Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ANDREW BROWN,

Plaintiff,

v. Case No. 8:24-cv-2777-VMC-LSG

CSX TRANSPORTATION, INC.,

Defendant.

/

ORDER

This matter is before the Court on consideration of

Defendant CSX Transportation, Inc.’s Motion for Summary

Judgment (Doc. # 174), filed on October 14, 2025. Plaintiff

Andrew Brown responded on November 12, 2025. (Doc. # 180).

CSX replied on November 26, 2025. (Doc. # 186). For the

reasons that follow, the Motion is granted in part and denied

in part.

I. Background:

A. The Parties

“CSX is a freight railroad headquartered in

Jacksonville, Florida that has approximately 23,000

employees.” (Johnson Decl. at ¶ 1). Mr. Brown began working

for CSX as a conductor in July 2006. (Pl. Depo. at 27:2-5).

Mr. Brown worked in CSX’s Train & Engine (“T&E”) service, and

the terms of his employment were governed by a collective

bargaining agreement (“CBA”). (Doc. # 15-11 at ¶ 2).

B. Staffing and Scheduling Procedures for T&E

Employees

CSX “operates a 365-days-a-year business,” which

requires some employees to work on weekends and holidays.

(Doc. # 152 at ¶ 1). T&E employees like Mr. Brown “do not

work a set schedule and instead are called to work on an as-

needed basis.” (Doc. # 15-3 at ¶ 6; Pl. Depo. at 29:9-30:3).

“T&E employees indicate that they are available for work by

‘marking up’ for it, and indicate that they are not available

for work by ‘marking off.’” (Doc. # 15-3 at ¶ 6). If an

employee marks off from work for FMLA leave, “the leave period

starts when the employee marks off from work and ends when

the employee marks back up for work.” (Id.).

Many T&E employees are assigned to “pools” that operate

trains between two or more locations. (Doc. # 15-11 at ¶ 3).

Mr. Brown’s pool operated trains between Jacksonville and the

Tampa area. (Pl. Depo. at 39:23-40:1). Employees in a pool

are placed on a board based on when they returned to their

home terminal and are called in to work on a rotating basis.

(Doc. # 15-11 at ¶ 3). “When a train is ready for departure,

the employee at the top of the board is called to work.”

(Id.). “Federal law prohibits employees who operate trains

from being on duty for more than 12 consecutive hours, and

requires at least 10 consecutive hours of rest between on-

duty periods.” (Id. at ¶ 4). “Accordingly, upon arriving at

the away-from-home terminal, employees in pool service often

stay overnight for their federally-mandated rest period, and

are then called to operate a train back to their home terminal

sometime later.” (Id.). When Mr. Brown was assigned to a pool,

he was on-call 24 hours a day unless he was marked off for

some reason or on required rest. (Pl. Depo. at 29:17-31:2).

Although T&E employees had vacation days, the number of

employees permitted to take vacation on any particular day

was capped. (Id. at 25:10-26:12; Varecka Depo. at 68:13-69:7;

Bright Depo. at 33:22-35:11). If T&E employees marked off as

sick, they would be assessed points under CSX’s Attendance

Points System (“CAPS”), which could lead to discipline. (Doc.

# 15-11 at ¶ 11; Doc. # 15-15). Points were not assessed if

an employee took FMLA leave. (Doc. # 15-11 at ¶ 11). After

CSX implemented this attendance policy in or around 2015,

“requests for or the use of FMLA” “nearly . . . doubled or

tripled.” (2018 Jolanda Johnson Depo. at 49:14-50:2).

C. CSX Disciplinary Procedures

Pursuant to CSX policy, dishonesty is a dismissible

offense. (Doc. # 174-17). The CBA sets forth the disciplinary

process and procedures applicable to union members. (Doc. #

113-3 at ¶ 2). “The first step in the disciplinary process is

to notify the employee in writing of the charges.” (Id. at ¶

3). “Then, unless the employee waives his right to a hearing

and admits the misconduct, CSX holds a hearing on the

charges.” (Id.). “A CSX manager – known as the ‘hearing

officer’ – conducts the hearing, questioning witnesses and

ruling on evidentiary objections. A Company official –

sometimes referred to as the ‘charging officer’ – testifies

about the basis of the charges.” (Id.). Charged employees can

be represented by a union representative and present

testimony and evidence in their defense. (Id. at ¶ 4; John

Johnson Depo. at 13:13-16).

“After the hearing, the hearing officer may issue

findings, but does not issue discipline.” (Doc. # 113-3 at ¶

5). “Typically, disciplinary decisions are made by either the

General Superintendent for the Region or his designee, after

receiving a recommendation from Labor Relations.” (Id.).

“The hearing officer’s findings are not binding on the

manager(s) who ultimately decide on discipline.” (Id.).

