personal jurisdiction and venue

are not contested, and the Court concludes that venue properly lies in the Middle District

of Alabama. 28 U.S.C. § 1391.

III. BACKGROUND

A. Hyundai Employment Policies

Hyundai has an attendance policy that requires a “minimum acceptable standard of

attendance” at 99%. Doc. 24-6 at 20; see also Doc. 24-14 at 18; Doc. 24-15 at 21. The

policy further notes that “[a]ny scheduled workday missed is considered an absence” unless

it is “due to holidays, approved vacation time, personal time, catastrophic events, jury duty,

military leave, bereavement leave, short-term disability, work-related injury or illness,

personal leave of absence and FMLA leave.” Doc. 24-6 at 20. When an employee’s

percentage falls below 99.3% for absences not approved during a “rolling twelve-month

period, corrective action will be considered” for the employee. Id. at 21. For employees in

the corrective action process who have “attendance [which] continues to be unacceptable[,]

it could result in further corrective action up to and including termination.” Id. The steps

that “must be followed” in the corrective action process are: (1) Informal Discussion, (2)

Formal Discussion, (3) Commitment Discussion, and (4) Termination. Id.

In addition to the standard attendance policy outlined above, Hyundai also has an

Excessive Absenteeism policy. The Excessive Absenteeism policy defines “excessive” as

five unexcused absences in a period of two weeks. Doc. 24-15 at 18. “If a Team Member

has five unexcused absences during a two-week period, they would be issued a serious

misconduct for excessive absenteeism regardless of what stage of corrective action the

Team Member may already have in their personnel file.” Id. Team Members who engage

in egregious absenteeism effectively accelerate the corrective action process. Id. “A Team

Member who is not already on an active ‘serious misconduct’ who has a series of absences

that could qualify as ‘serious misconduct’ is given an ‘off-base’ warning letter” and given

the opportunity “to demonstrate that such absences are in fact covered by approved leave

and therefore not subject to being counted.” Doc. 24-14 at 3.

The Serious Misconduct Policy notes that “serious and/or excessive violations of

[Hyundai’s] attendance policy” constitute serious misconduct. Doc. 24-6 at 17. In cases of

Serious Misconduct, the Team Member: (1) will receive a letter of Conditional

Employment, (2) will participate in a formal meeting, and (3) will be “required to write a

commitment letter by the end of his/her shift the following business day.” Id.

The Termination of Employment Policy emphasizes that “a Team Member [who]

refuses to respond to the steps in the ‘Corrective Action Program’” or “[a] Team Member[]

[whose] actions are such that [Hyundai] feels his/her employment cannot be continued, . . .

will be terminated.” Id. at 19.

B. Factual Background

Birmingham was employed by Hyundai and served as a member of the engine

production division at the plant in Montgomery, Alabama. Birmingham suffers from

respiratory conditions, including asthma, so he sought, and was approved for, FMLA leave

during the applicable rolling FMLA year in 2022. However, in 2022, Birmingham also

accumulated absences that were not covered by FMLA, including some absences for which

FMLA was denied.

By December 2022, Birmingham had accumulated multiple absences not covered

by any absence policy. Doc. 24-14 at 21. On December 9, 2022, Hyundai sent Birmingham

an “off base” warning letter, (Id. at 3), requiring him to provide “documentation showing

that [his] work absences . . . for September 30, 2022, November 2, 2022 through November

4, 2022, November 12, 2022, November 14, 2022 through November 15, 2022, November

20, 2022 through November 22, 2022, November 29, 2022 through November 30, 2022,”

and from “December 1, 2022 through December 2, 2022, and December 5, 2022 [were]

covered by some form of [] approved leave.” Id. at 21. This letter warned that

“[Birmingham’s] failure to provide the required documentation by December 23, 2022 may

result in [Hyundai] terminating [his] employment.” Id.

Hyundai’s Employment Review Committee (ERC) scheduled a meeting for January

20, 2023, to review Birmingham’s absenteeism. In preparation for the meeting, Ta’Lon

Brown, Hyundai’s Assistant Manager of Investigations, prepared an Investigation

Summary (January Summary) for the ERC. Doc. 24-14 at 3. In the January Summary,

Brown detailed that Birmingham produced documentation supporting that short term

disability was approved for some of the dates in question; he was approved for November

20, 22, 29, 30, and December 1, 2, and 5. Id. at 3–4. However, even though Birmingham

submitted a claim for leave under FMLA for part of November 2, and for the days of

November 3, 4, 12, 14, and 15, Birmingham failed to provide documentation of an

approved form of leave for these dates. Id. Ultimately, these unapproved and uncovered

November dates comprised five days absent within a 14-day period, which constituted

“excessive” absences under Hyundai policy. Id. at 4, 18. The January Summary further

detailed that “Birmingham has a current attendance percentage that is below the required

[] attendance percentage of 99%.” Id. at 10.

The January Summary reiterated Hyundai’s Excessive Absenteeism policy (Doc.

