                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                              July 30, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
PAUL JANCZAK,

      Plaintiff - Appellant,

v.                                                          No. 14-5071
                                               (D.C. No. 4:13-CV-00154-CVE-FHM)
TULSA WINCH, INC.,                                          (N.D. Okla.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, EBEL, and LUCERO, Circuit Judges.
                  _________________________________

      After suffering an injury, Paul Janczak took leave under the Family and Medical

Leave Act (“FMLA”). Immediately upon his return from FMLA leave, his employer,

Tulsa Winch, Inc. (“TWI”), terminated his employment. TWI claimed that it had decided

to terminate Janczak’s position while he was on leave. Janczak sued, alleging

interference and retaliation under the FMLA. The district court granted summary

judgment in favor of TWI, concluding that Janczak would have been fired even if he had

not taken FMLA leave. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the

grant of summary judgment on the retaliation claim. However, because a reasonable jury

could find that TWI interfered with Janczak’s FMLA leave, summary judgment was

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
prematurely granted on the interference claim. Accordingly, on the interference claim,

we reverse and remand for further proceedings.

                                             I

       Paul Janczak was hired by TWI in June 2010 as General Manager (“GM”) of

Canadian operations. In May 2012, his immediate supervisor, Andrew Masullo, was

fired for an “inappropriate management style, including bullying of employees.” At that

time, TWI President Steve Oden stated that Janczak would continue to lead Canadian

operations at the firm and would have an opportunity to demonstrate his leadership skills.

The next month, Janczak attended a leadership program alongside other TWI managers,

and was found to have met performance standards. A summary of Janczak’s leadership

competencies prepared in mid-July 2012 stated the following:

       Paul has begun demonstrating the leadership you would expect to find in a
       General Manager. Our Canadian organization has significant growth
       initiatives in place that will need strong support and leadership to be fully
       realized. Paul has demonstrated enthusiasm about our new structure and
       the opportunity [sic] demonstrate his leadership skills and I look forward to
       seeing him take full advantage of it. This will be further reviewed at the
       end of Q3.

       Oden attests that on June 18, 2012, he visited the site where Janczak worked and

observed that, after Masullo’s departure, “the business structure in Canada was evolving

toward a matrix reporting structure wherein almost all of the Canadian department heads

were reporting directly into [sic] the functional executives at corporate headquarters in

Jenks, Oklahoma.” He also attests that, at a meeting on June 26, someone raised the

question “whether there was a need for a GM in Canada,” and that on July 6, Jill Evanko,

a vice president at TWI, “recommended elimination of [the GM] position.”

                                            -2-
       On July 30, Janczak was injured in a vehicle accident. As a result, he took FMLA

leave between July 31, 2012 and October 1, 2012. In mid-August, Janczak forwarded his

FMLA leave certification to TWI. Janczak reports that he provided Oden additional

information about his medical condition during an August 23, 2012 phone call.

       At the start of Janczak’s leave, Oden had not broached the elimination of

Janczak’s position with him. On August 8, Oden emailed Bill Spurgeon, to whom he

reported, to inform Spurgeon that although he would “be evaluating Paul’s performance

as a GM and the need for a GM in general,” he was “generally not a fan of a highly

matrixed and remote management structure . . . [p]articularly in the case of [the]

Canadian operation.” Oden suspected that TWI “will need a strong onsite presence to

make sure things are getting done,” and intended to give Janczak “time to demonstrate

his capabilities” and show that he is “the guy for that.” In an affidavit, Oden asserts that

“on or about August 14, 2012,” he decided to eliminate the GM position in Canada and

terminate Janczak’s employment.

       Nevertheless, on the morning of August 14, Oden emailed Spurgeon to inform him

that he planned to “further evaluate Paul’s ability to provide the necessary leadership”

after his return from FMLA leave. And on August 21, Oden reported that Dave

Rowland, another TWI employee, “would be providing oversight of the supply chain and

manufacturing area during Paul’s absence which is estimated to run for the next three

weeks.” He also announced on August 21 that two new hires “will report directly to the

General Manager” in Canada. A contemporaneous announcement from TWI stated that

Janczak “may be able to travel and return to work sometime around the middle of

                                             -3-
September.” In an August 24 email, Cheryl Bailey, Director of Human Resources at

TWI, identified “Supporting Paul (upon his return)” as an agenda item. Bailey’s notes

from a meeting on August 27 contained a variety of notations regarding Janczak,

including “Check Paul’s contract,” “Rowland as next GM,” “Spurgeon vs Janczak,”

“phase PZ out,” “what is plan for Paul – eliminate position.” On August 31, Oden told

Spurgeon that he planned to eliminate the GM position and end Janczak’s employment.