An employee may challenge CSX’s disciplinary

determination by filing a grievance pursuant to the CBA. (Doc.

# 15-11 at ¶ 17). The CBA establishes a “multi-step grievance

process culminating in final and binding arbitration,” in

which the “arbitrator can reduce or overturn the discipline.”

(Id.).

Pursuant to the CBA, CSX may suspend an employee charged

with a major offense, such as dishonesty, pending a hearing.

(Id. at ¶ 15; Doc. # 174-17). The CBA also provides that

employees must be charged within 10 days from the date the

offense is discovered, and that CSX must make its disciplinary

determination within 30 days of the hearing. (Doc. # 15-14 at

4, 8).

D. Mr. Brown’s Application for and Initial Use of FMLA

Leave

In May 2017, Mr. Brown applied for intermittent FMLA

leave for “major depression and insomnia.” (Doc. # 174-3 at

2). Mr. Brown’s doctor estimated that Mr. Brown would need to

take intermittent FMLA leave once a month for up to two days

per episode due to his conditions. (Id.). CSX approved the

application. (Pl. Depo. at 55:13-15).

FMLA leave is not to be used to avoid working on weekends

or holidays. (2018 Jolanda Johnson Depo. at 195:7-11). In

August 2017, CSX sent Mr. Brown a warning letter after he

used FMLA leave on four weekends over a six-week period. (Doc.

# 174-4). Although Mr. Brown testified that he did not recall

receiving that letter, he does not deny that it was sent or

dispute its accuracy. (Pl. Depo. at 57:15-58:22; Doc. # 174-

8 at 32:13-21). The letter stated that CSX had reviewed Mr.

Brown’s work history and determined that it appeared that he

was misusing FMLA leave “as supported by [his] established

pattern of marking off FMLA leave on the weekends, in

conjunction with other days off (i.e. rest days, vacation

days, etc.), holidays or other pattern as indicated on the

attached page.” (Doc. # 174-4 at 2). The letter further stated

that continued FMLA misuse could lead to a disciplinary

hearing. (Id.).

E. CSX Implements an Automated System for Identifying

Employees to Investigate for FMLA Misuse

In 2016, CSX implemented an automated process of

identifying employees whose FMLA usage met certain criteria.

(2018 Jolanda Johnson Depo. at 40:5-42:3). The purpose of

this system was to identify employees who demonstrated a

pattern of FMLA usage to extend their time off. (Id. at 42:16-

46:16, 55:3-56:23, 59:2-62:23). The program identified

employees who had used FMLA leave on the weekend or in

conjunction with any scheduled days off five times over the

last 12 weeks. (Id. at 59:3-61:21, 69:5-70:4, 101:18-22). The

criteria for what the program flagged as potential FMLA misuse

were determined by looking at dates in which CSX had high

FMLA usage. (Id. at 158:20-162:25). CSX Senior Benefits

Manager Jolanda Johnson determined the criteria in

collaboration with CSX’s Labor Relations, Crew Management,

and Law Departments. (Id. at 41:19-42:1, 44:3-9, 55:9-15).

Each week, Ms. Johnson receives an email with the names

of flagged employees and conducts “an individualized review”

of each employee’s FMLA usage. (Id. at 38:19-40:10). In

conducting this review, Ms. Johnson looks at the medical

information on file, the FMLA usage that has been flagged,

and any documentation that could support the pattern of FMLA

usage. (Id. at 82:16-83:11). If Ms. Johnson suspects FMLA

misuse after her individualized review, the employee is

notified in writing that CSX has identified a pattern of

suspected misuse and that their FMLA usage will continue to

be monitored. (Id. at 99:12-101:8). If an employee continues

exhibiting a pattern of using FMLA on weekends or to extend

time off, the employee will receive a final warning letter,

and, if the pattern continues, can lead to a formal reprimand

and discipline up to dismissal. (Id. at 101:9-103:16).

F. CSX Investigation into Increased FMLA Usage During

the 2017-2018 Winter Holidays

According to CSX, “an abnormally large number of T&E

employees marked off from work for what they claimed was FMLA

leave” during “Christmas 2017 and New Year’s 2018.” (Doc. #

113-2 at ¶ 2). “[A]s Christmas Day approached, the number of

FMLA mark-offs steadily increased, with approximately 800

employees – close to 10% of CSX’s T&E workforce – marked off

on Christmas morning.” (Id.). “By contrast, less than 200 T&E

employees were marked off for FMLA leave on the afternoon of

December 18, one week before Christmas.” (Id.). “After

Christmas, employees who had marked off for FMLA leave marked

back up for work.” (Id.). “FMLA mark-offs increased again

over the New Year’s holiday, with approximately 400 T&E

employees marked off on New Year’s Day.” (Id.). Mr. Brown

does not dispute the amount of FMLA usage during this period

but asserts that it was not “abnormal” or “suspicious” and

suggests alternative explanations for the increase in FMLA

usage during this time. (Doc. # 180 at 4 ¶ 21). Mr. Brown

further asserts that “CSX lacked a baseline to determine what

was suspicious” as CSX did not systematically track FMLA usage

until 2016. (Id.) (citing 2018 Jolanda Johnson Depo. at 42:22-

43:23, 158:20-159:7, 161:15-23).

