                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1882
                                   ___________

Samuel Stallings,                       *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Hussmann Corporation;                   *
Brian Groninger,                        *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: November 16, 2005
                                Filed: May 12, 2006
                                 ___________

Before SMITH, HEANEY, and BENTON, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

       Samuel L. Stallings sued his employer, Hussmann Corporation ("Hussmann")
and Brian Groninger, for wrongful termination in violation of the Family and Medical
Leave Act ("FMLA"). The district court granted summary judgment to Hussmann and
Groninger. Stallings argues that the district court erred in applying the doctrine of
judicial estoppel; erred in concluding that Hussmann and Groninger were entitled to
summary judgment on Stallings's FMLA claims; and erred in denying Stallings's
motion for partial summary judgment because Stallings established that Hussmann
considered his FMLA leave as a reason to terminate his employment. We reverse the
district court's application of judicial estoppel and its entry of summary judgment in
Hussmann's favor.

                                   I. Background
       Stallings worked as a general laborer for Hussmann. The terms of Stallings's
employment, including the rate and method of his compensation, were determined by
a collective bargaining agreement between the United States Steelworkers' of
America and Hussmann ("Bargaining Agreement"). The Bargaining Agreement
provides that an employee shall be terminated if "the employee gives [a] false reason
for a leave of absence. . . ." Hussmann allows employees to take medical leave as
required under the FMLA. In accordance with the FMLA, Hussmann allows
"intermittent" FMLA leave for an employee to care for a family member when
"medically necessary." Hussman eventually terminated Stallings for giving false
reasons for use of leave time.

       In December 2001, Stallings requested FMLA leave to care for his father.
Stallings requested the leave through the Hussman Human Resources Office
("HRO"), which granted his request. Stallings subsequently submitted a request for
an extension of the initial FMLA leave through June 2002, which the HRO also
granted. Stallings took intermittent FMLA leave during both the initial period and the
extended period.1 In June 2002, Stallings applied to have his prior intermittent FMLA
leave extended for another six-month period for "patient care." Stallings submitted
a Certificate of Health Care Provider in connection with this request. Hussmann's
FMLA policy, consistent with the FMLA, provides that "FMLA leave may be taken
intermittently whenever medically necessary to care for a seriously ill family
member." The HRO granted his request for a third time.

      1
        Stallings does not allege that Hussmann took any adverse action against him
as a result of his use of intermittent FMLA leave during these periods. In addition, on
other occasions when Stallings was disciplined for absences, he was informed of his
rights to take leave under the FMLA.

                                         -2-
       At Hussmann, supervisors grant vacation time on a seniority basis and on the
basis of company production needs. In February of each year, Hussmann policy and
the Bargaining Agreement require employees to request vacation time for the entire
year, if the employee is to exercise seniority rights for scheduling purposes. Senior
workers receive priority when conflicts arise as to requested vacation. In February
2000 and February 2001, Stallings requested and was granted the first three weeks
of August as vacation time.

       In January or February 2002, Groninger became Stallings's supervisor. In
February 2002, Stallings, as in the two prior years, requested the first three weeks of
August 2002 for his vacation. Because of Stallings's seniority standing, however,
Groninger could only schedule Stallings for one week of vacation in August.
Groninger never approved Stallings to take vacation for the second and third weeks
of August 2002. Groninger was never involved in deciding whether Stallings was
entitled to FMLA leave.

       Sometime prior to August 2002, Stallings met with Groninger to again request
the second and third weeks of August as vacation time. Groninger denied his request
because there were no available slots. Stallings then told Groninger that he intended
to take off the second and third weeks of August 2002 anyway as FMLA leave.
Stallings contends that he told Groninger that he would use the leave to provide care
for his father who was unable to care for himself. Groninger contends that Stallings
only told him he was using the leave to help his father move. Groninger reminded
Stallings that he would have to call in each workday to an automated answering
system to report his absence.

      Stallings did not report to work for the first three weeks of August. The first
week of work was scheduled vacation, and Stallings called the Hussmann automated



                                         -3-
answering system each day he was off work from August 12–26, 2002, and reported
that he was using FMLA leave.