On October 1, 2012, the day he returned to work, Janczak was told that his employment

had been terminated effective immediately “due to the discontinuation of [his] function.”

       Subsequent to Janczak’s firing, a matrix reporting structure was adopted and

several Canadian management positions were eliminated, with the remaining Canadian

department heads reporting to executives in Oklahoma. This change resulted in TWI

firing its longtime Canadian Controller, Garry Jung.

       On March 18, 2013, Janczak filed suit alleging that TWI engaged in retaliation

under the FMLA and interfered with his exercise of FMLA rights. Following discovery,

Janczak and TWI filed cross motions for summary judgment. The district court denied

Janczak’s motion and granted TWI’s motion. Janczak v. Tulsa Winch, Inc., No. 13-CV-

0154-CVE-FHM, 2014 WL 2197794, at *11 (N.D. Okla. May 27, 2014) (unpublished).

It concluded that Janczak had established the first two elements of his FMLA interference

claim but that TWI had shown, as a matter of law, that it would have discharged Janczak

even if he had not exercised his FMLA rights. Id. at *9-10. The district court also

concluded that Janczak satisfied the first two elements of a prima facie case of FMLA

retaliation, but that he had not shown a genuine issue of material fact as to a causal

                                             -4-
connection between his protected activity and his discharge. Id. Janczak timely

appealed.

                                            II

      A district court decision regarding a motion for summary judgment in an FMLA

case is reviewed de novo on appeal, applying the same standard as the district court.

Turner v. Pub. Serv. Co., 563 F.3d 1136, 1142 (10th Cir. 2009). We view facts in the

light most favorable to Janczak as the non-moving party and draw all reasonable

inferences in his favor. Tabor v. HILTI, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013). “If

a reasonable jury could return a verdict for the nonmoving party, summary judgment is

inappropriate.” Riser v. QEP Energy, 776 F.3d 1191, 1195 (10th Cir. 2015) (quotation

omitted).

      Janczak took leave under an FMLA provision “allowing leave because of a serious

health condition that makes the employee unable to perform the functions of the position

of such employee.” Brockman v. Wyo. Dep’t of Family Servs., 342 F.3d 1159, 1164

(10th Cir. 2003) (citing 29 U.S.C. § 2612(a)(1)(D)) (quotation and alteration omitted).

We have observed that

      [t]he legislative history accompanying the passage of the FMLA reveals
      two motivations for the inclusion of [this] provision. First, Congress was
      attempting to alleviate the economic burdens to both the employee and to
      his or her family of illness-related job-loss. Second, Congress was
      attempting to prevent those with serious health problems from being
      discriminated against by their employers.

Id. (citations omitted). The FMLA also contains a provision prohibiting certain acts by

employers. § 2615. “This circuit has recognized two theories of recovery under


                                           -5-
§ 2615(a): an entitlement or interference theory arising from § 2615(a)(1), and a

retaliation or discrimination theory arising from § 2615(a)(2).” Metzler v. Fed. Home

Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006). “These two theories of

recovery are separate and distinct theories that require different showings, differ with

respect to the burden of proof, and differ with respect to the timing of the adverse action.”

Dalpiaz v. Carbon Cnty., Utah, 760 F.3d 1126, 1131 (10th Cir. 2014) (quotations and

alteration omitted). In particular, “the employer bears the burden of proof on the third

element of an interference claim once the plaintiff has shown her FMLA leave was

interfered with,” whereas the same is not true on a retaliation claim. Campbell v.

Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007). Because of these

differences, it is generally easier for a plaintiff to prevail under an interference than a

retaliation theory. Id. (“Due to this difference in where the burden lies with respect to

the third element of each theory, it is not unusual for a plaintiff to pursue an interference

theory while the defendant argues that the evidence may only be analyzed under a

retaliation theory.”).

                                               A

       We begin by considering Janczak’s interference claim. Section 2615(a)(1) states

that “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the

exercise of or the attempt to exercise, any right provided in this subchapter,” such as the

right to take FMLA leave. Three elements are necessary to establish an FMLA

interference claim: (1) that the employee was entitled to FMLA leave; (2) that some

adverse action by the employer interfered with the employee’s right to take FMLA leave;

                                              -6-
and (3) that the employer’s action was related to the exercise or attempted exercise of her

FMLA rights. DeFreitas v. Horizon Inv. Mgmt. Corp., 577 F.3d 1151, 1159 (10th Cir.