Due to the increased FMLA usage, CSX “believed that some

employees used FMLA leave dishonestly” and investigated

possible FMLA misuse. (Doc. # 113-2 at ¶ 3). For each employee

who took intermittent FMLA leave over the Christmas or New

Year’s holidays, “CSX reviewed their recent leave history to

determine whether it showed a pattern of marking off on

holidays or other special occasions.” (Id.). The look-back

period for charges related to FMLA misuse on Christmas

included “Father’s Day, the Fourth of July, Labor Day,

Columbus Day, Halloween, Veterans Day, Thanksgiving, the day

after Thanksgiving, Christmas Eve, [and] Christmas Day.”

(Johnson Decl. at ¶ 3). CSX Senior Benefits Manager Jolanda

Johnson conducted an “individualized review” of T&E employees

who marked off for FMLA leave during four of the last ten

holidays. (2018 Jolanda Johnson Depo. at 139:17-138:20,

141:12-20, 223:9-11; Johnson Decl. at ¶ 1). The review

consisted of considering whether the employee had provided an

explanation to justify his or her FMLA usage and, although

Ms. Johnson has no medical background, “looking at the medical

facts, looking at what the employee’s approved for.” (2018

Jolanda Johnson Depo. at 137:21-139:14, 141:12-20). Ms.

Johnson did not charge with dishonesty T&E employees who had

cancer, were terminally ill, or were about to give birth as

Ms. Johnson deemed these conditions sufficient to justify the

usage of FMLA leave. (Id. at 144:19-146:5).

Mr. Brown disputes that Ms. Johnson conducted an

individualized review of the employees and asserts that the

employees were charged “mechanically, with no individualized

investigation.” (Doc. # 180 at 5 ¶¶ 22, 25). However, Mr.

Brown does not cite to any record evidence that disputes Ms.

Johnson’s testimony that she conducted an individualized

review of each employee prior to charging them with

misconduct.

Out of the hundreds of employees who took intermittent

FMLA leave over the 2017-2018 end-of-year holidays, CSX

charged 123 with FMLA leave dishonesty over Christmas, with

81 subjected to discipline, and charged 54 employees with

FMLA dishonesty over New Year’s, with 38 disciplined.

(Johnson Decl. at ¶¶ 4-5).

G. CSX Charges and Dismisses Mr. Brown for FMLA Leave

Dishonesty

Mr. Brown took FMLA leave from the day before

Thanksgiving until 12:46 a.m. on the day after Thanksgiving,

when he had the first of two scheduled rest days. (Doc. #

174-11 at 20). Mr. Brown also took FMLA leave on Christmas

Eve and Christmas Day 2017, followed by two consecutive rest

days. (Johnson Decl. at ¶ 6). Mr. Brown worked on December

28, 29, and 30, 2017. (Pl. Depo at 66:24-67:21). Mr. Brown

took FMLA leave again on New Year’s Eve and had New Year’s

Day off as a vacation day. (Johnson Decl. at ¶ 6).

By letter dated January 8, 2018, CSX scheduled a hearing

on charges that Mr. Brown misused FMLA leave between December

22 and 26, 2017. (Doc. # 174-6 at 2). Mr. Brown was suspended

from service pending the hearing. (Id.). The letter informed

Mr. Brown of his right to representation as set forth in the

CBA and that he could present witnesses in his defense. (Id.).

One week later, CSX sent Mr. Brown a second letter scheduling

a hearing on his alleged misuse of FMLA leave between December

30, 2017, and January 2, 2018. (Doc. # 174-7).

At the hearing on the Christmas holiday charge, Ms.

Johnson explained that Mr. Brown was charged with violating

CSX Operating Rule 104.2(a), which prohibits employee

dishonesty, and CSX’s FMLA policy by using FMLA leave on

December 24 and 25, 2017, to avoid working on holidays. (Doc.

# 174-8 at 28:13-29:33). Ms. Johnson testified that the charge

was based on three factors: (1) “the high FMLA utilization

[CSX] experienced over the Christmas holidays in 2017”; (2)

“an individualized review of Mr. Brown’s FMLA usage over the

recent holidays and other events”; and (3) the fact that Mr.