24-14 at 18) that “[i]f a Team Member has 5 unexcused absences (unapproved medical

leaves) during a two-week period, they would be issued a serious misconduct for excessive

absenteeism regardless of what stage of corrective action the Team Member may already

have in their personnel file,” and that “[o]nce a Team Member has received a serious

misconduct for attendance, they can be reviewed for termination if they have one (1) more

unexcused absence . . . and their attendance percentage has not improved above 99%

during a rolling 12-month period.” Doc. 24-14 at 12–13.

At the ERC meeting on January 20, 2023, the January Summary was presented and,

“based on the November 2, 3, 4, 12, 14, and 15, absences” (Doc. 24-15 at 4) detailed in the

January Summary, Reginald Williams, the Senior Manager of Human Resources, decided

to place Birmingham on Serious Misconduct (Doc. 24-14 at 4). On February 1, 2023,

Birmingham’s Manager Jermaine Mitchell, Brown, and Team Relations Representative

Christopher Arnold met with Birmingham to notify him of his placement on Serious

Misconduct. Doc. 25 at 6; Doc. 24-14 at 4; Doc. 24-16 at 99:1–11; Doc. 24-17 at 92:2–5;

Doc. 24-19 at 2. At the meeting, Birmingham was issued a “Letter of Conditional

Employment” which stated that the denied FMLA leave on September 30, November 2, 3,

4, 12, 14, 15, 20, 21, 22, 29, 30, and December 1, 2, and 5 all “affected [his] attendance

percentage” and that Birmingham’s “current attendance percentage is below the required

[Hyundai] attendance percentage of 99%.” Doc. 24-14 at 32. The Letter stated that because

he fell below the required attendance percentage, he was “being issued a Letter of

Conditional Employment/Serious Misconduct” and that he was “required to write a

commitment letter explaining what [he would] do to prevent this from reoccurring in the

future” and that the “letter is due to [his] management team by the end of [his] next shift

Thursday[,] February 2, 2023.” Id. The Letter was signed by Birmingham, his manager, a

team relations representative, and a manager of team relations. Id.

Birmingham was scheduled to work the next day on February 2, 2023. Doc. 24-1 at

27. Birmingham testified that he “called in” to report that he was not going to attend work

that day “because of [his] health.” Id. at 101:3–14. However, Birmingham’s deposition

transcript contains the entry of a tape recording, confirmed in his deposition, which

captured his call-in to work on February 2nd in which Birmingham stated “Nicholas

Birmingham, Team Member Number 105378, group leader Mildred Lee. I’m not coming

in today.” Id. at 101:17–102:14. There was no reason given or additional information

included in the message as to why he did not report to work. Thus, under Hyundai’s

Excessive Absenteeism Guide Procedure, Birmingham did not provide an approved reason

for missing his scheduled shift. Doc. 24-1 at 28; Doc. 24-6 at 20; Doc. 24-14 at 35–36, 38.

The following day, February 3, 2023, Brown produced an Investigation Summary

(February Summary) noting Birmingham “accrued additional unpaid time on February 2,

2023,” and the management team “requested that [he] be . . . reviewed for termination as a

result of excessive absenteeism.” Doc. 24-14 at 26. On February 10, 2023, Birmingham

submitted a Commitment Letter in which he stated that he would “put forth effort to be at

work everyday my shift is scheduled” and that he has been “missing days due to health

issues” and “went over time of FMLA so days weren’t covered.” Id. at 33. On February

16, 2023, another ERC meeting was held, and Williams then made the decision to terminate

Birmingham from employment for having “an additional unexcused absence on February

2, 2023,” after being placed on Serious Misconduct. Doc. 24-15 at 5.

In a letter dated February 21, 2023, Hyundai communicated to Birmingham its

termination decision, noting “[t]here are certain things that a Team Member can do that by

nature are so serious that the actions place the Team Member outside of [Hyundai’s]

Corrective Action Policy” and that Hyundai “may terminate the employment of the Team

Member.” Doc. 24-14 at 38. Because Birmingham was “absent from work on February 2,

2023 after receiving a Serious Misconduct for excessive absences on February 1, 2023,”

Hyundai concluded it “has no alternative but to terminate [Birmingham’s] employment.”

Id.

IV. DISCUSSION

Hyundai argues for summary judgment on both the ADA discrimination claim and

the FMLA retaliation claim. The Court will first address the ADA claim, then the

retaliation claim.

A. Birmingham’s ADA claim.

Birmingham asserts in his Complaint he had a disability and that Hyundai’s decision

to terminate him for “absences based on his medical impairments reflected discrimination

based on his disability” in violation of the ADA. Doc. 1 ¶ 27–28. Hyundai argues that

Birmingham failed to establish a prima facie case because he cannot show that Hyundai

was aware of Birmingham’s disability before discharging him and because Birmingham

cannot establish that he could perform the job’s essential functions of maintaining regular

attendance. Doc. 25 at 11. Hyundai alternatively argues that even if Birmingham could

show a prima facie case, Birmingham cannot show that his disability was a “but/for” cause

for his discharge from employment. Id. at 11–12.