       After Stallings returned to work, Louis Stralka, a Human Resources Generalist
in the HRO, summoned Stallings to a meeting through Groninger. The parties dispute
what transpired at this meeting. Stallings denies telling Stralka that he moved his
father while off work from August 12–26, 2002. Stallings does admit that he "stated
[his] reason why [he] was out on family medical leave" and that he told Stralka that
he "was moving, providing for his [father's] needs, painting, cutting the grass, et.
cetera." During the meeting, Stallings admitted that he did not help his father move
because the move was cancelled in early August, only a few days before his vacation
time began. When Stralka asked Stallings why he did not return to work when he
learned that he was not going to help his father move, Stallings responded, "Because
I was on vacation."

        Stallings told Stralka that he spent the two weeks he was on FMLA leave
performing maintenance on his father's home because the City of St. Louis had issued
a citation to his father to get the house up to Code. The City, however, dismissed the
citation against Stallings's father in June 2002. In addition, the citation did not relate
to painting or yard maintenance but to open storage containers on the property.
Stallings admitted that he had siblings and his father's wife in the area who could also
help his father, that he could have performed these tasks on the weekends and at
night, and that he did not need to take time off work to perform the tasks around his
father's house.

       Stralka reported to Richard Kurt, the Director of the HRO, that he believed
Stallings was lying about the reason he was absent for two weeks. Kurt made the
decision to terminate Stallings for "calling in FMLA for non-FMLA reasons,
fraudulent and [sic] misuse of the leave of absence policy, violation of company
policies in connection therewith and causing falsification of the company's records

                                           -4-
in this regard." Stallings admitted that he had no evidence that Groninger decided to
terminate him or that anyone other than Kurt made the decision to terminate him on
October 1, 2002.

      Following his termination, Stallings filed a grievance with the union, but the
union eventually withdrew the grievance. Stallings then filed a complaint on
December 18, 2002, with the United States Department of Labor, alleging that his
termination violated the FMLA. The Department of Labor, however, found in favor
of Hussmann, concluding that Stallings was properly terminated for fraudulently
taking leave.

       At the time of Stallings's termination on October 1, 2002, he was a debtor in
a Chapter 13 bankruptcy proceeding pending in the United States Bankruptcy Court
for the Eastern District of Missouri. At no time during the pendency of Stallings's
bankruptcy case did he disclose his claims against Groninger or Hussmann to the
bankruptcy court. On March 11, 2003, the bankruptcy court granted the bankruptcy
trustee's motion to dismiss the case. The bankruptcy case was closed on June 25,
2003.

       On September 12, 2003, Stallings filed suit against Hussmann and Groninger,
alleging an interference claim and a retaliation claim under the FMLA. The parties
filed cross motions for summary judgment. The district court granted Hussmann's and
Groninger's motion for summary judgment, holding that (1) Stallings's claims were
barred by the doctrine of judicial estoppel because Stallings failed to disclose his
cause of action against Hussmann and Groninger in his bankruptcy proceedings; (2)
even if his claims were not barred by the doctrine of judicial estoppel, Stallings failed
to rebut Hussman's and Groninger's non-discriminatory reason for terminating him;
and (3) Stallings could not show that his FMLA rights were interfered with,
restrained, or denied in any way by Hussmann and Groninger.



                                          -5-
                                    II. Discussion
       Stallings raises three arguments on appeal: (1) that the district court erred in
dismissing all of his claims based upon the doctrine of judicial estoppel; (2) that the
district court erred in concluding that had it not dismissed all of Stallings's claims
based on the doctrine of judicial estoppel, it would have granted Hussman's and
Groninger's motion for summary judgment because Stallings failed to prove pretext
for the FMLA claims; and (3) that the district court erred in denying Stallings's
motion for partial summary judgment because Stallings established that his use of
FMLA leave to care for his father was considered as a reason to terminate his
employment.

                                 A. Judicial Estoppel
      Stallings first argues that the district court erred in dismissing all of his claims
based upon the doctrine of judicial estoppel because application of the three factors
delineated in New Hampshire v. Maine, 532 U.S. 742, 750 (2001), weighs against the
application of the doctrine.

                          1. Applicable Standard of Review
       We have not previously articulated the proper standard of review when
reviewing a district court's application of the judicial estoppel doctrine. Leonard v.
Southwestern Bell Corp. Disability Income Plan, 341 F.3d 696, 700 (8th Cir. 2003).
A majority of our sister circuits that have addressed the issue apply the abuse of
discretion standard. See Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23,
30–31 (1st Cir. 2004) (citing In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir.
1999)); Talavera v. Sch. Bd., 129 F.3d 1214, 1216 (11th Cir. 1997); McNemar v.
Disney Store, Inc., 91 F.3d 610, 616–17 (3d Cir. 1996); Data Gen. Corp. v. Johnson,
78 F.3d 1556, 1565 (Fed. Cir.1996); United States v. Garcia, 37 F.3d 1359, 1367 (9th
Cir. 1994)); but see United States v. Hook, 195 F.3d 299, 305 (7th Cir. 1999)
(applying a de novo standard of review).