Brown was sent “a counseling letter in August of 2017 in

regards to how he was using his FMLA” either before or after

his rest days and on weekends. (Id. at 22:6-12, 32:30-33).

Regarding the individualized review, Ms. Johnson explained

that she looked “at how Mr. Brown was off over the recent

holidays,” including, Thanksgiving and Black Friday, followed

by a rest day, and Christmas Eve and Christmas Day, followed

by rest days. (Id. at 23:33-44). Ms. Johnson concluded that,

“based on the facts and circumstances surrounding the FMLA

utilization that occurred specifically on 12/24 and

12/25/2017, it was clear that Mr. Brown misused FMLA by using

FMLA to avoid working over the Christmas holiday in 2017.”

(Id. at 24:4-7). When asked by Mr. Brown’s union

representative if there was any way Ms. Johnson could know

when Mr. Brown’s serious health condition would manifest, Ms.

Johnson merely reiterated her position that “using FMLA to

avoid working holidays is not the purpose of FMLA” and “it is

FMLA misuse or fraudulent use.” (Id. at 30:35-45). Ms. Johnson

acknowledged that Mr. Brown had a serious health condition

that caused “unforeseeable” episodes but nevertheless

explained that he was subjected to disciplinary charges

because “he has consistently used FMLA on holidays or other

events.” (Id. at 39:27-32).

Mr. Brown testified in his defense, stating that he

worked on December 22 and 23, 2017, but took FMLA leave on

December 24 because he “wasn’t in a present state to be

working that day” due to personal issues. (Id. at 41:38-40,

43:35-43). Mr. Brown denied misusing FMLA leave and

maintained he only used it when he needed it. (Id. at 43:2-

3). Mr. Brown further explained why he took FMLA leave on

Christmas Eve and Christmas Day as follows:

I don’t feel I’ve misused FMLA for marking off for

Christmas Eve, Christmas Day. It’s just, I wasn’t

in the right frame of mind. It’s just been a rough

year, and the holidays has made it a lot worse. And

there was no way I was able to perform my duties on

that day that I needed to perform safely. It’s just,

when you’re used to having something a certain way

every year for the same holidays, it’s just rough.

And this is one of the first years it’s been

different. Like I said, I don’t, I don’t even like

the holidays right now. So I feel like I didn’t, I

wasn’t being dishonest when I marked off FMLA.

(Id. at 47:25-34). Mr. Brown did not call any other witnesses

or offer any documentary evidence in his defense. (Id. at

47:12-16).

After the hearing, hearing officer A.J. La Force found

that the charge of violating Operating Rule 104.2(a) was

proven as the testimony of Ms. Johnson and CSX trainmaster

Ramon Woods “clearly show [Mr. Brown] marked off FMLA on

Holiday to avoid working” and that Mr. Brown had received

“many warnings” about FMLA misuse. (Doc. # 174-23). CSX’s

Director of Labor Relations, Melissa L. Wheaton, reviewed the

hearing record and recommended discipline of “30 days/time

served based on similarly situated employees handled in these

investigations.” (Doc. # 174-24). Ms. Wheaton noted that Mr.

Brown did not offer medical documentation to support his FMLA

leave on Christmas Eve and Christmas Day. (Id.). CSX’s General

Superintendent for the South, William Charles Blanchetti,

Jr., also reviewed the hearing transcripts and agreed with

Ms. Wheaton’s recommendation. (Blanchetti Depo. at 12:18-

13:17; Doc. # 174-12). Mr. Brown remained out of service

pending the outcome of his hearing on the New Year’s Eve

charge. (Id.).

At the hearing on the New Year’s Eve charge, CSX Human

Resources Manager Tremaylen Anderson testified that Mr. Brown

was charged with violating Operating Rule 104.2(a) and CSX’s

FMLA policy for taking FMLA leave on December 31, 2017. (Doc.

# 174-10 at 20:16-21, 21:45-22:18, 26:11-13). Ms. Anderson

stated that the grounds for the charge were the high FMLA

utilization among CSX employees on New Year’s Eve and New

Year’s Day as well as Mr. Brown’s FMLA usage over recent

holidays. (Id. at 22:20-23:4). Ms. Anderson stated that a

review of Mr. Brown’s FMLA usage from June 15, 2017, through

January 3, 2018, showed that he “consistently used FMLA to

avoid working holidays on other events.” (Id. at 23:8-14).

Mr. Brown did not provide any information showing that he

took his FMLA leave for an approved use. (Id. at 26:6-9). Mr.

Brown denied violating the Operating Rule or misusing FMLA

leave on New Year’s Eve, stating that he used FMLA leave “as

it was intended, prescribed by my doctor.” (Id. at 30:40-

31:4, 32:18-24, 35:11-13). Mr. Brown did not call any other

witnesses or introduce any documentary evidence. (Id. at

34:42-35:2).