Courts frequently “use the same McDonnell Douglas burden-shifting framework

that often applies in Title VII claims” when assessing an ADA claim. Akridge v. Alfa Ins.,

93 F.4th 1181, 1191 (11th Cir. 2024) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973)). This framework allows a plaintiff to use circumstantial evidence “to establish

a prima facie case of disability discrimination.” Id. The burden is first on the employee

plaintiff, and if the plaintiff is successful in establishing a case for discrimination, “the

burden of production shifts to the employer to articulate a legitimate, non-discriminatory

reason for its decision.” Id. Then, the employee has the burden “to present sufficient

evidence creating a genuine issue of material fact that the employer’s reason is a pretext

for discrimination.” Id.

“Title I of the ADA prohibits employers from ‘discriminat[ing] against a qualified

individual on the basis of disability in regard to . . . discharge of employees . . . and other

terms, conditions, and privileges of employment.’” Beasley v. O’Reilly Auto Parts, 69 F.4th

744, 754 (11th Cir. 2023) (alteration in original) (quoting 42 U.S.C. § 12112(a)). “To

establish a prima facie case of discrimination under the ADA, a plaintiff must show that

he (1) is disabled, (2) is a ‘qualified individual,’ and (3) was discriminated against because

of his disability.” Id.

The Court assumes, for purposes of summary judgment, that Birmingham is

disabled and satisfies the first element for a prima facie case because in its motion for

summary judgment, Hyundai does not address Birmingham’s alleged disability.1 Thus, at

this stage, the Court will not examine whether Birmingham is disabled.

The second element of a prima facie case requires that the plaintiff show he is

qualified to perform the essential functions of his job. Beasley, 69 F.4th at 754, 758.

Birmingham argues that “the record lacks evidence that [his] attendance was deficient to

1 In passing in its reply brief, Hyundai argues Birmingham “offers . . . nothing showing he had a

disability[.]” Doc. 34 at 6. Although it is Birmingham’s burden as the plaintiff to make out his prima facie

case, Hyundai’s passing statement in the reply brief is insufficient to raise this issue for the Court’s

consideration on summary judgment. See Samuels v. Midland Funding, LLC, 921 F. Supp. 2d 1321, 1333

(S.D. Ala. 2013) (“District courts . . . ordinarily do not consider arguments raised for the first time on reply.”

(citing Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (“As we have repeatedly

admonished, arguments raised for the first time in a reply brief are not properly before a reviewing

court.”))); see also Sapuppo v. Allstate Floridian Ins., 739 F.3d 678, 681 (11th Cir. 2014) (holding “that an

appellant abandons a claim when he either makes only passing references to it or raises it in a perfunctory

manner without supporting arguments and authority.”).

the point that he could not regularly report to work.” Doc. 30 at 11. In support of this, he

cites to the fact that the string of absences at issue occurred “more than 10 weeks prior to

Birmingham’s termination” and that these absences do not support the finding that

Birmingham was not capable of adhering to a regular work schedule. Id. at 11–12. Hyundai

argues that Birmingham “cannot prove at time of discharge that he could perform the job’s

essential functions” of maintaining regular attendance, so he was unqualified for the job.

Doc. 25 at 11. The Court finds that Birmingham has not established he was qualified to

perform the essential functions of his job.

“A ‘qualified individual’ is ‘an individual who, with or without reasonable

accommodation, can perform the essential functions of the employment position that such

individual holds or desires.’” Mazzeo, 746 F.3d at 1267–68 (quoting 42 U.S.C.

§ 12111(8)). Courts assess whether an individual is “qualified” by going through a two-

step process. Reed v. Heil Co., 206 F.3d 1055, 1062 (11th Cir. 2000)). The court first asks

“whether the plaintiff satisfies the position’s prerequisites, including ‘sufficient experience

and skills, an adequate educational background, or the appropriate licenses for the job,’”

and then “the [c]ourt analyzes whether the individual can perform the essential functions

of the job.” Schultz v. Royal Caribbean Cruises, Ltd., 465 F. Supp. 3d 1232, 1271 (S.D.

Fla. 2020) (quoting Reed, 206 F.3d at 1062). When assessing “whether a particular job

duty is an essential function,” courts “consider the employer’s judgment” in addition to

other factors including “the amount of time spent on the job performing the function” and

“the consequences of not requiring the individual to perform the function.” Anderson v.

Embarq/Sprint, 379 F. App’x, 924, 927–28 (11th Cir. 2010).2 Courts can look at employee

handbooks to guide the review of whether attendance is an essential job function. See Earl

v. Mervyns, Inc., 207 F.3d 1361, 1366 (11th Cir. 2000) (“Appellee’s policy handbook

contained a detailed punctuality policy and Appellee implemented a comprehensive system

of warning and reprimands for violations of the policy.”).

