Shoemaker

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN SHOEMAKER, §

§

Plaintiff, §

§

VS. § Civil Action No. 3:25-CV-2558-D

§

MCKESSON CORPORATION, §

§

Defendant. §

MEMORANDUM OPINION

AND ORDER

In this action by plaintiff John Shoemaker (“Shoemaker”) against defendant

McKesson Corporation (“McKesson”) alleging retaliation, in violation of the Family and

Medical Leave Act of 1993 (“FMLA”), McKesson moves for summary judgment.

Concluding that a reasonable jury could find in Shoemaker’s favor on his retaliation claim,

the court denies the motion.

I

Shoemaker joined McKesson in October 2022, eventually becoming its Senior

Director of Business Enablement and Transformation.1 In this role, Shoemaker oversaw

operations in McKesson’s “contact center,” which is a support hub for its customers. In the

spring of 2024 McKesson began planning to restructure the contact center. John Garcia

1In recounting the factual background, the court summarizes the evidence in the light

most favorable to Shoemaker as the summary judgment nonmovant and draws all reasonable

inferences in his favor. See, e.g., Owens v. Mercedes-Benz USA, LLC, 541 F.Supp.2d 869,

870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l Ass’n v. Safeguard Ins.

Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).

(“Garcia”), a McKesson Senior Vice President who initially led this restructuring, anticipated

that it would require a reduction in existing personnel. Garcia needed additional skill sets

and hired Erica Tyler (“Tyler”) in November 2024 to serve as McKesson’s Vice President

of Contact Center Services and to lead the ongoing transformation. Tyler’s role was to

“evaluat[e] the positions in the contact center, determin[e] what work would continue, [and]

identif[y] what roles should be eliminated . . . .” D. Br. (ECF No. 19) at 5. Shoemaker

became her direct report.

Unfortunately for Shoemaker, Garcia and Tyler agreed to eliminate his position.2 The

timing and finality of this decision are in dispute. McKesson maintains that Tyler and Garcia

came to an agreement in December 2024 to terminate Shoemaker. The earliest documentary

evidence in the summary judgment record is a PowerPoint that identifies Shoemaker, among

several other redacted names, as holding “[r]ole[s] to be transitioned out.”3 D. App. (ECF

No. 20) at 143-44. It also describes the hiring of a “Transformation Lead,” which McKesson

asserts was a leadership position that would oversee the contact center’s transformation.

McKesson contends that this PowerPoint constituted the “final plan for the Contact Center

reorganization.” D. Br. (ECF No. 19) at 7.

The day after the PowerPoint was last modified (January 13, 2025), Shoemaker

2Shoemaker maintains that his role was not “eliminated” but that he was replaced

under the guise of an elimination. P. Resp. (ECF No. 22) at 16-17. The court need not resolve

this question to decide McKesson’s motion.

3The PowerPoint’s metadata are before the court and reflect that the PowerPoint was

last modified on January 13, 2025.

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contacted a McKesson Human Resources employee, Canden Privatsky (“Privatsky”), and

began a series of conversations about McKessons’ paternity leave policy. Shoemaker

expressly asked Privatsky to keep these conversations private due to complications with his

wife’s last pregnancy. Then, on February 17, 2025, Shoemaker discovered an organizational

chart that reflected changes to his role. He inquired with Tyler, who encouraged him to

apply for the planned Transformation Lead position. He did not. The following day—still

before Shoemaker had announced his planned paternity leave—Tyler created and sent a

“Business Case Questions” form that again reflected the elimination of Shoemaker’s role.

D. App. (ECF No. 20) at 96.

On March 3, 2025 Shoemaker formally notified Tyler about his wife’s pregnancy and

his intention to take paternity leave later that spring. According to McKesson, this was

Tyler’s first notice that Shoemaker intended to take paternity leave. McKesson maintains

that, contemporaneously, Tyler and Privatsky decided to notify Shoemaker of his termination

on April 11, 2025. McKesson does not specify a date for this decision, asserting only that

it occurred sometime in “early March.” D. App. (ECF No. 20) at 139.