                                           -6-
       The First Circuit offers four bases for reviewing a district court's application
of the judicial estoppel doctrine for an abuse of discretion. Alternative, 374 F.3d at
30. First, the Court in New Hampshire "explained that 'judicial estoppel is an
equitable doctrine invoked by a court at its discretion.'" Id. at 30–31 (quoting New
Hampshire, 532 U.S. at 750). "Second, deferential review often is appropriate for
matters in which the trial court is 'better positioned . . . to decide the issue in
question.'" Id. at 31 (quoting Miller v. Fenton, 474 U.S. 104, 114 (1985)). The district
court is in a better position to decide if judicial estoppel applies because
"[d]etermining whether a litigant is playing fast and loose with the courts has a
subjective element [and] [i]ts resolution draws upon the trier's intimate knowledge of
the case at bar and his or her first-hand observations of the lawyers and their litigation
strategies." Id. Third, because judicial estoppel has an "amorphous nature" and
requires flexibility, the flexible abuse of discretion standard should apply. Id. Finally,
"the other courts of appeals to have addressed this question have settled unanimously
on abuse of discretion review." Id.

        Finding the First Circuit's reasoning persuasive, we hold that the abuse of
discretion standard applies to this court's review of a district court's application of the
judicial estoppel doctrine. "The fact that this case arises in the summary judgment
context does not affect our decision to review the trial court's determination for abuse
of discretion" because the abuse of discretion standard "typically applies to threshold
evidentiary determinations made in connection with summary judgment motions." Id.
Therefore, we will not overturn a district court's discretionary application of the
judicial estoppel doctrine "unless it plainly appears that the court committed a clear
error of judgment in the conclusion it reached upon a weighing of the proper factors."
Id. at 32.

                         2. The Doctrine of Judicial Estoppel
      The doctrine of judicial estoppel "protects the integrity of the judicial process."
Total Petroleum, Inc. v. Davis, 822 F.2d 734, 738 n.6 (8th Cir. 1987). A court invokes

                                           -7-
judicial estoppel when a party abuses the judicial forum or process by making a
knowing misrepresentation to the court or perpetrating a fraud on the court. Id.
"Judicial estoppel prevents a person who states facts under oath during the course of
a trial from denying those facts in a second suit, even though the parties in the second
suit may not be the same as those in the first." Monterey Dev. Corp. v. Lawyer's Title
Ins. Corp., 4 F.3d 605, 609 (8th Cir. 1993). Therefore, a party that takes a certain
position in a legal proceeding, "and succeeds in maintaining that position," is
prohibited from thereafter assuming a contrary position "simply because his interests
have changed," especially if doing so prejudices the party "who acquiesced in the
position formerly taken by him." New Hampshire, 532 U.S. at 748 (internal
quotations and citations omitted).

       "The circumstances under which judicial estoppel may appropriately be
invoked are probably not reducible to any general formulation of principle." Id. at
750. Three factors, while not "an exhaustive formula for determining the applicability
of judicial estoppel," aid a court in determining whether to apply the doctrine. Id. at
751. The three factors are as follows:

      First, a party's later position must be clearly inconsistent with its earlier
      position. Second, courts regularly inquire whether the party has
      succeeded in persuading a court to accept that party's earlier position, so
      that judicial acceptance of an inconsistent position in a later proceeding
      would create the perception that either the first or the second court was
      misled. Absent success in a prior proceeding, a party's later inconsistent
      position introduces no risk of inconsistent court determinations, and thus
      poses little threat to judicial integrity. A third consideration is whether
      the party seeking to assert an inconsistent position would derive an
      unfair advantage or impose an unfair detriment on the opposing party if
      not estopped.

Id. at 750–51 (internal quotations and citations omitted).