The hearing officer, Mr. La Force, found that the

testimony of CSX’s witnesses showed that Mr. Brown misused

FMLA leave by marking off on New Year’s Eve and that Mr. Brown

“was warned formally no less than 3x that pattern holiday

layoff could be handled as [misuse].” (Doc. # 174-25). After

reviewing the hearing record, Ms. Wheaton recommended that

Mr. Brown be terminated. (Wheaton Depo. at 73:3-22). Mr.

Blanchetti reviewed the hearing transcript and agreed with

Ms. Wheaton. (Blanchetti Depo. at 13:4-17; Doc. # 174-13). By

letter dated February 22, 2018, CSX informed Mr. Brown that

he was terminated based on CSX’s determination that he

violated Operating Rule 104.2(a) on New Year’s Eve. (Id.).

Mr. Brown’s union challenged CSX’s disciplinary

decisions, which were upheld at arbitration before the Public

Law Board. (Doc. # 93-3 at 37-38, 40-44). Regarding the

Christmas holiday charge, the arbitrator determined that Mr.

Brown “was afforded a fair and impartial hearing” and that

there was “sufficient evidence in the record to support the

finding that [Mr. Brown] violated [CSX’s] Operating Rule

[104.2(a)].” (Id. at 38). Regarding the New Year’s charge and

dismissal, the arbitration panel found that the

“circumstantial evidence and the reasonable inference to be

drawn there from would lead a reasonable person to deduce

that the claimant’s mark-off history exhibited a pattern that

he used FMLA leave solely to avoid working on holidays and to

extend his time off, and not for legitimate medical reasons.”

(Id. at 43).

H. Procedural History

In the amended complaint, Mr. Brown alleges that CSX

violated his rights under the FMLA by subjecting him to the

CAPS attendance policy and by suspending and ultimately

terminating him for taking FMLA leave. (Doc. # 149 at ¶¶ 48,

51). The amended complaint asserts the following claims: FMLA

interference (Count I) and FMLA retaliation (Count II). (Id.

at ¶¶ 46-52). CSX filed an answer denying the allegations.

(Doc. # 152).

Pursuant to the parties’ joint stipulation (Doc. # 153),

the Court dismissed Mr. Brown’s claims related to the

attendance policy. (Doc. # 161). Thus, only Mr. Brown’s claims

regarding his termination remain.

CSX moves for summary judgment on all claims. (Doc. #

174). Mr. Brown has responded (Doc. # 180), and CSX has

replied. (Doc. # 186). The Motion is ripe for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995) (quoting Celotex Corp., 477 U.S. at

324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true, and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

A. The FMLA

“The FMLA grants eligible employees a series of

entitlements, among them the right to ‘a total of 12 workweeks

of leave during any 12–month period’ for a number of reasons,

including ‘a serious health condition that makes the employee

unable to perform the functions of the position of such

employee.’” Jones v. Gulf Coast Health Care of Delaware, LLC,

854 F.3d 1261, 1267 (11th Cir. 2017) (quoting 29 U.S.C. §

2612(a)(1)(D)). “To preserve the availability of these

rights, and to enforce them, the FMLA creates two types of

claims: interference claims, in which an employee asserts

that his employer denied or otherwise interfered with his

substantive rights under the Act, and retaliation claims, in

which an employee asserts that his employer discriminated

against him because he engaged in activity protected by the

Act.” Strickland v. Water Works & Sewer Bd. of City of

Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001) (internal

citations omitted).

“To state a claim of interference with a substantive

right, an employee need only demonstrate by a preponderance

of the evidence that he was entitled to the benefit denied.”

Id. at 1206–07. “In contrast, to succeed on a retaliation

claim, an employee must demonstrate that his employer

intentionally discriminated against him in the form of an

adverse employment action for having exercised an FMLA

right.” Id. at 1207. “In other words, a plaintiff bringing a

retaliation claim faces the increased burden of showing that

his employer’s actions were motivated by an impermissible

retaliatory or discriminatory animus.” Id.

B. FMLA Retaliation

Mr. Brown alleges that CSX violated the FMLA when it

suspended and later terminated him for taking FMLA leave over

Christmas and New Year’s Eve 2017. (Doc. # 149 at ¶ 51).

CSX argues that it is entitled to summary judgment on

the FMLA retaliation claim because “CSX has articulated a

legitimate, non-discriminatory reason for his discipline –

his dishonest use of FMLA leave – and [Mr.] Brown cannot show

that it is pretext for retaliation. Nor can he demonstrate

that, but-for a retaliatory motive, CSX would not have

disciplined him.” (Doc. # 174 at 14-15). In response, Mr.

Brown argues that summary judgment is not warranted as “a

reasonable jury could find that CSX’s investigation of [Mr.]