On April 9, 2025 Shoemaker formally requested FMLA leave. Two days later, on

April 11, 2025, McKesson notified him of his upcoming termination. Two relevant events

occurred following Shoemaker’s termination notice: first, McKesson hired Deni Viggiano

(“Viggiano”) for the Transformation Lead role; and, second, the remaining employees

identified in the reduction in force (“RIF”) were terminated in July. The parties contest the

nature of Viggiano’s role, the later-fired employees’ roles, and how they both compare to

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Shoemaker’s position.

In sum, based on the summary judgment record, a reasonable jury could find the

following: McKesson had been considering eliminating Shoemaker’s position by December

2024 as part of a RIF; Shoemaker formally notified Tyler about his plan to take paternity

leave on March 3, 2025, while McKesson continued through February and March to

contemplate terminating Shoemaker; in early March, Tyler selected April 11 as the

termination notice date; Shoemaker requested FMLA leave on April 9, 2025 and received

the termination notice on April 11, 2025; and the remaining employees included in the RIF

were terminated in July.

McKesson moves for summary judgment on Shoemaker’s sole claim of FMLA

retaliation. Shoemaker opposes the motion, which the court is deciding on the briefs, without

oral argument.

II

When a summary judgment movant will not have the burden of proof on a claim at

trial, it can obtain summary judgment by pointing to the absence of evidence on any essential

element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

Once the moving party does so, the nonmovant must go beyond his pleadings and designate

specific facts to demonstrate that there is a genuine issue of material fact for trial. See id. at

324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam).

An issue is genuine if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

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nonmovant’s failure to produce proof as to any essential element renders all other facts

immaterial. TruGreen LandCare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007)

(Fitzwater, J.). Summary judgment is mandatory where the nonmovant fails to meet this

burden. Little, 37 F.3d at 1076.

III

Before turning to the merits of McKesson’s summary judgment motion, the court

considers certain objections and motions to strike that McKesson and Shoemaker make to

the other party’s summary judgment evidence. The court need only resolve objections that

pertain to summary judgment evidence that the court is relying on in making its decision.

All other objections and motions to strike are denied as moot.

A

McKesson objects to, and moves to strike, ¶ No. 18 of Shoemaker’s declaration,

contending that it is conclusory and not based on personal knowledge.

“[T]he contents of affidavits and declarations must . . . be based on personal

knowledge.” Kilmon v. Saulsbury Indus., Inc., 2017 WL 10729148, at *2 (W.D. Tex. Sept.

29, 2017). As a former employee of McKesson, Shoemaker has sufficient personal

knowledge to testify to his ongoing projects that remained active at the time of his

termination. And because Shoemaker prepared a transition plan for his role, there is “enough

factual support” to establish that he also had personal knowledge of the work that would be

transitioned. P. App. (ECF No. 23) at 128-29; Gahagan v. U.S. Citizenship & Immigr.

Servs., 147 F.Supp.3d 613, 621 (E.D. La. 2015). Accordingly, the court overrules

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McKesson’s objection to ¶ No. 18 of Shoemaker’s declaration.

B

Shoemaker objects to ¶¶ Nos. 9, 13, and 16 of Tyler’s declaration on the grounds that

they are conclusory and not based on personal knowledge. These paragraphs describe

Shoemaker’s and the other employees’ roles at McKesson and the scope of their duties. In

her position as Vice President of Contact Center Platforms and Services, Tyler has personal

knowledge of Shoemaker’s and the other employees’ positions. Therefore, Tyler can testify

as to whether Shoemaker’s duties had ended and whether his role differed from other

employees. See DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005) (“personal

knowledge and competence to testify are reasonably inferred” from a declarant’s position “in

the matters to which they swore.” (quotations omitted)). Accordingly, the court overrules

Shoemaker’s objections to ¶¶ Nos. 9, 13, and 16 of Tyler’s declaration.

C

Similarly, Shoemaker objects to ¶¶ Nos. 13 and 15 of Garcia’s declaration.

Garcia—as the Senior Vice President of McKesson Technology Acceleration & Contact

Center Services—has personal knowledge of Shoemaker’s and the other employees’ roles.

