“As anyone who has ever worked in an office environment can attest, there are real deadlines and hortatory ones—and everyone understands the difference between the two.”
How later courts described this case
- “As anyone who has ever worked in an office environment can attest, there are real deadlines and hortatory ones—and everyone understands the difference between the two.”
Written by the judges who cited it.
The opinion
Case: 20-30289 Document: 00515979904 Page: 1 Date Filed: 08/16/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 16, 2021
No. 20-30289
Lyle W. Cayce
Clerk
Leisha Lindsey,
Plaintiff—Appellant,
versus
Bio-Medical Applications of Louisiana, L.L.C., incorrectly
named as Fresenius Medical Care Louisiana Dialysis
Group L.L.C.,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:18-CV-680
Before Ho, Oldham, and Wilson, Circuit Judges.
James C. Ho, Circuit Judge:*
The Family and Medical Leave Act (“FMLA”) not only entitles
eligible workers to take unpaid, job-protected leave for certain specified
family and medical reasons. 29 U.S.C. § 2615(a)(1). It also protects workers
*
Judge Oldham concurs in the judgment only.
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from discriminatory retaliation from their employers in the event they choose
to take FMLA leave. Id. § 2615(a)(2).
Leisha Lindsey presented prima facie evidence that, after 17 years of
dutiful service, her employer, Bio-Medical Applications of Louisiana
(“BMA”), terminated her because she was compelled to take FMLA leave
in response to a series of personal tragedies. BMA claims she was fired for
poor attendance. But employment records suggest BMA offered attendance
issues as a post hoc rationalization to justify her firing. BMA also claims she
was fired due to a series of missed deadlines. But summary judgment
evidence suggests these were hortatory rather than mandatory deadlines, and
that she was never informed that failure to meet these deadlines could result
in discipline of any kind, let alone termination.
We therefore hold that the district court erred in granting summary
judgment to BMA on her FMLA discriminatory retaliation claim. But we
agree that her remaining claims do not survive summary judgment.
Accordingly, we affirm in part and reverse in part and remand for further
proceedings.
I.
Leisha Lindsey began working for BMA in January 1999 as a staff
registered nurse and rose through the ranks over the next 17 years. She
earned two promotions within four years, rising to the position of Director of
Nursing at BMA’s clinic in Bunkie, Louisiana. She became Clinic Manager
in 2008, a position she held until BMA terminated her in August 2017.
By all accounts, Lindsey was a stand-out employee for nearly her
entire tenure. Her supervisor, David Powe, described her as a “really good
clinic manager.” She received either a “meets standards” or a
“commendable” rating on each of her performance evaluations through
2015.
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But things changed after a series of personal tragedies forced her to
take FMLA leave in 2016.
Lindsey experienced a fire in her home on July 5. She took one week
of leave as a result. Then her son was hospitalized, prompting her to extend
her leave for another month.
BMA approved Lindsey’s leave under the FMLA through August 15.
Even so, she voluntarily continued to perform some of her job responsibilities
while on leave, and she told her team that she would “still be available to all
of you by text or phone if anyone needs anything.” She also communicated
at irregular intervals with Powe and other colleagues via email and text about
various work-related issues.
On August 31, two weeks after Lindsey returned to work, she attended
a meeting with Powe and a coworker named Cecelia Robinson. During that
meeting, Robinson suggested that BMA could “distribut[e] medication that
came in for deceased patients to other patients.” Lindsey objected, stating
that “we’re not going to do that here,” and later followed up with an email
to Powe on September 2 explaining why she believed Robinson’s proposal
was both illegal and unethical. Powe read the email that morning.
Later that same day, Powe prepared a “Corrective Action Form,”
claiming that he had received reports from other employees that Lindsey
“wasn’t at work” before she took leave several months earlier. He issued
the disciplinary form to her the following week.
This was the first disciplinary action that Lindsey had ever received in
her 17 years of service with BMA. The form stated that Lindsey “ha[d] not
been consistently present . . . at the facility during normal hours,” and that
this was “affecting the moral [sic] and operations of the facility.” It did not
list specific dates or times of her purported absences, however, and Powe was
unable to recall them later.
