# Opinion

> District Court, M.D. Florida · January 23, 2026

URL: https://www.frixlaw.com/law-library/cases/11266755

## Case

- **Full name:** Andrew Brown v. CSX Transportation, Inc.
- **Court:** District Court, M.D. Florida
- **Decided:** January 23, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11266755

## How later opinions describe it (automated extraction)

- 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
- holding that misuse of FMLA leave is a non-retaliatory basis for dismissal
- explaining that a convincing mosaic can be shown by, among other things, “systematically better treatment of similarly situated employees”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11266755. Public record. Not legal advice.