                                          -8-
       In the bankruptcy context, a party may be judicially estopped from asserting
a cause of action not raised in a reorganization plan or otherwise mentioned in the
debtor's schedules or disclosure statements. Coastal, 179 F.3d at 208. A debtor's
failure to list a claim in the "mandatory bankruptcy filings is tantamount to a
representation that no such claim existed." In re Superior Crewboats, Inc., 374 F.3d
330, 335 (5th Cir. 2004). For example, in United States ex rel. Gebert v. Transp.
Admin. Servs., 260 F.3d 909 (8th Cir. 2001), two former employees of a company
who were terminated from their job filed a qui tam lawsuit against the company. Id.
at 912. The company subsequently filed a motion for summary judgment, alleging
that the claim was prohibited under judicial estoppel principles because the two
employees, who were married, failed to list a claim against the company as an asset
in their prior bankruptcy proceeding in which the bankruptcy court discharged them
from bankruptcy. Id. at 913. We upheld the district court's finding that the employees
were judicially estopped from asserting the claim against the company because they
had represented to the bankruptcy court, through their failure to disclose the qui tam
claim, that they did not possess the claim. Id. at 917.2

       The second New Hampshire factor requires that the bankruptcy court have
adopted the debtor's position. Superior, 374 F.3d at 335. For example, where the
bankruptcy court issues a "no asset" discharge, the bankruptcy court has effectively
adopted the debtor's position. Id. Similarly, when a bankruptcy court discharges the
debtor's debts based on information the debtor provided in the schedules but
thereafter vacates and dismisses the debtor's bankruptcy after learning that the debtor
was concealing claims, the court's original discharge of the debt is sufficient
acceptance of the debtor's position to provide a basis for judicial estoppel. Hamilton
v. State Farm Fire & Cas. Co., 270 F.3d 778, 784 (9th Cir. 2001).


      2
       Gebert was decided three months after the Court's decision in New Hampshire.
In Gebert, however, this court did not specifically address the three recommended
factors outlined in New Hampshire nor cite New Hampshire.

                                         -9-
       Under the final New Hampshire factor, the debtor's non-disclosure of the claim
must not be inadvertent and must result in the debtor gaining an unfair advantage.
Superior, 374 F.3d at 335–36. Three examples illustrate the third factor. First, where
a debtor files suit against a party, alleging that the party was responsible for the
debtor filing bankruptcy, but failed to refer to the claim in any of its bankruptcy
petitions, the debtor is judicially estopped from subsequently asserting the pre-
petition claim that was not disclosed to the bankruptcy court. Payless Wholesale
Distrib., Inc. v. Alberto Culver, Inc., 989 F.2d 570, 571 (1st Cir. 1993); see also
Barger v. City of Cartersville, 348 F.3d 1289 (11th Cir. 2003) (prohibiting an
employee who filed for bankruptcy because a demotion resulted in less pay from
filing suit against her employer for violation of the FMLA because the employee
failed to list the discrimination suit as an asset). The court will not allow the debtor
to conceal its claims, get rid of its creditors "on the cheap," and start over with a
"bundle of rights." Payless, 989 F.2d at 571. Because the debtor obtained judicial
relief on the representation that no claims existed, the debtor is prohibited from
resurrecting such claims and obtaining relief on the opposite basis. Id.

       Second, when a debtor does not disclose potential claims against its creditors
in the bankruptcy petition, the interests of both the creditors and the bankruptcy court
are impaired. Coastal, 179 F.3d at 208. In Coastal, a week after filing a bankruptcy
petition, a Chapter 11 debtor initiated an adversary proceeding against its largest
unsecured creditor. Id. at 202. Shortly thereafter, the debtor executed sworn
bankruptcy schedules, not disclosing its potential $10 million claim against the
creditor. Id. The Fifth Circuit held that the debtor was judicially estopped from
asserting its claims against the unsecured creditor. Id. at 208. "A debtor's failure to
satisfy its statutory disclosure duty is 'inadvertent' only when, in general, the debtor
either lacks knowledge of the undisclosed claims or has no motive for their
concealment." Id. at 210 (emphasis in original).




                                         -10-
       Finally, a debtor who files his bankruptcy petition, subsequently receives a
right-to-sue letter from the Equal Employment Opportunity Commission (EEOC), and
then fails to amend his bankruptcy petition to add his lawsuit against his employer as
a potential asset is estopped from bringing the lawsuit because the debtor "knew
about the undisclosed claims and had a motive to conceal them from the bankruptcy
court." DeLeon v. Comcar Indus., Inc., 321 F.3d 1289, 1291 (11th Cir. 2003).