2009). If an employee demonstrates the first two elements, the employer bears the

burden of demonstrating that the adverse decision was not related to the exercise of the

employee’s FMLA rights. Dalpiaz, 760 F.3d at 1132.

       As the district court correctly noted, “unlike in a retaliation claim, an employer

defending against an interference claim has the burden of proving that it would have

terminated the employee regardless of the employee’s FMLA leave.” Janczak, 2014 WL

2197794, at *10 (citing Sabourin v. Univ. of Utah, 676 F.3d 950, 962 (10th Cir. 2012));

accord Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 877 (10th Cir. 2004) (“If dismissal

would have occurred regardless of the request for an FMLA leave . . . an employee may

be dismissed even if dismissal prevents her exercise of her right to an FMLA leave.”).

The district court concluded that TWI had established as a matter of law that it would

have fired Janczak regardless of his FMLA leave on the basis of materials provided by

TWI showing that it was contemplating Janczak’s position prior to his leave. Janczak,

2014 WL 2197794, at *10.

       We agree that TWI provided evidence suggesting that it was contemplating

eliminating the GM position before Janczak was placed on leave. But such evidence

does not constitute sufficient proof to permit summary judgment. Our precedent requires

an employer seeking summary judgment on an interference claim to show that

termination would certainly have occurred regardless of leave. See DeFreitas, 577 F.3d

at 1160 (considering whether the employee “would have been fired anyway, regardless of

                                            -7-
leave”); accord Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 548 (4th Cir.

2006) (holding that “an employer may deny restoration when it can show that it would

have discharged the employee in any event regardless of the leave”).

       In concluding that evidence of contemplated but not definitive termination was

sufficient to dismiss an FMLA interference claim at the summary judgment stage, the

district court relied on Clark County School District v. Breeden, 532 U.S. 268 (2001) (per

curiam), a Title VII harassment case in which the Court noted that an employer’s

“proceeding along lines previously contemplated, though not yet definitively determined,

is no evidence whatever of causality.” Id. at 272. However, because Breeden involved

only a retaliation claim, see id. at 269, the employee bore the burden of establishing

causality. In contrast, TWI bears the burden of demonstrating that Janczak’s termination

was not related to the exercise of his FMLA rights. See Dalpiaz, 760 F.3d at 1132. And

Breeden does not establish that proceeding along previously contemplated lines negates

other evidence on which a jury might base its conclusion that a termination was related to

the exercise of FMLA rights.

       Our cases upholding summary judgment against an employee who was fired while

validly taking FMLA leave have involved undisputed evidence that the employee in

question would have been terminated even if FMLA leave had not been taken. E.g.

Dalpiaz, 760 F.3d at 1134 (employee failed “to comply with a direct and legitimate order

from her supervisors”); Brown v. ScriptPro, LLC, 700 F.3d 1222, 1228 (10th Cir. 2012)

(“overwhelming evidence of . . . performance issues” that predated the leave); Bones, 366

F.3d at 877-78 (employee had repeatedly been tardy and was noncompliant with absence

                                            -8-
policy on the date she was terminated); McBride v. CITGO Petroleum Corp., 281 F.3d

1099, 1102 (10th Cir. 2002) (employee, prior to leave, had been tardy, absent from her

desk, and failed to timely pay invoices or update list of services received from vendors).

In contrast, we allowed an FMLA claim to go to a jury, even though substantial evidence

existed supporting the assertion that the employee was fired for reasons unrelated to the

leave, in a case where the employee had been a strong performer and the employer’s

proffered evidence contained internal inconsistencies. See DeFreitas, 577 F.3d at 1160-

61.

       There is no evidence that Janczak ever violated company policy, was deficient in

his duties, or was insubordinate, as in Dalpiaz, Bones, Brown, or McBride. Nor does the

evidence proffered by TWI constitute undisputed proof that Janczak’s position was

definitively slated for elimination before his leave began. Construed in the light most

favorable to Janczak, the evidence TWI presented, including Evanko’s July 6

recommendation that the GM position be eliminated and Oden’s report that he

reevaluated the need for the GM position after firing Masullo, merely establish that the

company was uncertain about the future of its Canadian operations. This case is not like

Sabourin, where the evidence was “unequivocal that the reduction-in-force decision had

already been made” before the employee took FMLA leave. Cf. 676 F.3d at 959.