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Powe reevaluated Lindsey’s attendance a few weeks later and
determined that she was improving. Nevertheless, he issued a second
Corrective Action Form on January 30, 2017, that upgraded BMA’s
disciplinary action to a “Final Written Warning.” Powe explained that he
issued the form because Lindsey’s attendance “was going back to where it
was.” Unlike the first disciplinary form, however, this warning cited three
specific incidents of Lindsey’s absenteeism. The first occurred on
September 28, 2016, when Powe was unable to reach Lindsey by text message
because “she had come in at 10:20 AM” and “had left her phone on her
desk” while she was “in the front.” The second occurred on January 11,
2017, when Lindsey advised her secretary that she would be out sick but
neglected to inform Powe directly. The third occurred on January 16, 2017,
when some BMA employees texted Powe that they had been unable to locate
Lindsey that morning. Lindsey objected to both disciplinary forms and
refused to sign them.
Lindsey repeated her objections in a February 1 email to Powe and a
February 6 email to Powe’s supervisor, Carol Dark. Lindsey’s email to Dark
complained that she “believed she was being written up as part of her
returning from leave of absence.” Dark discussed the email with Powe, but
it is unclear whether she reported Lindsey’s complaint to HR. Lindsey
claimed that Dark never investigated the complaint and remained “clueless
as to facts as they truly are.” Lindsey then began clocking in and out of work
to “prov[e] to [Powe and everyone] else” that she was attending work. Powe
asked her to stop because Lindsey was an exempt employee and “[e]xempt
people don’t clock in and out.”
On March 21, 2017, Lindsey received a performance evaluation signed
by Powe and Dark with an overall rating of “needs improvement.” She had
never received a rating that low in her then-18 years with BMA. The
evaluation noted that Lindsey “had some issues of not meeting management
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expectations of being present at the facility during normal operating hours.”
But it also noted that Lindsey “made improvements in 2017” and that
“[s]taff morale ha[d] also improved.”
Also in early 2017, a government contractor named Network 13
consulted with BMA about participating in a “catheter tracking” project.
Lindsey was asked to help with the project and to submit a monthly tracking
report to Lynda Ball, Network 13’s Quality Improvement Director, by the
fifth day of each month. Lindsey understood the fifth to be merely a
suggested date and regularly submitted her report after the fifth of each
month. Ball sent Lindsey email reminders asking for the monthly report on
March 8, May 8, June 5, and July 7, 2017. Ball sent a follow-up email on July
12, copying Dianne Garrand, BMA’s Vice President of Quality. Garrand and
Powe attempted to reach Lindsey on July 13 but were unsuccessful. Lindsey
later attributed this to her attendance at a manager training meeting, a
contention that Powe disputed.
Powe then met with Dark and BMA’s HR officer to discuss the July
13 incident and Lindsey’s future employment. They all agreed that Lindsey
should be terminated. So Powe prepared a termination form and issued it to
Lindsey on August 1, 2017. The form referenced Lindsey’s prior warnings
for “Work Attendance” and explained that Lindsey “ha[d] not [met]
expectations outlined in [those] warning[s] as to being present at the facility
during normal work hours.” It also mentioned Powe’s inability to reach
Lindsey on July 13 and the fact that Lindsey “ha[d] been late with [her
catheter tracking report] almost every month since the project started.”
Lindsey wrote on the form that “[t]his is bogus and has been the ploy from
the beginning. I do not agree with anything on this.”
Lindsey sued BMA in the United States District Court for the
Western District of Louisiana. She brought four claims—two under the
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FMLA for interfering with her leave and retaliating against her for taking
leave, one for a violation of Louisiana’s whistleblower statute, and one for
intentional infliction of emotional distress.
BMA filed a motion for summary judgment on all claims, which the
district court granted. Lindsey timely appealed all dismissed claims except
her state law claim for intentional infliction of emotional distress. (She also
appeals the district court’s refusal to consider her sworn declaration on the
ground that the substance of her declaration should have been argued in brief,
and that her brief was already at the maximum page limit established under
Local Rules. We need not consider this challenge because the remainder of
the record provides sufficient evidence for us to address her claims.)
We review a district court’s grant of summary judgment de novo.
Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019). “We ask whether the
movant has shown ‘that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.’” United States ex
rel. Drummond v. BestCare Lab’y Servs., L.L.C., 950 F.3d 277, 280 (5th Cir.
2020) (quoting Fed. R. Civ. P. 56(a)). A genuine dispute exists “when
the evidence is such that a reasonable jury could return a verdict for the non-
movant” after taking the facts “in the light most favorable” to her. Davis-
Lynch, Inc. v. Moreno, 667 F.3d 539, 549–50 (5th Cir. 2012) (quotation
omitted).
II.