Therefore, the court overrules Shoemaker’s objections to ¶¶ Nos. 13 and 15 of Garcia’s

declaration.

D

Shoemaker objects to the business records attached to Tyler’s declaration, asserting

that they do not meet the standards of Fed. R. Evid. 803(6). The court disagrees. Tyler’s

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“qualified witness” testimony establishes that the exhibits were “made at or near the time by

. . . someone with knowledge[,]” “kept in the course of a regularly conducted activity[,]” as

“a regular practice of that activity[.]” Fed. R. Evid. 803(6). And Shoemaker has not shown

that “the source of information . . . indicate[s] a lack of trustworthiness.” Id. Therefore, the

court overrules Shoemaker’s objections to the business records attached to Tyler’s

declaration.

IV

The court now turns to the merits of Shoemaker’s FMLA claim.

Because Shoemaker relies on circumstantial evidence, his FMLA claim is properly

analyzed under the McDonnell Douglas burden shifting framework. See e.g., Hunt v.

Rapides Healthcare Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001) (“The Fifth Circuit applies

the McDonnell Douglas framework to analyze retaliation claims under the FMLA[.]”).

Under McDonnell Douglas, the plaintiff’s first burden is to establish a prima facie case of

retaliation. Id.

To establish a prima facie case for ... retaliation under the

FMLA, a plaintiff must demonstrate that [he] is protected under

the FMLA; [he] suffered an adverse employment decision; and

that [he] was treated less favorably than an employee who had

not requested leave under the FMLA or that the adverse decision

was made because of [his] request for leave.

Comeaux-Bisor v. YMCA of Greater Hous., 290 Fed. Appx. 722, 724-25 (5th Cir. 2008) (per

curiam) (citing Bocalbos v. Nat’l W. Life Ins. Co., 162 F.3d 379, 384 (5th Cir. 1998)).

“[O]nce an employee has established a prima facie case of retaliation, the burden shifts to the

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employer to articulate a legitimate, nondiscriminatory reason for the adverse employment

action.” Stroud v. BMC Software, Inc., 2008 WL 2325639, at *3 (5th Cir. June 6, 2008)

(FMLA case) (per curiam) (unpublished opinion). “If the employer succeeds in doing so, the

burden shifts back to the employee to show by a preponderance of the evidence that the

employer’s articulated reason is a pretext for [retaliation].” Richardson v. Monitronics Int’l,

Inc., 434 F.3d 327, 332-33 (5th Cir. 2005).

The McDonell-Douglas framework is slightly altered when, as here, the plaintiff

alleges that retaliation “was a motivating factor in [his] termination,” although not the only

factor. See Richardson. 434 F.3d at 333; P. Resp. (ECF No. 22) at 15, 20 (quoting the

“mixed motive analysis” and stating that “a reasonable jury could find that Shoemaker’s

FMLA request motivated the termination or its timing . . . ”). In these cases, the first two

steps are unchanged. Richardson. 434 F.3d at 333. But at the third step, Shoemaker can

survive summary judgment either by (1) showing that McKesson’s “proffered reason is a

pretext for” retaliation, or (2) showing “that the employer’s reason, although true, is but one

of the reasons for its conduct, another of which was discrimination.” Id. If the employee

demonstrates at the third step that retaliation was a motivating factor, “the burden again shifts

to the employer, this time to prove that it would have taken the same action despite the

[retaliatory] animus.” Id.

V

The court considers first whether Shoemaker has established a prima facie case of

retaliation under the FMLA.

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A

To establish his prima facie case, Shoemaker must demonstrate that (1) he “engaged

in protected activity, (2) an adverse employment action occurred, and (3) a causal link

existed between the protected activity and the adverse employment action.” DeVoss v. Sw.

Airlines Co., 2017 WL 5256806, at *7 (N.D. Tex. Nov. 13, 2017) (Fitzwater, J.), aff’d, 903

F.3d 487 (5th Cir. 2018).

B

The parties do not dispute the first two elements.