       Even though TWI provided evidence that might persuade a jury to conclude that

Janczak’s leave ultimately played no role in his termination, the grant of summary

judgment prematurely took that determination from the jury. See Brown, 700 F.3d at

1227 (observing that “summary judgment for the employer is warranted only when there

                                            -9-
is no genuine dispute as to any material fact regarding the grounds for termination,” and

that “the question . . . is not whether a reasonable jury could find in favor of [the

employer], but rather whether the evidence is so one-sided that submission to a jury is not

required”); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (holding

that, in deciding whether to grant summary judgment, “the judge must ask himself not

whether he thinks the evidence unmistakably favors one side or the other but whether a

fair-minded jury could return a verdict for the plaintiff on the evidence presented”);

Bullington v. United Air Lines, Inc., 186 F.3d 1310, 1315 (10th Cir. 1999), overruled on

other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)

(concluding that summary judgment in employment discrimination case was premature

despite significant weaknesses in employee’s argument).

       Under the facts of this case, a reasonable jury might conclude that Janczak’s

FMLA leave directly contributed to the decision to terminate him. For instance, a jury

could conclude that Oden would not have reconsidered the importance of keeping a GM

position in Canada, given his stated feeling as late as early August that a strong onsite

presence was needed, had Janczak not gone on extended leave. This interpretation would

be further bolstered by Oden’s statements in an August 14 email to Spurgeon

emphasizing the importance of “further evaluat[ing] Paul’s ability to provide the

necessary leadership,” his statements in an August 21 email to Spurgeon that “Rowland

will be providing oversight of the supply chain and manufacturing area during Paul’s

absence which is estimated to run for the next three weeks,” and TWI’s August 21



                                             -10-
announcement that “[w]e are hopeful that Paul may be able to travel and return to work

sometime around the middle of September.”

       Additionally, as Janczak explains, the record makes it arguable that the decision to

terminate him became definitive not on Oden’s stated date of August 14, but instead later

that month, shortly after additional information about Janczak’s medical condition had

been received. See DeFreitas, 577 F.3d at 1160 (observing that “[w]henever termination

occurs while the employee is on leave, that timing has significant probative force,” and

describing a termination that “occurred just one day after [the employee] told [the

employer] that she would need to take a full six weeks off and could not return sooner” as

involving “particularly suggestive” timing); cf. Brown, 700 F.3d at 1227 (stating that an

employee’s being “fired only two days after his emails and meeting with [the employer]

about taking time off” for FMLA reasons “may be enough to prove the third element of

an interference claim, especially because the employer’s intent is irrelevant”). A

reasonable jury might rely on this information to infer that the decision to eliminate

Janczak’s position was related to his medical condition and his exercise of FMLA leave.

       On the record before us, a reasonable jury could conclude that Janczak’s taking

FMLA leave played a role in his ultimate termination and so find in his favor. Though

taking advantage of Janczak’s absence to reevaluate the value of his contributions to the

company might appear a prudent economic decision in the abstract, protecting ill or

caregiving employees from the effects of such a decision is precisely the purpose of the

FMLA. See DeFreitas, 577 F.3d at 1161 (observing that “the FMLA was enacted

because employers had found it in their economic self-interest to fire employees who

                                            -11-
missed too much work for medical care or other reasons now addressed by the FMLA”);

Brockman, 342 F.3d at 1164 (recounting the FMLA’s purpose to “alleviate the economic

burdens to both the employee and to his or her family of illness-related job-loss”); cf.

Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 959 (10th Cir. 2002)

(employee prevailed on FMLA interference claim even though “[d]uring [her] absence,

[the employer] says it became apparent” that she had not fully trained her subordinate).

       TWI is correct that courts are not empowered to be “super-personnel departments”

that can second-guess business judgments. See Bullington, 186 F.3d at 1318 n.14. But,

on summary judgment, we must view facts in the light most favorable to Janczak and

draw all inferences in his favor. Tabor, 703 F.3d at 1215. On the record before us, a

reasonable jury could—though need not—find in Janczak’s favor on the interference

claim. Accordingly, the grant of summary judgment was in error.