       Notably, judicial estoppel does not apply when a debtor's "prior position was
taken because of a good-faith mistake rather than as part of a scheme to mislead the
court." Ryan v. Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362
(3d Cir. 1996) (internal quotations and citation omitted). "Although it may generally
be reasonable to assume that a debtor who fails to disclose a substantial asset in
bankruptcy proceedings gains an advantage," the specific facts of a case may weigh
against such an inference. Id. at 363. A rule that the "requisite intent for judicial
estoppel can be inferred from the mere fact of nondisclosure in a bankruptcy
proceeding [would] unduly expand the reach of judicial estoppel in post-bankruptcy
proceedings and would inevitably result in the preclusion of viable claims on the
basis of inadvertent or good-faith inconsistencies." Id. at 364. Careless or inadvertent
disclosures are not the equivalent of deliberate manipulation. Id. Courts should only
apply the doctrine as an extraordinary remedy when a party's inconsistent behavior
will result in a miscarriage of justice. Id. at 365.

      Here, the district court failed to apply the three factors outlined in New
Hampshire; therefore, we will apply each factor to determine if the district court
abused its discretion in dismissing Stallings's claims based on judicial estoppel.

      First, as in Gebert, Stallings's failure to amend his bankruptcy schedules to
include his claims against Hussman and Groninger represented to the bankruptcy
court that no such claims existed. Therefore, his subsequent filing of the FMLA



                                         -11-
claims against Hussmann and Groninger are "clearly inconsistent" with his position
in bankruptcy court that no such claims existed.

      Under the second factor, however, no judicial acceptance of Stallings's
inconsistent position occurred. Unlike Superior and Hamilton, the bankruptcy court
never discharged Stallings's debts based on the information that Stallings provided
in his schedules. Instead, the bankruptcy court granted the bankruptcy trustee's
motion to dismiss the case.

       Finally, Stallings would not derive an unfair advantage over Hussmann and
Groninger if allowed to bring the FMLA claims against them. Stallings was already
a Chapter 13 debtor when Hussmann terminated him from his job; therefore, he could
not have known at the time he filed his bankruptcy petition to disclose such claims.
In addition, unlike the debtors in Payless and Bargar who alleged that the defendants'
wrongdoings led to their bankruptcy filings, Stallings does not allege that Hussmann's
or Groninger's wrongdoing caused him to file for bankruptcy. Also, while the debtors
in Coastal, Oneida, and Hay brought claims against creditors that were involved in
their bankruptcy, thereby seeking to gain a substantial advantage over them by
subsequently bringing suits against them after their debts were discharged, neither
Hussmann nor Groninger are Stallings's creditors. Furthermore, unlike the debtor in
DeLeon who was issued a right-to-sue letter by the EEOC after filing for bankruptcy,
Stallings received an adverse ruling by the United States Department of Labor, which
found that Stallings was properly terminated for fraudulently taking leave. Therefore,
we cannot say that Stallings clearly knew at the time his bankruptcy was pending that
he had a viable claim against Hussmann and Groninger.

      Upon weighing the New Hampshire factors, we conclude that the district court
abused its discretion in applying the judicial estoppel doctrine to the present case.




                                        -12-
                                   B. FMLA Claims
       Stallings next argues that the district court erred in concluding that,
alternatively, it could grant Hussman's and Groninger's motion for summary judgment
because Stallings failed to prove pretext. Stallings claims that he established pretext
regarding one of Hussman's and Groninger's reasons for his discharge. We review a
district court's grant of summary judgment de novo. Putman v. Unity Health Sys., 348
F.3d 732, 733 (8th Cir. 2003).

       The FMLA provides job security to employees who must miss work because
of their own illnesses, to care for family members, or to care for new babies. 29
U.S.C. § 2612(a)(1)(A)–(D). The FMLA provides eligible employees up to 12
workweeks of unpaid leave during any 12-month period. Id. § 2612(a)(1). An
employee must provide notice to an employer that he plans to take FMLA leave. Id.
§ 2612(e)(2).

       Two types of claims exist under the FMLA: (1) "interference" or "(a)(1)"
claims in which the employee alleges that an employer denied or interfered with his
substantive rights under the FMLA and (2) "retaliation" or "(a)(2)" claims in which
the employee alleges that the employer discriminated against him for exercising his
FMLA rights. 29 U.S.C. § 2615(a)(1)–(2). Stallings alleges both an interference claim
and a retaliation claim against Hussmann and Groninger and asserts that the district
court improperly analyzed his FMLA claims as solely a claim for FMLA retaliation
when he brought claims for both interference and retaliation.