More broadly, the Eleventh Circuit has repeatedly affirmed the notion that

“attendance” can be an essential function of a job when evidence is introduced that supports

that finding. See Earl, 207 F.3d at 1365–66 (finding that when evidence in the record

emphasized the importance of punctuality that “punctuality is an essential function” of the

job); Jackson v. Veterans Admin, 22 F.3d 277, 279 (11th Cir. 1994) (affirming the district

court’s holding that the employee “failed to prove he is an otherwise qualified individual

because he has failed to satisfy the presence requirement of the job”); Garrison v. City of

Tallahassee, 664 F. App’x 823, 826 (11th Cir. 2016) (affirming the district court’s finding

that “[employee] was unable to perform an essential function of her job” and was thus not

a “qualified individual” when she failed to maintain “full-time physical attendance”).

Hyundai introduced evidence that an essential function of Birmingham’s job was to

maintain his attendance. See Doc. 24-6 at 20–21; Doc. 24-15 at 4; Doc. 24-18 at 35:15–

36:7. To start, the Employee Handbook notes that “[r]egular attendance is every Team

Member’s responsibility, and every Team Member is expected to be on the job and on time

every scheduled workday.” Doc. 24-6 at 20. Hyundai’s Excessive Absenteeism policy

2 Here, and elsewhere in this Opinion, the Court cites to non-binding authority. While the Court recognizes

that these cases are not precedential, the Court finds them persuasive.

emphasized that a Team Member’s attendance percentage was so important, that a Team

Member who is already on Serious Misconduct for Excessive Absenteeism “can be

reviewed for termination if they have one (1) more unexcused absence . . . and their

attendance percentage has not improved above 99% during a rolling 12-month period.”

Doc. 24-14 at 18. Hyundai also established that Birmingham was aware of the importance

of his attendance as an essential function of his job. By his own admissions, Birmingham

acknowledged that his regular and on time attendance was necessary, Doc. 24-1 at 25:16–

22, and also recognized that an essential function of his role was to be present, alert,

working at the machines, and that this function was impossible to do from home. Doc. 24-

1 at 24:7–10; 24:13–21. In his Commitment Letter, Birmingham acknowledged that he

knew “missing work is not tolerated” and stated that he “will do a better job of coming to

work.” Doc. 24-14 at 33. Birmingham’s argument in his brief that his absences do not

“remotely suggest that [he] was incapable of adhering to a regular work schedule” is

contradicted by the evidence, which includes his own admissions of the importance of

attendance.

The evidence introduced reveals that attendance was an essential function of the job,

and Hyundai was entitled to require regular attendance as a job qualification. Thus,

Birmingham’s ongoing absences made him unqualified as a Team Member, and the Court

finds that Birmingham cannot meet the second element of a prima facie discrimination case

because he has failed to establish that he was “qualified” for the job. For this reason,

summary judgment is due to be granted in favor of Hyundai on the disability discrimination

claim.

Critically, even if Birmingham could establish that he was qualified for the job, his

ADA discrimination claim still cannot move beyond summary judgment because he cannot

show that he was discriminated against based on his disability. To “satisfy the third element

of an ADA discrimination claim” the plaintiff must establish his “employer discriminated

against an employee ‘because of [his] disability.’” Burks v. Wellstar Health Systems, 2024

U.S. Dist. LEXIS 237274, at *5 (N.D. Ga. Dec. 2, 2024) (quoting Cleveland v. Home

Shopping Network, Inc., 369 F.3d 1189, 1197 (11th Cir. 2004)). This element of the prima

facie case has long been understood as a “‘but-for’ causation standard[,]” meaning that “an

adverse employment action would not have occurred but for the plaintiff’s disability.”

Akridge, 93 F.4th at 1192.

Hyundai argues that Birmingham has not established that Williams, the person

making the termination decision, was aware Birmingham was disabled. Doc. 25 at 11.

Hyundai argues alternatively that even if Birmingham could establish Williams’s

knowledge of his disability at the time he was discharged, Birmingham cannot show that

the reasons Hyundai offered for Birmingham’s termination were false and that but-for his

disability, he would not have been discharged. Id. at 11–12.

The Eleventh Circuit has affirmed the principle that “[a]n employer cannot be liable

under the ADA for firing an employee when it indisputably had no knowledge of the

disability.” Morisky v. Broward County, 80 F.3d 445, 448 (11th Cir. 1996) (quoting

Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 932 (7th Cir. 1995)). If the employer “does

not know of the disability, the employer is firing the employee ‘because of some other

reason.’” Id. (quoting Hedberg, 47 F.3d at 932). “[A] decision-maker who lacks actual

knowledge of an employee’s disability cannot fire the employee ‘because of’ that

disability.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1186 (11th Cir. 2005). “Liability

under the ADA requires the employer to have discriminated because of the employee’s

disability as the employer had actual knowledge of the alleged disability at the time it took

adverse employment action.” Howard v. STERIS Corp., 550 F. App’x 748, 751 (11th Cir.

2013). “Discrimination is about actual knowledge, and real intent, not constructive

knowledge and assumed intent.” Cordoba, 419 F.3d at 1183 (quoting Silvera v. Orange

Cnty. Sch. Bd., 244 F.3d 1253, 1262 (11th Cir. 2001)).