C

As to causation, the “initial requirement that a plaintiff show a ‘causal link’ is less

stringent than the ‘but for’ causation that a jury must find.” Khanna v. Park Place Motorcars

of Hous., Ltd., 2000 WL 1801850, at *4 (N.D. Tex. Dec. 6, 2000) (Fitzwater, J.) (citing Long

v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996)). Shoemaker is only required to show

that “the protected activity and the adverse employment action are not completely unrelated.”

Mauder v. Metro. Transit Auth. of Harris Cnty., Tex., 446 F.3d 574, 583 (5th Cir. 2006).

This is a “minimal” burden. Khanna, 2000 WL 1801850, at *4.

“Close timing between an employee’s protected activity and an adverse action against

him may provide the causal connection required to make out a prima facie case of

retaliation.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (quotations

omitted). Many cases turn on the timing between the protected conduct and the adverse

employment action. See, e.g., Johnson v. Epsilon Data Mgmt., LLC, 2024 WL 5240151, at

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*8 (N.D. Tex. Dec. 27, 2024) (Fitzwater, J.) (holding that a “temporal proximity” of “fewer

than three months” satisfied the “causation element” of the prima facie case) (Title VII case)

and Martin v. Penske Logistics, LLC, 736 F.Supp.3d 437, 455-56 (N.D. Tex. 2024) (Boyle,

J.) (holding that “approximately one month” was sufficient to establish a causal connection).

Shoemaker submitted his formal request for FMLA leave on April 9, 2025. Tyler and

Privatsky met with him just two days later to give him notice of his termination. This “close

timing” between the “protected activity and an adverse action” satisfies the “minimal”

burden to show causation. See Khanna, 2000 WL 1801850, at *4 (quotations omitted).4

McKesson contends, however, that Shoemaker cannot satisfy the causation element

because causation cannot exist when a defendant takes an adverse employment action

without knowledge of the protected conduct. See, e.g., Williams v. Sterling Healthcare

Servs., Inc., 193 Fed. Appx. 328, 331 (5th Cir. 2006) (per curiam). McKesson maintains that

Shoemaker had not engaged in FMLA protected conduct when McKesson made the decision

to terminate him.

Shoemaker has not established prima facie causation as to McKesson’s initial decision

to terminate him as part of the RIF. The record shows that McKesson decided to terminate

Shoemaker as part of a normal business restructuring that was planned well before

4The burden is met even when evaluating the “early March” date that McKesson

asserts was when Tyler chose the April 11, 2025 termination notice date. One month is well

within the temporal proximity required to establish prima facie causation. Martin, 736

F.Supp.3d at 455-56. Furthermore, because the decision occurred in “early March,” an even

shorter time elapsed after Shoemaker’s formal notice.

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Shoemaker put Tyler and Garcia on notice of his intent to take paternity leave.5 And

Shoemaker has not introduced sufficient evidence for a reasonable jury to find that

McKesson’s decision to terminate him in the RIF was not finalized by March 3, 2025, the

notice date.6 Therefore, no reasonable jury could find a “causal link” between the FMLA

leave request and the general decision to terminate Shoemaker as part of the RIF. See

Khanna, 2000 WL 1801850, at *4.

But the analysis is different for the April 11, 2025 date. McKesson maintains that

Tyler had also chosen the April 11, 2025 date before McKesson was aware of Shoemaker’s

protected conduct, sometime in “early March.” D. Br. (ECF No. 19) at 9. But this imprecise

assertion only creates an issue of material fact regarding whether Tyler made the decision

before she received notice on March 3, 2025. Similarly, McKesson also avers that “by mid-

January 2025, Tyler and Garcia decided to eliminate Shoemaker’s role first.” D. Br. (ECF

No. 19) at 15-16. But the timing of when Tyler and Garcia reached this decision (rather than

5Shoemaker seems to contest that his discussions with Privatsky imputed knowledge

of his planned leave to Tyler and Garcia. But he has not introduced any non-speculative

evidence that Privatsky (despite his request otherwise) informed Tyler and Garcia of his

planned paternity leave. And Tyler’s unrefuted declaration shows the opposite; Privatsky

“did not tell me . . . before Mr. Shoemaker shared the news himself.” D. App. (ECF No. 20)

at 139.

