No. 20-3518 ___________________________

Brandon Whittington

Plaintiff - Appellant

v.

Tyson Foods, Inc.

Defendant - Appellee ____________

Appeal from United States District Court for the Western District of Missouri - Jefferson City ____________

Submitted: September 23, 2021 Filed: December 29, 2021 ____________ Before KELLY, ERICKSON, and GRASZ, Circuit Judges. ____________ GRASZ, Circuit Judge.

While working at Tyson Foods, Inc. (“Tyson”), Brandon Whittington experienced severe depression and anxiety. As a result, he took intermittent leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2612. Tyson initially approved Whittington’s intermittent leave after Whittington produced certification from his psychiatrist. But when Whittington failed to produce recertification from his psychiatrist, Tyson terminated him. Whittington sued Tyson, asserting multiple claims, but the district court ultimately granted summary judgment in favor of Tyson. Whittington now appeals the district court’s 1 grant of summary judgment on his FMLA interference claim only. We affirm the district court’s grant of summary judgment in favor of Tyson.

I. Background

Whittington worked at Tyson from July 2016 to March 2018. Whittington was diagnosed with depression and anxiety. After consulting with his human resources (“HR”) supervisor, Whittington requested FMLA leave on August 3, 2017. Whittington’s psychiatrist, Dr. Mary Beegle, certified his FMLA leave from August 3 to August 13, 2017. Dr. Beegle further stated that Whittington would continue to suffer episodes of anxiety and depression, lasting four to five days per episode, once or twice every one to two months for the next twelve months. Tyson approved Whittington’s August leave request and further approved Whittington to take FMLA leave on an intermittent basis going forward under Dr. Beegle’s certification.

Tyson’s Leave of Absence policy required employees returning from FMLA or non-FMLA medical leave to provide “a Return to Work Certification from their health care provider indicating that they are able to resume work, with or without reasonable accommodation.” After Whittington returned to work on August 13, he submitted a Return to Work Certification form completed by Dr. Beegle. In this certification, Dr. Beegle indicated Whittington could return to work without any restriction. Whittington continued to use Dr. Beegle’s certification for approved intermittent FMLA leave on September 28, October 3, December 4, and December 5, 2017.

1 The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri. -2- Whittington again requested FMLA leave from December 8 to December 18, 2017. Tyson responded by informing Whittington of his rights and responsibilities under the FMLA and notifying Whittington he had until December 27, 2017, to provide information supporting his FMLA leave request. Whittington timely submitted certification from Dr. Beegle stating that Whittington needed to take the requested FMLA leave. Again, the certification stated that Whittington would need intermittent leave for episodes lasting four to five days per episode, once or twice every one to two months for the next year. Whittington also provided a Return to Work Certification from Dr. Beegle indicating Whittington could return to work without restrictions. Tyson approved Whittington’s leave. Whittington continued to use intermittent FM