Birmingham makes multiple arguments as to why and how Hyundai and Williams

were aware of his disability. Birmingham asserts that “details in the record suggest” that

Williams knew Birmingham had a medical condition. Doc. 30 at 12. Birmingham also

argues that because “Williams conceded that it was ‘possible’ the commitment letter was

presented” at the meeting when Birmingham was fired that Williams knew that he was

suffering from a prolonged illness. Id. at 13–14. He argues that because his absences arose

from denied FMLA leave, the Court must infer that Williams knew of his disability because

“an employee who was repeatedly submitting FMLA claims was potentially suffering from

some prolonged illness.” Id. at 12–13.

None of these arguments are availing. To start, the evidence speaks to the contrary.

In his affidavit, Williams testified that the decision to terminate Birmingham was based on

the February Summary. Doc. 24-15 at 5. In the February Summary, Birmingham was

“reviewed for termination as a result of excessive absenteeism” after he “was placed in a

Serious Misconduct for Attendance on February 1, 2023, and accrued additional unpaid

time on February 2, 2023.” Doc. 24-15 at 26. Williams testified that he “know[s] of no

discussion of any respiratory condition, no past nor future FMLA leave uses,” nor was

Williams “aware [Birmingham] had any kind of respiratory condition.” Doc. 24-15 at 5.

This evidence shows that Williams had no knowledge of Birmingham’s disability when he

terminated Birmingham.

Birmingham’s argument of inference also fails. Birmingham points to the Serious

Misconduct Finding in January 2023, which “describes [his] absences as all arising from

denied FMLA leave” (Doc. 30 at 12) and argues that this requires the Court to accept that

Williams knew of his FMLA-related illness. Birmingham wants to equate a need for FMLA

with confirmation of a disability and is asking the Court to rely on “constructive

knowledge” and “assumed intent” rather than providing the Court with evidence showing

anyone had actual knowledge of Birmingham’s disability or evidence from which a

reasonable inference of discrimination could arise. Cordoba, 419 F.3d at 1183. Such

amorphism the Court cannot accept. An individual need not have a disability as defined by

the ADA to apply for or be granted FMLA leave. See Blake v. City of Montgomery, 492 F.

Supp. 3d 1292, 1302 (M.D. Ala. 2020) (“Plaintiff has the initial burden of establishing the

elements of [the] FMLA claim, which include demonstrating a qualifying medical

condition that justified [the] absence.” (alterations in original)). Therefore, the leap

Birmingham requests is not justifiable. For these reasons, the Court finds that Birmingham

has failed to establish the third element of the disability discrimination prima facie case.

Again, this warrants summary judgment.

Yet, still, moving further through the framework, the Court finds that Hyundai has

met its burden of production and articulated the legitimate, non-discriminatory reason of

excessive absenteeism for its termination decision. Hyundai has introduced a consistent

paper trail documenting Birmingham’s termination was directly related to his excessive

absenteeism demonstrated by five unapproved days off in a 14-day period, and then

missing another day of work without approved leave the day after he was given a serious

misconduct violation. Doc. 24-15 at 35. Birmingham’s termination letter highlights that

the singular cause of his termination was the serious misconduct violation related to

absenteeism, and the evidence in the record does not contradict this reason. Id. For these

reasons, Hyundai has met its burden of demonstrating a legitimate, non-discriminatory

reason for Birmingham’s termination.

Finally, the Court will assess whether Birmingham has shown that Hyundai’s non-

discriminatory reason was pretextual. “Pretext means that the reason given by the employer

was not the real reason for the adverse employment decision.” Cusick v. Yellowbook, Inc.,

607 F. App’x 953, 955 (11th Cir. 2015). “An employee can show that the employer’s

articulated reason was false by pointing to ‘weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions’ in the proffered explanation.” Id. (quoting Combs v.

Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997)). To succeed on a pretext

argument, the plaintiff must “show[] both that the reason was false and that discrimination

was the real reason.” Id. This inquiry centers around “the employer’s beliefs, not the

employee’s perceptions of his performance.” Id.

Birmingham has not shown Hyundai’s provided reason was pretextual. First,

Birmingham’s argument that “the company justified firing Birmingham on the grounds

that he failed to timely present his commitment letter regarding correction of his attendance

issues” is unsupported by the record. Doc. 30 at 15. Birmingham relies on Hyundai’s EEOC

position statement to argue that Hyundai has given inconsistent reasons for his termination.

The position statement provides the following statement regarding his termination:

The decision to end Mr. Birmingham’s employment had nothing to do with

any disability. Even assuming for argument purposes Mr. Birmingham had a

disability, [Hyundai] had no knowledge of it, including Reggie Williams, the

person who decided to end Mr. Birmingham’s employment. . . . [Hyundai]

terminated Mr. Birmingham’s employment because he violated [Hyundai]’s

Attendance and Serious Misconduct Policies due to his excessive

absenteeism after being given opportunity after opportunity to provide

documentation to have absences approved.