Brown was insufficiently reliable to be worthy of credence.”

(Doc. # 180 at 13). The Court agrees with Mr. Brown.

“Claims of retaliation can be supported with either

direct or circumstantial evidence.” Lapham v. Walgreen Co.,

88 F.4th 879, 889 (11th Cir. 2023). Where, as in the instant

case, “a plaintiff alleging retaliation presents only

circumstantial evidence and no direct evidence, we apply the

burden-shifting framework set forth by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-05, 93

S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Lapham, 88 F.4th at 889.

Under the McDonnell Douglas framework, “the plaintiff

bears the initial burden of proving his prima facie case.”

McAlpin v. Sneads, 61 F.4th 916, 927 (11th Cir. 2023). To do

so, “the plaintiff must show that: (1) he engaged in

statutorily protected expression; (2) he suffered an adverse

employment action; and (3) there is some causal relation

between the two events.” Id. (internal quotation marks

omitted). “If the plaintiff successfully establishes a prima

facie case, ‘the burden shifts to the defendant to proffer a

legitimate reason for the adverse action.’” Id. (quoting

Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th

Cir. 2000)). “This responsive burden is a simple burden of

production that can involve no credibility assessment.”

Lapham, 88 F.4th at 889 (internal quotation marks omitted).

If the defendant successfully rebuts the presumption,

the McDonnell Douglas framework “simply drops out of the

picture.” Ismael v. Roundtree, 161 F.4th 752, 764 (11th Cir.

2025) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

511 (1993)). The inquiry then becomes “whether ‘the record,

viewed in a light most favorable to the plaintiff, presents

a convincing mosaic of circumstantial evidence that would

allow a jury to infer intentional discrimination [or

retaliation] by the decisionmaker.’” Id. (quoting Smith v.

Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)).

“A convincing mosaic may be shown by evidence that

demonstrates, among other things, (1) suspicious timing,

ambiguous statements . . . , and other bits and pieces from

which an inference of discriminatory intent might be drawn,

(2) systematically better treatment of similarly situated

employees, and (3) that the employer’s justification is

pretextual.” Lewis v. City of Union City, 934 F.3d 1169, 1185

(11th Cir. 2019) (internal quotation marks omitted).

An employee may demonstrate that the employer’s “reasons

were pretextual by revealing such weaknesses,

implausibilities, inconsistencies, incoherencies or

contradictions in [the employer’s] proffered legitimate

reasons for its actions that a reasonable factfinder could

find them unworthy of credence.” Springer v. Convergys

Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1348 (11th Cir. 2007)

(internal quotation marks omitted). However, “[a] plaintiff

cannot show pretext merely by showing that an employer’s good

faith belief that she engaged in misconduct is mistaken.”

Foster v. Biolife Plasma Servs., LP, 566 F. App’x 808, 811

(11th Cir. 2014); E.E.O.C. v. Total Sys. Servs., Inc., 221

F.3d 1171, 1176 (11th Cir. 2000) (holding that, in

investigating improper workplace conduct, an employer “is

entitled to rely on its good faith belief about falsity,

concealment, and so forth”). “[A] reason is not pretext for

discrimination ‘unless it is shown both that the reason was

false, and that discrimination was the real reason.’”

Springer, 509 F.3d at 1349 (citation omitted). Regardless,

“summary judgment should not be granted for failure to

demonstrate pretext unless it also reflects a failure to put

forward enough evidence for a jury to find for the plaintiff

on the ultimate question of discrimination or retaliation.”

Ismael, 161 F.4th at 763 (internal quotation marks omitted).

Here, CSX does not dispute that Mr. Brown has established

a prima facie case of FMLA retaliation by demonstrating: (1)

that he took intermittent FMLA leave; (2) that he was

suspended and later terminated; and (3) that there was a

causal relationship between his use of FMLA leave and CSX’s

disciplinary decisions. McAlpin, 61 F.4th at 927.

Accordingly, the burden shifts to CSX to proffer a legitimate

reason for its disciplinary action. Id.

CSX has proffered a legitimate explanation – the

company’s determination that Mr. Brown misused FMLA leave –

for its suspension and termination of Mr. Brown. See Total

Sys. Servs., 221 F.3d at 1176 (finding that an employer’s

conclusion that an employee lied in an internal investigation

was a legitimate nondiscriminatory reason for termination);

Alexander v. The Bd. of Educ. of City of New York, 648 F.

App’x 118, 120–21 (2d Cir. 2016) (holding that misuse of FMLA

leave is a non-retaliatory basis for dismissal); Medley v.