6Tyler and Garcia both testified that the decision to terminate Shoemaker was made

in late 2024. The PowerPoint and the Question Form also confirm this testimony. In

response, Shoemaker attempts to cast doubt by asserting that more evidence of his

termination should exist according to McKesson’s internal procedures. This is insufficient.

Shoemaker must at least create an issue of fact, not point out that McKesson could have

introduced more evidence. See Little, 37 F.3d at 1075.

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why) is not supported in the cited depositions nor in the Tyler or Garcia declaration. And,

even if it were, it does not establish exactly when that early termination would be, only that

it would be earlier than the other employees. This leaves the possibility that, although

earlier, Shoemaker’s notice of termination was still accelerated to April 11, 2025 because of

his FMLA leave.7

The foregoing demonstrates that there is at least a genuine issue of material fact

regarding whether “[McKesson] had knowledge of the protected activity” when it chose the

April 11, 2025 date, as is required to establish causation. Standley v. Rogers, 202 F.Supp.3d

655, 667 (W.D. Tex. 2016). Therefore, focusing on April 11, the court holds that Shoemaker

has introduced sufficient evidence to establish that “the protected activity and the adverse

employment action are not completely unrelated.” Mauder v. Metro. Transit Auth. of Harris

Cnty., Tex., 446 F.3d 574, 583 (5th Cir. 2006). Shoemaker has satisfied his initial burden to

7Acceleration of a pre-determined termination can be a separate act of retaliation.

Russo v. N.H. Neurospine Inst., P.A., 2026 WL 2491680, at *11 (1st Cir. Aug. 25, 2026)

(unpublished opinion) (holding that “accelerat[ing]” a “termination” constituted an adverse

employment action); Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1268 (11th Cir. 2010)

(holding that an adverse action existed when a plaintiff was fired “sooner than she otherwise

would have been” because of her protected conduct); Lee v. W. Va. Univ. Med. Corp., 181

F.4th 424, 438 (4th Cir. 2026) (same). This view has been applied in district courts in the

Fifth Circuit. See Penders v. Saint Edward’s Univ., Inc., 2024 WL 4744060, at *12 (W.D.

Tex. Mar. 18, 2024) (holding that being “terminated immediately” instead of a planned later

date can be the locus for the prima facie causation analysis); Allain v. Bd. of Supervisors of

Univ. of La. Sys., 81 F.Supp.3d 502, 511-12 (W.D. La. 2015) (holding that causation was

established even though defendant “had decided to terminate” the plaintiff before she took

FMLA leave because the defendant “did not in fact terminate her at that time.”) (FMLA

case). In essence, “planning to terminate an employee and then carrying out the termination

are different things.” D’Agostino v. Kendall, 2021 WL 4860095, at *11 (D.N.J. Oct. 19,

2021).

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establish a prima facie case of retaliation under the FMLA.

VI

Because Shoemaker has established a prima facie case of retaliation, the burden now

shifts to McKesson to articulate a legitimate, nonretaliatory reason for Shoemaker’s

termination on April 11, 2025. Esparza v. Bank of Am., N.A., 2013 WL 5208024, at *8 (N.D.

Tex. Sept. 17, 2013) (Fitzwater, J.). McKesson must “clearly set forth, through the

introduction of admissible evidence, reasons for its actions which, if believed by the trier of

fact, would support a finding that unlawful discrimination was not the cause of the

employment action.” Jackson v. Fed. Exp. Corp., 2006 WL 680471, at *5 (N.D. Tex. Mar.

14, 2006) (Fitzwater, J.) (citation omitted). This burden is “one of production, not proof, and

involves no credibility assessments.” Id. (citation omitted).