Doc. 24-16 at 90 (Pl’s Ex. 8). The position statement further describes after being issued a

Serious Misconduct, Birmingham was “asked [] that he submit a Commitment letter,” but

he “failed to submit this letter on time.” Id. at 91. While the position statement does address

his failure to timely submit his Commitment Letter after being issued the Serious

Misconduct, this factual recitation does not warrant an inferential pole-vault to conclude

that Hyundai terminated him because he delayed submission of the letter. Neither can an

inference be drawn that his termination must have been related to his disability because his

Commitment Letter “contains his assertion that he was ‘missing days due to health issues,

went over time of FMLA, so days weren’t covered.’” Doc. 30 at 13. Instead, the position

statement underscores that Hyundai gave Birmingham abundant time to come forward with

any information to excuse the absences it had calculated in support of the Serious

Misconduct.

Although the position statement does not mention the February 2nd absence, it is

consistent with Hyundai’s explanation that Birmingham’s excessive absenteeism for which

no leave covered was a serious misconduct violation warranting termination. The position

statement accurately reflects that Birmingham was given an opportunity to produce

anything supporting a finding that the absences at issue were covered by leave or otherwise

approved, and it accurately notes that he missed his deadline to do so. The position

statement’s omission of mentioning the February 2nd absence does not reflect a

contradiction or inconsistency in Hyundai’s explanation. Birmingham’s argument that

there is a dearth of evidence demonstrating why the unapproved and uncovered February

2nd absence was the decisive event ignores the record that the absence came on the heels

of the serious misconduct finding and the expiration of the opportunity to cure any mistake

in the absence calculation up to that point. Doc. 24-18 at 99:5–16.

Birmingham also appears to argue that because Hyundai was not obligated to fire

him for his absences per the Handbook, Birmingham was terminated for a reason other

than his absences, or that he was wrongfully terminated for an excused absence. In support

of this position, Birmingham argues that “Williams conceded that he has no knowledge of

any internal rule that creates a zero tolerance policy for additional absences after being

issued a serious misconduct finding for attendance issues.” Doc. 30 at 15, see also Doc 24-

18 at 21. Birmingham suggests a lower level of discipline could have been selected (Doc.

30 at 16, see also Doc. 24-16 at 102:6–14, 106:5–13), and Birmingham also argues, without

pointing to supporting evidence, that his absence on February 2nd was wrongfully “deemed

an unexcused absence.” Doc. 30 at 16.

None of these arguments support a finding that Hyundai’s reason for Birmingham’s

termination is pretextual—no inconsistency, contradiction, or falsity in the explanation is

found on this record. Cusick, 607 F. App’x at 955. The February 21, 2023, termination

letter explained that Birmingham committed actions in violation of the Serious Misconduct

Policy. He was “absent from work on February 2, 2023, after receiving a Serious

Misconduct for excessive absences on February 1, 2023.” Doc. 24-14 at 38. The Serious

Misconduct Policy states that when a person commits an action that places them outside of

the Corrective Action Policy, that individual “may be terminated from employment

immediately.” Doc. 24-6 at 17. The first example on the list of “serious misconduct” is

“serious and/or excessive violations of [Hyundai]’s attendance policy.” Id. While the

policy allows for discretion “where it is determined that termination is not appropriate,”

and to issue a Letter of Conditional Employment to employees in violation, the policy does

not obligate Hyundai to extend this act of grace, and there is no evidence in this record that

the policy was applied differently to others, for example, who had no disability. Thus,

Birmingham has not shown that the reason offered for his termination is both false and that

disability discrimination is the real reason.

In sum, Birmingham has failed to make a prima facie case showing disability

discrimination; Hyundai has satisfactorily provided evidence showing a nondiscriminatory

reason for Birmingham’s termination; and Birmingham has failed to establish that

Hyundai’s reason was pretextual. Additionally, no matter the label assigned to his other

arguments—mosaic or otherwise—there is no other evidence in the record that supports an

inference of disability discrimination with respect to Hyundai’s termination decision. See

Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 954 (11th Cir. 2023), (Newsom, J.

concurring) (“[T]he decisive question [is]: Does the summary-judgment record reveal a

genuine dispute of material fact about whether an employer discriminated against its

employee ‘because of’ a protected characteristic?”). Accordingly, no matter at what stage

the framework is analyzed, Hyundai is due summary judgment on Birmingham’s claim of

discrimination under the ADA.

B. Birmingham’s FMLA retaliation claim.

Birmingham’s FMLA retaliation claim arises from Hyundai’s “disciplinary action

toward [him] [regarding] absences that were protected medical leave” and his “subsequent

termination [] based on his use of medical leave and the prospect that he might require

additional FMLA leave in the future[.]” Doc. 1 ¶ 34. Birmingham conceded that if the fact-

finder credits Hyundai’s reason for his termination—that it was triggered by Birmingham’s

February 2, 2023, absence following the serious misconduct violation notice—then he has

no cognizable FMLA retaliation claim. Doc. 30 at 18. But, he argued, if the fact-finder

determines he was terminated for not timely submitting his Commitment Letter, then he

insists he has a valid FMLA retaliation claim because his delayed letter submission was a

protest of an unlawful practice—he feared his Commitment Letter would preclude him

from future FMLA, if the need arose. Birmingham argues that his belief about the letter’s

power was objectively reasonable and should be credited.