                                              B

       Janczak also advances an FMLA retaliation claim. We analyze retaliation claims

using the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). Under this approach, “the plaintiff bears the initial burden of

establishing a prima facie case of retaliation. If the plaintiff does so, then the defendant

must offer a legitimate, non-retaliatory reason for the employment action. The plaintiff

then bears the ultimate burden of demonstrating that the defendant’s proffered reason is

pretextual.” Metzler, 464 F.3d at 1170. “To make out a prima facie retaliation claim,

[Janczak] must show that: “(1) [he] engaged in a protected activity; (2) [his employer]

took an action that a reasonable employee would have found materially adverse; and (3)

                                            -12-
there exists a causal connection between the protected activity and the adverse action.”

Campbell, 478 F.3d at 1287 (quotation omitted).

       We agree with Janczak that, for reasons similar to those discussed supra, the

temporal proximity between his leave and his firing, combined with the other evidence he

provides, suffices to establish a prima facie case of retaliation. See Metzler, 464 F.3d at

1171-72. We therefore consider whether TWI articulated a legitimate, nonretaliatory

reason for terminating Janczak. On these facts, we conclude that it articulated such a

reason. Terminating Janczak as part of a general reorganization of managerial

responsibilities constitutes a non-retaliatory basis for termination, and TWI has offered

evidence that such a reorganization has occurred. Cf. Yashenko, 446 F.3d at 551

(concluding that reorganization constitutes a legitimate, nonretaliatory basis for

termination).

       Because TWI has articulated a legitimate, nonretaliatory reason for his

termination, the burden shifts back to Janczak to show that the stated reasons were

pretextual. We conclude that he fails to do so. Unlike his detailed explanation of why

TWI’s conduct constituted interference, his argument concerning pretext is conclusory

and underdeveloped: it consists only of a restatement of his temporal proximity

argument, which he concedes is insufficient to prove pretext, and conclusory allegations

that TWI’s real motivations were retaliatory. We do not see how the alleged evidentiary

discrepancy regarding whether TWI decided to terminate his employment on August 14

or August 27, absent further corroborating information, demonstrates that the “given

reasons for terminating [Janczak] are so weak, implausible, inconsistent, incoherent, or

                                            -13-
contradictory as to support a reasonable inference that [TWI] did not act for those

reasons.” Metzler, 464 F.3d at 1179.

       Moreover, Janczak does not meaningfully address the fact that TWI restructured

its operations to permanently eliminate the position he occupied and that another

managerial employee, Jung, was also fired as part of that restructuring. We have

observed that “[a] retaliation claim is premised on an adverse employment action that

was allegedly motivated by the employee’s choice to take the protected leave,” and that

“[i]n the typical retaliation claim, the employee successfully took FMLA leave, was

restored to her prior employment status, and was adversely affected by an employment

action based on incidents post-dating her return to work.” Robert v. Bd. of Cnty.

Comm’rs, 691 F.3d 1211, 1219 n.6 (10th Cir. 2012). Janczak’s situation does not fit this

pattern, because he was never restored to his prior employment status; rather, it fits much

more naturally into an interference theory.

       Accordingly, we conclude that summary judgment was proper as to the retaliation

claim, even though it was premature as to the interference claim. Resolving the

interference claim involves a fundamentally causal inquiry: whether Janczak’s taking

FMLA leave was causally connected to his termination. In contrast, resolving the

retaliation claim involves an inquiry into motivation: whether TWI’s proffered rationale

for terminating Janczak was mere pretext for its true, retaliatory motivation. Though

causation and motivation frequently align, the difference between interference and

retaliation claims illustrates that such alignment is not always necessary. See Johnson v.



                                              -14-
Rodriguez, 110 F.3d 299, 313 (5th Cir. 1997) (“The situation of pretext . . . concerns the

existence of retaliatory motivation, not causation.”).

       We have previously observed that our precedent regarding FMLA claims “could

well result on occasion in granting or affirming summary judgment to an employer on a

retaliation claim but not on an equivalent interference claim.” See Sabourin, 676 F.3d at

962. Because Janczak has offered sufficient evidence for a reasonable jury to conclude

that his FMLA leave played a causal role in his termination, but not sufficient evidence

for that jury to conclude that the motivation for terminating him was retaliatory, this case

represents such an occasion.

                                             III

       We AFFIRM the grant of summary judgment on Janczak’s retaliation claim,

REVERSE the grant of summary judgment on his interference claim, and REMAND for

further proceedings.




                                              Entered for the Court


                                              Carlos F. Lucero
                                              Circuit Judge




                                            -15-