On appeal, Lindsey contends that the district court erred in granting
summary judgment on her FMLA interference claim, her FMLA
discriminatory retaliation claim, and her claim under the Louisiana
whistleblower statute. We address each in turn, concluding that the district
court erred with respect to her claim for discriminatory retaliation under the
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FMLA, but properly granted summary judgment on her FMLA interference
claim and her Louisiana whistleblower claim.
A.
Lindsey alleges that BMA pressured her to work while she was on
leave, and thereby interfered with her rights under the FMLA.
The FMLA makes it “unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise” an employee’s
rights under the FMLA. 29 U.S.C. § 2615(a)(1). We have interpreted this
provision to impose liability on the employer if “(1) [the plaintiff] was an
eligible employee; (2) [her] employer was subject to FMLA requirements;
(3) [s]he was entitled to leave; (4) [s]he gave proper notice of [her] intention
to take FMLA leave; and (5) [her] employer denied [her] the benefits to
which [s]he was entitled under the FMLA.” Caldwell v. KHOU-TV, 850
F.3d 237, 245 (5th Cir. 2017). One FMLA benefit to which employees are
entitled is “12 workweeks of leave during any 12-month period” due to
certain qualifying conditions such as a serious health condition of a child. 29
U.S.C. § 2612(a)(1).
“Giving employees the option to work while on leave does not
constitute interference” with that benefit. D’Onofrio v. Vacation Publ’ns,
Inc., 888 F.3d 197, 210 (5th Cir. 2018). But coercing an employee to work
while on leave by making the work “a condition of continued employment”
would constitute impermissible interference. Id.
The district court granted summary judgment to BMA on Lindsey’s
FMLA interference claim after concluding that Lindsey “fail[ed] to state a
single manner in which she was prejudiced” by BMA’s conduct while she
was on leave.
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Lindsey contends that the district court would have come to a
different conclusion had it considered statements in her sworn declaration
describing the pressure she felt to work. For example, her declaration states
that she “believed that [she] was required to perform [certain] job duties as
no one was assigned” to them while she was on leave and that “Powe and
other [BMA] employees remained in contact with [her] by telephone and
email.”
But even if we were to consider Lindsey’s declaration, it does not help
her for two reasons. First, it has long been the rule that “a party [may not]
defeat a motion for summary judgment using an affidavit that impeaches,
without explanation, sworn testimony.” S.W.S. Erectors, Inc. v. Infax, Inc.,
72 F.3d 489, 495 (5th Cir. 1996). Lindsey’s deposition testimony squarely
contradicts her assertion that BMA “required” her to continue working. In
fact, the record indicates that the work she did while on leave was voluntary.
Lindsey testified that she was unable to access her company email
account and other internal systems while she was away. She also testified
that she “just took care of” her responsibilities without any of her
supervisors asking her to. This testimony aligns with Powe’s statements
during his deposition that he only contacted Lindsey during her leave when
he “was looking for something” like forms or other materials in her office.
Furthermore, Lindsey admitted that she “notified her team that she was
going to be on a leave of absence” and told the team she would “still be
available to all of you by text or phone if anyone needs anything. If not
immediately, just leave me a message and I’ll get back to you as soon as
possible.”
Second, the statements in her declaration would not be sufficient in
any event. The coercion theory on which Lindsey relies requires her to
demonstrate that BMA made working on leave a “condition of continued
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employment,” or that BMA threatened her with an adverse consequence.
See D’Onofrio, 888 F.3d at 210. But she points to no such evidence, either in
her declaration or elsewhere in the record. All she can muster is a “belie[f]
that [she] was required to perform [her] job duties” based on the fact that
“no one [else] was assigned to perform the[m].” None of this demonstrates
that BMA ever required Lindsey to perform her job duties while she was on
leave as a condition of continued employment.
We therefore affirm the entry of summary judgment on Lindsey’s
FMLA interference claim.
B.
Lindsey also alleges that BMA retaliated against her when she
returned to work from her FMLA leave. She asserts that her decision to take
leave was a determinative factor in BMA’s decision to fire her.
The FMLA creates a cause of action for retaliatory discharge. See
Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005) (citing
29 U.S.C. § 2615(a)(2)). The prima facie elements of this cause of action are
(1) the employee “engaged in a protected activity” under the FMLA, (2)
“the employer discharged” the employee, and (3) a “causal link [exists]
between the protected activity and the discharge.” Id.
Plaintiffs who establish a prima facie case are entitled to a
“presumption that the employer unlawfully discriminated against” them.
Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254 & n.7 (1981). But
where the employee fails to provide “direct evidence of discriminatory
intent,” the employer can rebut the presumption of discrimination by
“articulat[ing] a legitimate, nondiscriminatory reason for the adverse
employment action.” Richardson, 434 F.3d at 332. This does not require the
employer to “persuade the court that it was actually motivated by the
proffered reasons.” Burdine, 450 U.S. at 254. “It is sufficient if the
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defendant[] . . . clearly set[s] forth, through the introduction of admissible
evidence, the reasons for the plaintiff’s rejection.” Id. at 254–55.
If both the employee and the employer meet their initial burdens, “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
discrimination.” Richardson, 434 F.3d at 332–33.
Neither Lindsey nor BMA object to the district court’s holdings that
(1) Lindsey established a prima facie FMLA retaliation case and (2) BMA
articulated two nondiscriminatory reasons for its termination decision—
Lindsey’s attendance issues and her late Network 13 reports.
But the parties dispute the district court’s analysis of Lindsey’s claim
of pretext. The district court agreed with Lindsey that BMA’s attendance
reason was pretextual. But the district court concluded that she failed to
show how BMA’s reliance on the missed deadlines was pretextual.
Lindsey and BMA disagree over which legal standard governs this
analysis. They dispute whether the district court was right to apply a “but-
for” causation standard, which would require Lindsey to demonstrate that
both of BMA’s asserted reasons were pretextual, Machinchick v PB Power, Inc.,
398 F.3d 345, 351 (5th Cir. 2005), overruled on other grounds by Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167 (2009)—or whether the district court should
have applied a “mixed-motive” framework, which would require her to
demonstrate only that one of BMA’s reasons was pretextual, Richardson, 434
F.3d at 333.
In our circuit, “it is unclear whether a mixed-motive causation
standard is ever proper for FMLA retaliation claims.” Adams v. Mem’l
Hermann, 973 F.3d 343, 353 (5th Cir. 2020). We have recognized that two
Supreme Court cases suggest it might not be. Id. at 352 (citing Gross, 557
U.S. at 129, and Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)).
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See also Ion v. Chevron USA, Inc., 731 F.3d 379, 389–90 & n.11 (5th Cir. 2013)
(noting that Gross and Nassar “limited the applicability of the mixed-motive
framework” in other employment discrimination statutes but leaving the
question of their effect on FMLA claims “for another day”).
But we ultimately need not resolve this question here, because we find
that there is a genuine issue of material fact as to whether both of BMA’s
asserted reasons for Lindsey’s termination were in fact pretextual. The
parties agreed during oral argument that the court need not determine which
framework applies in the event we find both of BMA’s proffered reasons to
be pretextual.
To begin with, we agree with the district court that Lindsey produced
enough evidence for a factfinder to conclude that BMA’s attendance-based
justification was pretextual. A justification is pretextual when it is
“unworthy of credence”—i.e., when it “is not the real reason for the adverse
employment action.” Watkins v. Tregre, 997 F.3d 275, 284 (5th Cir. 2021)
(quotation omitted). “[A]ny evidence” that casts doubt on BMA’s assertion
is in play, and a fact dispute exists so long as Lindsey’s evidence “is of such
quality and weight that reasonable and fair-minded men in the exercise of
impartial judgment might reach different conclusions.” Id. at 283–84
(emphasis omitted) (quotations omitted).
Several pieces of evidence suggest that Lindsey’s purported
attendance problems were not the “real reason” for her termination. First,
“Lindsey received her first ever disciplinary action” in more than 17 years of
working for BMA “within three weeks of returning from FMLA leave.”
Second, Lindsey’s initial Corrective Action Form failed to list a single date
that she was absent, even though the form had a portion labeled “Date(s) of
incident/occurrence.” Third, David Powe, the supervisor who prepared
Lindsey’s Corrective Action Form, testified that he could not identify the
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days or hours that Lindsey did not show up to work. Fourth, Lindsey’s
second Corrective Action Form listed only three incidents—one of which
took place during a time period when Powe testified that Lindsey’s
attendance was improving, and another of which occurred while she was sick.
Finally, Lindsey’s termination form listed a single date that management was
unable to reach her, which Lindsey testified was because she was away at a
training meeting. As the district court correctly concluded, this record
evidence creates a fact issue as to whether BMA’s attendance rationale is
“unworthy of credence” and whether BMA discriminated against Lindsey
as a result. BMA does not contend otherwise.
Turning to BMA’s assertion that Lindsey was fired because she failed
to complete the catheter reports on time, there is some evidence that
Lindsey’s late reports may have contributed to BMA’s decision. The
company’s termination form expressly mentions the reports. And Powe
testified that he started considering Lindsey’s termination around July 13—
the day after Network 13’s Quality Improvement Director contacted BMA’s
Vice President of Quality about Lindsey’s late report.