The Letter of Conditional Employment recited Birmingham’s September,

November, and December absences for which he had applied, but was denied, FMLA. The

letter specifically notes the specified dates “were all denied and [] affected [his] attendance

percentage.” Doc. 24-14 at 32. The letter alerts Birmingham that this resulted in his

“current attendance percentage [being] below the required [Hyundai] attendance

percentage of 99%.” He was then required “to write a commitment letter explaining what

[he] will do to prevent these issues from reoccurring in the future.” Birmingham contends

the Letter of Conditional Employment is ambiguous in its reference to “these issues,”

which reasonably could be read to include not just falling below the 99% threshold, but,

instead, to the simple act of applying for and being denied FMLA. Birmingham

extrapolates this to argue he could have conceivably believed he was precluded from any

absence that decreased his attendance percentage, FMLA protected or not, applying for and

being denied FMLA leave, or exceeding allowable FMLA leave. Finally, Birmingham

argues generally that Hyundai’s policy “makes discretionary termination an option for a

worker who exhausts his FMLA leave and has to accrue an unexcused absence in the event

of a sudden illness,” and this could discourage FMLA use for an employee like

Birmingham whose serious misconduct letter would remain active for the ensuing 36

months.

Hyundai’s position is that Birmingham cannot create an issue of fact based on a

“wishful inference.” Hyundai argues that, based upon the substantive burden of proof,

Birmingham has failed to create an issue of fact on a material, i.e. “outcome-determinative”

issue. That is, because Birmingham was excessively absent under the policy, without leave

to excuse his absences (due, in part, to denied leave), from a job that requires regular

attendance as an essential function, his discharge cannot be presumed—or inferred—to be

anything other than legitimate and non-retaliatory enforcement of the policy.

To succeed on an FMLA retaliation claim, Birmingham “must demonstrate that

[Hyundai] ‘intentionally discriminated against him in the form of an adverse employment

action for having exercised an FMLA right.’” Jones v. Gulf Coast Health Care of Del.,

LLC, 854 F.3d 1261, 1270 (11th Cir. 2017) (quoting Strickland v. Water Works & Sewer

Bd. of City of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001)). Retaliation claims under

FMLA “can be supported with either direct or circumstantial evidence.” Lapham v.

Walgreen Co., 88 F.4th 879, 889 (11th Cir. 2023), cert. denied, 145 S. Ct. 162 (2024)

(citing Pennington v. City of Huntsville, 261 F.3d 1262, 1265 (11th Cir. 2001)). Where

retaliation is only alleged by circumstantial evidence, the McDonnell Douglas burden

shifting scheme applies. Id. Under this framework, it is plaintiff’s task to establish a prima

facie case of retaliation. Id. A prima facie case requires a showing that plaintiff (1)

“engaged in statutorily protected [conduct]”; (2) “suffered an adverse employment action”;

and (3) established “some causal relation between the two events.” Id. (alteration in

original). Following this showing, the burden “‘shifts to the defendant to proffer a

legitimate reason for the adverse action’ taken against the plaintiff.” Id. (quoting McAlpin

v. Sneads, 61 F.4th 916, 927 (11th Cir. 2023)). If the defendant satisfies this showing, the

burden shifts back to the plaintiff to establish that the defendant’s reason “is merely pretext

for prohibited, retaliatory conduct.” Id. (quoting McAlpin, 61 F.4th at 927).

“[T]aking FMLA leave” and then “suffer[ing] an adverse employment action [by

being] terminated” satisfies the first two elements of the framework for making a prima

facie case. Jones, 854 F.3d at 1271. The Court assumes, arguendo, that Birmingham could

establish that he engaged in statutorily protected FMLA activity. Without dispute, his

termination was an adverse action. See id. at 1270. Hyundai argues only that the causal

relation component of Birmingham’s FMLA retaliation claim is lacking, the but-for proof

component.

The Eleventh Circuit has provided the application of the but-for burden for FMLA

retaliation claims.

As relevant, but-for causation “is established whenever a particular outcome

would not have happened ‘but for’ the purported cause.” Bostock v. Clayton

County, 590 U.S. 644, 656 (2020). Thus, the but-for test “directs us to change

one thing at a time and see if the outcome changes.” Id. If it does, the isolated

factor is a but-for cause. And if it does not, the isolated factor is not a but-for

cause, and all of the other factors, taken together, are sufficient. See id.; see

also Burrage, 571 U.S. at 211 (describing a but-for cause as a “straw that

broke the camel’s back”). To be clear, single events often “have multiple but-

for causes,” so the but-for standard can be quite “sweeping,” depending on

the circumstances. Bostock, 590 U.S. at 656. For purposes of McDonnell

Douglas, this but-for standard demarcates the causation component of the

employee’s initial, prima facie showing requirement and also shapes the

subsequent burdens of both the employer (i.e., to proffer a legitimate reason

sufficient to justify the termination) and the employee (i.e., to show that the

reason proffered by the employer is pretextual).