Polk Co., 260 F.3d 1202, 1207 (10th Cir. 2001) (“[A]n employer

who discharges an employee honestly believing that the

employee has abandoned her job and is otherwise not using

FMLA leave for its here ‘intended purpose’ . . . would not be

in violation of FMLA, even if its conclusion is mistaken,

since this would not be a discriminatory firing.”). However,

Mr. Brown argues that CSX’s proffered reason is merely pretext

for its suspension and dismissal of Mr. Brown for taking FMLA

leave. The Court agrees with Mr. Brown that a reasonable jury

could infer that CSX retaliated against him for using FMLA

leave.

Mr. Brown analogizes this case to Parker v. CSX

Transportation, Inc., No. 2:18-cv-00274-MHH, 2021 WL 3022703

(N.D. Ala. July 16, 2021), which arose from CSX’s termination

of another employee, William Parker, for FMLA misuse over

Christmas and New Year’s Eve 2017. In Parker, CSX offered

three bases for its claimed good faith belief that Mr. Parker

misused FMLA leave: (1) statistical evidence, (2) the fact

that Mr. Parker used FMLA leave on holidays, and (3) Mr.

Parker’s failure to produce probative medical records. Id. at

*14-21. The court determined that Mr. Parker presented

evidence contradicting each of CSX’s proffered reasons. Id.

at *14. The court found that CSX’s “ad hoc 4-in-10 test for

identifying the employees who CSX would investigate further

for their presumed FMLA misuse” was problematic because

“[o]nly by examining an employee’s overall FMLA usage could

CSX determine if there was anything suspicious about the use

of FMLA leave over several holidays.” Id. at *15. The court

rejected CSX’s contention that Mr. Parker’s mark-offs on

Christmas, New Year’s Eve, and other recent holidays were

“inherently suspicious,” and determined that, in failing to

consider Mr. Parker’s full FMLA usage during that period,

“[j]urors could find that CSX intentionally avoided evidence

in its own records that might contradict its theory of FMLA

misuse.” Id. at *16-18. Finally, the court rejected CSX’s

argument that Mr. Parker’s credibility was undermined by his

failure to provide medical records proving the validity of

his FMLA leave over the holidays because CSX admittedly could

not require employees to produce such documentation and CSX

could have used the recertification process set forth in 29

C.F.R. § 825.308 as a “legitimate tool to obtain medical

evidence relating to an employee’s use of FMLA leave.” Id. at

*16-19. The court therefore denied CSX summary judgment on

Parker’s FMLA retaliation claim because the record contained

“disputed questions of fact concerning the reasonableness of

CSX’s investigation of Mr. Parker’s use of FMLA leave over

the holidays.” Id. at *14, 21.

Mr. Brown argues that “[e]ach of the concerns raised by

the court in Parker applies with equal force here.” (Doc. #

180 at 14). Specifically, Mr. Brown argues that a reasonable

jury could find that CSX’s investigations into the Christmas

and New Year’s Eve charges were “insufficiently reliable to

be worthy of credence” because: (1) CSX relied on arbitrary

statistics regarding company-wide FMLA usage over the holiday

season and regarding Mr. Brown’s use of FMLA leave; (2) the

mere fact that Mr. Brown had taken FMLA leave on holidays did

not make his mark-offs inherently suspicious; and (3) CSX

essentially placed the burden on Mr. Brown to prove he did

not misuse FMLA leave. (Doc. # 180 at 13-18).

Mr. Brown also argues that the fact that Ms. Johnson did

not charge employees who had cancer, were terminally ill, or

were about to give birth with FMLA misuse over the Christmas

and New Year holidays “belies the claim that CSX was simply

engaged in a neutral application of its policies” as “CSX

does not and cannot point to any reason to believe these

individuals marked off FMLA leave honestly while others

lied.” (Id. at 18). Mr. Brown posits that a reasonable jury

could “infer that CSX sought to avoid applying what it

recognized was a draconian and imperfect disciplinary purge

to employees whose plight might be particularly sympathetic.”

(Id.).

Mr. Brown cannot “get to a jury by merely criticizing

CSX’s investigation.” Adams v. CSX Transportation, Inc., No.

2:18-cv-00319-RDP, 2020 WL 1285544, at *9 (N.D. Ala. Mar. 18,

2020) (granting CSX summary judgment on an FMLA retaliation

claim arising from CSX’s suspension of an employee for FMLA

misuse on Christmas 2017 where employee did not point to “any

Rule 56 evidence that suggests that CSX’s belief that he

misused FMLA leave, even if in error, was not in good faith”).

Courts “are not in the business of adjudging whether

employment decisions are prudent or fair.” Damon v. Fleming

Supermarkets Of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.

1999). “Instead, our sole concern is whether unlawful

[retaliatory] animus motivates a challenged employment

decision.” Id. The Eleventh Circuit has “repeatedly and

emphatically held that a defendant may terminate an employee

for a good or bad reason without violating federal law.” Id.