McKesson has met its burden of production to establish a nonretaliatory reason for

notifying Shoemaker of his termination on April 11, 2025. In essence, McKesson maintains

that Shoemaker was terminated earlier than the other employees because the nature of his

role was different, in that “his responsibilities either had ended, had a limited lifecycle, or

were not going to continue in the same form” and that his salary was required to “budget for

the new Transformation Lead role.” D. Br. (ECF No. 19) at 15-16; D. App. (ECF No. 20)

at 91. The court holds that McKesson has introduced sufficient evidence to support the

finding that “unlawful discrimination was not the cause of the employment action.” Jackson,

2006 WL 680471 at *5.

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VII

Because McKesson has met its burden to produce evidence of a nonretaliatory reason

for Shoemaker’s early termination on April 11, the burden shifts back to Shoemaker to show

that “the employer’s proffered reason is a pretext for [retaliation], or . . . that the employer’s

reason, although true, is but one of the reasons for its conduct, another of which was

[retaliation.]” Richardson, 434 F.3d at 333. At the summary judgment stage, Shoemaker

need only raise a genuine issue of material fact. See, e.g., Jackson, 2006 WL 680471, at *6

(“Because [defendant] has satisfied its burden to produce a legitimate, nondiscriminatory

reason for [plaintiff’s] discharge, in order for [plaintiff] to survive summary judgment, he

must create a genuine and material fact issue regarding the ultimate question of

discrimination.”). Because Shoemaker relies on the traditional pretext framework and the

mixed-motive analysis, the court will consider them together.

“[T]emporal proximity alone is insufficient” to show pretext or a mixed motive.

Strong v. Univ. Healthcare Sys., LLC,482 F.3d 802, 808 (5th Cir. 2007). Therefore, for

plaintiffs to meet their burden, they must couple evidence of temporal proximity with proof

of an additional factor that evinces a retaliatory motive. Robles v. Eminent Med. Ctr., LLC,

619 F.Supp.3d 609, 632 (N.D. Tex. 2022) (Lindsay, J.) (holding that temporal proximity and

defendant’s hostile remarks were sufficient to show motivating factor); Allain v. Bd. of

Supervisors of Univ. of La. Sys., 81 F.Supp.3d 502, 513 (W.D. La. 2015) (holding that

temporal proximity and inconsistencies in defendant’s evidence were sufficient to show

pretext and mixed motive); White v. Premium Velocity Auto LLC, 2026 WL 571212, at *7

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(N.D. Tex. Mar. 2, 2026) (Boyle, J.) (holding that temporal proximity and defendant’s

documented skepticism of plaintiff’s FMLA basis were sufficient to show pretext); Khanna,

2000 WL 1801850, at *4 (holding that temporal proximity and apparent incongruities in

defendant’s case were sufficient to show pretext); and see Watkins v. Tregre, 997 F.3d 275,

285-86 (holding that the “[w]hen combined with [defendant’s] discredited reason . . . the

near-immediate temporal proximity of the discharge to the protected activity leaves us with

no room to doubt” that the plaintiff survives summary judgment).

Shoemaker advances several reasons to support the conclusion that McKesson’s

justifications are pretextual or are mixed with a retaliatory motive.8 The court need only

consider two: the “suspicious” temporal proximity and McKesson’s choice to “terminate

Shoemaker [after taking FMLA leave] before anyone else in the purported RIF.” P. Resp.

(ECF No. 22) at 15-16.

There is no doubt that the present temporal proximity strongly shows retaliation.9

Watkins, 997 F.3d at 285-86. But because this is “insufficient alone,” Shoemaker must create

an issue of fact that he otherwise belonged in the July RIF, thereby showing that the FMLA

leave influenced his earlier firing. Strong, 482 F.3d at 808. In the court’s analysis of pretext

and mixed motive, Shoemaker’s position that he was similar to the July RIF employees

8Shoemaker also draws the court’s attention to the Transformation Lead role and

whether he or Viggiano was more qualified. Viggiano’s role is only relevant to the extent

that she worked on Shoemaker’s continuing responsibilities or active projects.

9This is true regardless whether the April 11 date was actually chosen in early March

because of its proximity to Shoemaker’s formal notice on March 3, 2025.

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affects both: it shows that McKesson’s reason for his early firing is pretextual and it

advances independent evidence of a retaliatory motive.10

The parties contest the nature of Shoemaker’s role and the roles of the employees

terminated in July. D. Br. (ECF No. 19) at 16-18; P. Resp. (ECF No. 22) at 16-17.