Lapham, 88 F.4th at 894.

Here, the Court finds Birmingham has failed to produce sufficient evidence showing

that Hyundai’s proffered reason for his termination was merely pretext for retaliation and

that, but for the retaliation, Hyundai would not have fired him. To the extent Birmingham

argues that but for his delayed submission of the Commitment Letter, he would not have

been terminated, the evidence fails to support that leap. The Letter of Conditional

Employment (Doc. 24-14 at 32), Birmingham’s Commitment Letter (Doc. 24-14 at 33),

the Serious Misconduct Policy (Doc. 24-6 at 17), and Termination Letter (Doc. 24-14 at

38) together emphasize and acknowledge that if Birmingham was “absent” another day

without properly documented leave, he was eligible to be terminated. Birmingham took

unaccounted for leave the day after receiving the Letter of Conditional Employment. The

record establishes Hyundai then terminated his employment based on excessive

absenteeism under the policy. No other inference is reasonable on this record. The delay in

his production of the Commitment Letter (or his reasons for the delay concerning fear of

future, hypothetical adverse action) cannot support an inference on this record that but-for

his delay the decision to terminate would not have occurred. Hyundai’s explanation for the

termination is consistent on this record, and Birmingham’s argument as to his concern

about the future impact of the Commitment Letter does not undermine the explanation.

Birmingham relies on Graham v. State Farm Mutual Insurance Co., 193 F.3d 1274

(11th Cir. 1999), to argue that he had a reasonable concern about the unknown

consequences of the Commitment Letter on potential future FMLA leave. There, the

plaintiff argued that a memorandum documenting her absences “led her to believe that she

was going to be terminated if she missed any more days of work,” even if further absences

were FMLA-qualifying. 193 F.3d at 1284. However, the Eleventh Circuit, in discussing

plaintiff’s constructive discharge claim, determined the plaintiff’s perception that the

memorandum was a threat of adverse action on future FMLA leave was unreasonable

because the memo clearly addressed non-FMLA covered absences. Id. The Eleventh

Circuit further determined that plaintiff’s subjective belief was not determinative. Id.

Birmingham also cites Munoz v. Selig Enterprises, 981 F.3d 1265 (11th Cir. 2020)

for his argument. Munoz concerned the district court’s summary judgment for the employer

where the employee had absences due to endometriosis and was terminated after she

refused to sign a performance memo. In a meeting discussing her improvement plan,

plaintiff brought up her need to take future FMLA leave. Id. at 1281. Her employer did not

distinguish between FMLA-protected absences and unprotected absences despite her

raising a concern in the meeting. Plaintiff alleged she told her supervisors “she believed

signing the Memo would subject her to discipline for further FMLA-qualifying leave.” Id.

In response, the supervisors did not assuage her understanding. Instead, one supervisor

“indicated perhaps she should not receive future leave because she was not legitimately

ill.” Id. at 1282. The Eleventh Circuit concluded “[plaintiff] reasonably believed that

signing the Memo would waive her FMLA rights.” Id. But under the employer’s version

of the facts, it was possible they counseled plaintiff about the implications of signing the

Memo, that she did not bring up her health concerns until after she was fired, and her

supervisor did not “express[] doubt about her illness until after she had been terminated.”

Id. The Eleventh Circuit explained that “[u]nder [the employer’s] view of the facts,

[plaintiff’s] understanding that the Performance Memo terminated her right to future

FMLA leave would be objectively unreasonable.” Id. Thus, the Eleventh Circuit concluded

this presented a quintessential question that a factfinder, not the Court, should resolve, and

reversed the district court’s summary judgment finding.

Neither case supports a finding here that Birmingham has created a material factual

dispute. First, the record does not demonstrate that he was terminated because he delayed

submitting the Commitment Letter. Second, the record does not establish that he raised any

concern about his future use of FMLA leave based on the Commitment Letter. Finally, the

record does not support a finding or inference that Birmingham’s perception of the future

impact of the Commitment Letter was reasonable.

Thus, the Court finds Birmingham failed to show that Hyundai’s proffered reason

for his termination was merely a pretext for retaliation and that but-for his exercise or

attempt to exercise his FMLA rights, he would not have been terminated and summary

judgment is due to be granted to Hyundai on Birmingham’s retaliation claim.

V. CONCLUSION

For the reasons stated above, it is ORDERED that Hyundai’s Motion for Summary

Judgment (Doc. 23) is GRANTED. A separate judgment will issue.

DONE this 6th day of March, 2025.

/s/ Kelly Fitzgerald Pate

KELLY FITZGERALD PATE

UNITED STATES MAGISTRATE JUDGE