When improper conduct is reported, “the employer can lawfully

ask: is the accusation true?” Total Sys. Servs., 221 F.3d at

1176. “When the resulting employer’s investigation . . .

produces contradictory accounts of significant historical

events, the employer can lawfully make a choice between the

conflicting versions — that is, to accept one as true and to

reject one as fictitious — at least, as long as the choice is

an honest choice.” Id. “And, in carrying out its business and

in making business decisions (including personnel decisions),

the employer can lawfully act on a level of certainty that

might not be enough in a court of law.” Id. “[A]n employer,

in these situations, is entitled to rely on its good faith

belief about falsity, concealment, and so forth.” Id.

However, CSX’s “systematically better treatment of

similarly situated employees” with other serious health

conditions – those with cancer, terminal illness, or in late

pregnancy – is circumstantial evidence that would allow a

jury to infer that CSX’s disciplinary action against Mr. Brown

was retaliation for taking FMLA leave on holidays. See Lewis,

934 F.3d at 1185 (explaining that a convincing mosaic can be

shown by, among other things, “systematically better

treatment of similarly situated employees”). As Mr. Brown

argues, “[c]ancer — unlike depression — does not flare up

around the holidays.” (Doc. # 180 at 18). Yet CSX

categorically did not bring disciplinary charges against

employees with cancer and other exempted medical conditions

who exhibited the same suspicious pattern of FMLA use as Mr.

Brown and employees with other serious health conditions.

(2018 Jolanda Johnson Depo. at 144:19-146:5). Exempting a

subset of employees with suspicious FMLA usage because they

had cancer or were pregnant is incompatible with CSX’s

purported aim of punishing dishonesty.

Furthermore, at Mr. Brown’s first disciplinary hearing,

Ms. Johnson did not dispute that Mr. Brown had a serious

health condition that could manifest at unforeseeable times.

(Doc. # 174-8 at 39:27-32). Ms. Johnson nevertheless

maintained that “it was clear that Mr. Brown misused FMLA by

using FMLA to avoid working over the Christmas holiday in

2017” merely because he had taken FMLA leave on certain days.

(Id. at 24:4-7, 30:35-45, 39:27-32). Ms. Anderson echoed this

position at the second hearing. (Doc. # 174-10 at 23:8-14).

Mr. Brown denied the charges, asserting that he only took

FMLA leave when he needed it. (Doc. # 174-8 at 47:25-34; Doc.

# 174-10 at 30:40-31:4, 32:18-24, 35:11-13). Viewing the

facts in the light most favorable to Mr. Brown and drawing

all reasonable inferences in his favor, a jury could

reasonably infer that CSX did not terminate Mr. Brown based

on its good faith belief that he dishonestly took FMLA leave

but rather that CSX retaliated against Mr. Brown for taking

FMLA leave on days when the company had high FMLA usage.

Accordingly, the Motion is denied as to the FMLA

retaliation claim.

C. FMLA Interference

As Mr. Brown “received all the FMLA leave he requested

and was terminated afterward for suspected fraud, . . . the

essence of [his] claim is retaliation, not interference.”

LaBelle v. Cleveland Cliffs, Inc., 784 F. App’x 437, 443 (6th

Cir. 2019); see Stallings v. Hussmann Corp., 447 F.3d 1041,

1051 (8th Cir. 2006) (finding that plaintiff’s FMLA claim was

“one of retaliation instead of interference” where the

employer granted all plaintiff’s requests for FMLA leave and

where plaintiff later was fired for fraudulently taking FMLA

leave); Parker, 2021 WL 3022703, at *22 (“Mr. Parker’s

interference theory is not really that CSX prohibited him

from taking FMLA leave but that CSX disciplined him for doing

so. Therefore, Mr. Parker’s FMLA interference claim is

‘essentially the same as’ and ‘is largely a clone of [his]

FMLA retaliation claim.’” (quoting Hawkins v. BBVA Compass

Bancshares, Inc., 613 F. App’x 831, 8441 (11th Cir. 2015)).

Thus, as the parties acknowledge (Doc. # 174 at 27-28;

Doc. # 180 at 20), Mr. Brown’s claim “is fundamentally a claim

for retaliation and should be analyzed as such.” Stallings,

447 F.3d at 1051. Because this claim is duplicative of the

existing retaliation claim, summary judgment is granted on

Count I.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

Defendant CSX Transportation, Inc.’s Motion for Summary

Judgment (Doc. # 174) is GRANTED in part and DENIED in part.

Summary judgment is granted in favor of CSX Transportation,

Inc., on Count I. The case will proceed to trial on Count II.

DONE and ORDERED in Chambers in Tampa, Florida, this

23rd day of January, 2026.

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

32