McKesson contends that Shoemaker’s “responsibilities either had ended, had a limited

lifecycle, or were not going to continue in the same form.” D. Br. (ECF No. 19) at 16; D.

App. (ECF No. 20) at 91, 134, 138. Therefore, McKesson decided to terminate him first.

Id. In contrast, Shoemaker asserts that “substantial work for which [he] was responsible

remained active” and that he created a transition plan for his responsibilities. P. App. (ECF

No. 23) at 128.11 Shoemaker’s assertions are buttressed in several aspects. Marsh, a

McKesson employee who worked closely with Shoemaker, testified that Shoemaker’s “job

functions did not cease” when he was terminated. P. App. (ECF No. 23) at 107, 110

(testifying that Viggiano “stepped into [Shoemaker’s] shoes . . . ”). Indeed, Marsh, Tyler,

and then an outside firm took over Shoemaker’s responsibilities. But aside from Marsh,

10Shoemaker’s similarity to the July RIF employees evinces retaliation because it

shows that McKesson had an original plan for his termination (July) that was then

accelerated due to the FMLA leave. The court construes this differently from a disparate

treatment argument, where a plaintiff complains that he was nearly identical to a person who

was treated differently. See, e.g., Kiel v. Tex. Parks & Wildlife Dep't, 2016 WL 7616532,

at *2 (W.D. Tex. June 16, 2016).

11“This included recurring meeting series, contact-center strategy and transformation

work, CCaaS and workforce-management requests for proposals, onboarding of business

units and program participants, project requests, vendor matters, stakeholder

communications, and communities of practice.” P. App. (ECF No. 23) at 128.

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Tyler testified that a portion of Shoemaker’s work was transitioned to Viggiano and others.12

The credibility of Marsh, Shoemaker, Tyler, and Garcia, or the weight of their

testimony, is not for the court to decide. Servicios Comerciales Lamosa, S.A. de C.V. v. De

la Rosa, 328 F.Supp.3d 598, 610 (N.D. Tex. 2018) (Lindsay, J.). Therefore, the dispute

about Shoemaker’s role creates an issue of material fact regarding whether Shoemaker’s

“responsibilities either had ended, had a limited lifecycle, or were not going to continue in

the same form,” so as to justify the early termination. D. Br. (ECF No. 19) at 16; Little, 37

F.3d at 1075.

As to the other employees, McKesson asserts that, unlike Shoemaker, their

responsibilities continued until their termination date. Taking this as true, and based on the

dispute regarding Shoemaker’s role, the court holds that Shoemaker has created a genuine

issue of material fact regarding whether his role was in fact distinguishable from the others

so as to justify exclusion from the July RIF.

Therefore, Shoemaker has created a genuine issue of material fact concerning whether

McKesson’s reasons are pretextual or whether a motivating factor for his termination was

his decision to take FMLA leave. “[V]iewing all of the evidence in its totality and in the

light most favorable” to Shoemaker, “the near-immediate temporal proximity” of the

termination, coupled with the factual dispute regarding the reasons for Shoemaker’s

exclusion from the July RIF, leave the court “with no room to doubt that” Shoemaker has met

12The witnesses disagree on the portion of Marsh’s work that continued, but that

difference is not for the court to resolve at summary judgment.

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his burden. Watkins, 997 F.3d at 285-86 (overturning summary judgment).

VII

Finally, under the mixed motive analysis, McKesson must show “that it would have

taken the same action despite the [retaliatory] animus.” Richardson, 434 F.3d at 333.

There is a genuine issue of material fact concerning whether the basis for Shoemaker’s

exclusion from the July RIF was actually due to the nature of his role as compared to the

other RIF employees. See supra § VIL. It is for the trier of fact, not the court, to weigh the

credibility of the witnesses and determine the true basis for his termination. Therefore, the

court denies McKesson’s motion for summary judgment on Shoemaker’s retaliation claim.

* * *

For the reasons explained, the court denies McKesson’s motion for summary

judgment.

SO ORDERED.

September 9, 2026.

SENIOR JUDGE

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