But there is also evidence indicating that BMA wouldn’t have fired
Lindsey for the missed deadlines alone. Before concluding that “Leisha
Lindsey’s employment is terminated,” her termination form notes that
Lindsey “has not [met] expectations outlined in previous warnings as to
being present at the facility during normal work hours.” Likewise, her first
Corrective Action Form stated that “[f]ailure to meet [attendance-based]
expectations will result in further corrective action, up to and including
termination of employment.” Additionally, Powe later testified that the
“main point” of his complaint was that Lindsey “was not coming to work.”
But as we and the district court have concluded, there is a fact dispute as to
whether BMA’s attendance rationale is pretextual.
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What’s more, BMA did not follow its own progressive discipline
policy, which instructs that “corrective action be escalating.” BMA took no
corrective action against Lindsey whatsoever for failing for several months to
submit the tracking reports on time—it simply terminated her on August 1.
As Lindsey states in her brief, “the fact that [BMA] did not issue a counseling
statement on the alleged tardy reports is quite telling” in light of the fact that
her supervisors “had not missed any opportunity to issue counseling
statements and job performance deficiency statements to [her] relating to
alleged absenteeism.” Finally, Lindsey’s deposition testimony suggests that
BMA did not view her untimely reports as a serious infraction. As she
explained, the late reports “never [caused] an issue”—“[i]f you were late,
then you’d call Ms. Lynda [Ball, Network 13’s Quality Improvement
Director], you’d tell her, and she says ‘Thank you.’”
As anyone who has ever worked in an office environment can attest,
there are real deadlines and hortatory ones—and everyone understands the
difference between the two. Missing real deadlines results in actual adverse
consequences for employer and employee alike—while failing to meet
hortatory deadlines does not. BMA does not point to any adverse impact that
Lindsey’s tardy reports had on the company. And in any event, there is no
evidence BMA ever warned Lindsey that failure to submit the reports on time
could jeopardize her job. So there is a genuine issue of material fact as to
whether BMA’s assertion that it fired Lindsey for this reason is “unworthy
of credence.”
Accordingly, we reverse the entry of summary judgment on Lindsey’s
FMLA retaliation claim and remand for further proceedings on that claim.
C.
Lastly, Lindsey alleges that BMA retaliated against her for objecting
to Robinson’s prescription proposal, in violation of Louisiana’s
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whistleblower law. La. Rev. Stat. 23:967A(3). That statute provides, in
relevant part, that “[a]n employer shall not take reprisal against an employee
who in good faith, and after advising the employer of the violation of law[,] .
. . [o]bjects to or refuses to participate in an employment act or practice that
is in violation of law.”
The district court rejected Lindsey’s state law retaliation claim after
determining that the lone provision she cited as a “violation of law” didn’t
actually prohibit Robinson’s prescription proposal. Lindsey challenges that
determination on appeal and cites several provisions in support.
We need not delve into the intricacies of Louisiana pharmacy law,
however, because we can affirm summary judgment on a different ground.
See United States v. Mazkouri, 945 F.3d 293, 307 (5th Cir. 2019) (“[W]e can
affirm on any ground supported by the record.”). The Louisiana Supreme
Court has held that, “[i]n order to bring an action under [Louisiana Revised
Statute] 23:967, the employee must establish the employer engaged in
workplace conduct constituting an actual violation of state law.” Encalarde v.
New Orleans Ctr. for Creative Arts/Riverfront, 2014-2430 (La. 2/13/15);
158 So.3d 826, 826 (mem.) (emphasis added); accord Herster v. Bd. of
Supervisors of La. State Univ., 887 F.3d 177, 187 (5th Cir. 2018). And as BMA
correctly explains, “Lindsey cannot establish that a violation of state law
regarding patient medication ever occurred, or that it was ever an actual
practice of BMA.”
Indeed, Lindsey practically concedes as much. Her opening brief
repeatedly states that she objected to a “proposed practice,” not to an actual
one. Her reply brief does not respond to BMA’s argument. And she testified
at her deposition that she “d[idn’t] have any evidence that [prescription
redistribution] was actually going on” at her clinic.
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We agree with the entry of summary judgment on Lindsey’s Louisiana
whistleblower claim.
***
For the foregoing reasons, we affirm in part and reverse in part and
remand for further proceedings on Lindsey’s FMLA retaliation claim.
15