                               1. Interference Claim
       An employer is prohibited from interfering with, restraining, or denying an
employee's exercise of or attempted exercised of any right contained in the FMLA.
29 U.S.C. § 2615(a)(1). Interference includes "not only refusing to authorize FMLA
leave, but discouraging an employee from using such leave. It would also include
manipulation by a covered employer to avoid responsibilities under FMLA." 29

                                         -13-
C.F.R. § 825.220(b). An employer's action that deters an employee from participating
in protected activities constitutes an "interference" or "restraint" of the employee's
exercise of his rights. Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124 (9th
Cir. 2001). "A violation of this provision creates what is commonly known as the
interference theory of recovery." Throneberry v. McGehee Desha County Hosp., 403
F.3d 972, 977 (8th Cir. 2005). When an employer attaches negative consequences to
the exercise of protected rights, it has "chilled" the employee's willingness to exercise
those rights because he or she does not want to be fired or disciplined for doing so.
Bachelder, 259 F.3d at 1124.

       In an interference claim, an "employee must show only that he or she was
entitled to the benefit denied." Russell v. N. Broward Hosp., 346 F.3d 1335, 1340
(11th Cir. 2003) (stating that the burden to establish an interference claim is less than
that of a retaliation claim, which requires a showing that the employer's actions were
motivated by an impermissible retaliatory animus). This court has recognized that an
employee can prove interference with an FMLA right regardless of the employer's
intent. Throneberry, 403 F.3d at 979. An employee can prevail under an interference
theory if he was denied substantive rights under the FMLA for a reason connected
with his FMLA leave.3 Id. "[E]very discharge of an employee while [he] is taking
FMLA leave interferes with an employee's FMLA rights. However, the mere fact of
discharge during FMLA leave by no means demands an employer be held strictly
liable for violating the FMLA's prohibition of interfering with an employee's FMLA
rights." Id. at 980 (emphasis added). Thus, where an employer's reason for dismissal
is insufficiently related to FMLA leave, the reason will not support the employee's
recovery. Id. at 979 (holding that strict liability does not apply to an (a)(1) claim).


      3
       When analyzing an interference claim under the FMLA, this court has rejected
the application of burden-shifting scheme in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). Rankin v. Seagate Tech., Inc., 246 F.3d 1145, 1148 (8th Cir.
2001).

                                          -14-
      Confusion often arises as to whether an employee's FMLA claim "is really
about interference with his substantive rights, not discrimination or retaliation."
Kauffman v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir. 2005). The difference
between the two claims is that the interference claim merely requires proof that the
employer denied the employee his entitlements under the FMLA, while the retaliation
claim requires proof of retaliatory intent. Id. "Although in some circumstances, a
given set of facts will fall clearly into either (a)(1) or (a)(2), it appears that the lines
between the two categories are not hard and fast."Dillaway v. Ferrante, No. Cir. 02-
715 (JRT/JSM), 2005 WL 23109696, at *5 (D. Minn. Dec. 9, 2003) (unpublished).

       In the present case, we conclude that the district court did not improperly
analyze Stalling's FMLA claim as one of retaliation instead of interference. First,
Hussmann granted every request Stallings made to take FMLA leave; therefore,
Stallings has failed to establish that Hussmann and Groninger denied him a benefit
to which he was entitled because he received all of the FMLA leave he requested.
With regard to Groninger, Stallings failed to present evidence that Groninger was
involved in the decision to terminate him. Second, neither Hussmann nor Groninger
ever impeded Stallings's use of FMLA leave. Third, only after Stallings returned from
FMLA leave did Hussmann question whether Stallings fraudulently used his FMLA
leave and fire Stallings. Therefore, Stalling's claim is fundamentally a claim for
retaliation and should be analyzed as such.

                                 2. Retaliation Claim
       The FMLA prohibits employers from discriminating against an employee for
asserting his rights under the Act. Darby v. Bratch, 287 F.3d 673, 679 (8th Cir. 2002)
(citing 29 U.S.C. § 2615(a)(2)). "This prohibition necessarily includes consideration
of an employee's use of FMLA leave as a negative factor in an employment action."
Id. "Basing an adverse employment action on an employee's use of leave . . . is
therefore actionable." Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir.
2002).

                                           -15-
       While Stallings argues that he has presented direct evidence of Hussmann's
discriminatory intent because he was terminated for "calling in FMLA for non-FMLA
reasons," we find no such evidence. First, the Bargaining Agreement specifically
states that an employee is subject to termination for giving a false reason for taking
a leave of absence. Second, Stallings failed to present any evidence that Hussmann
or Groninger admitted to discriminating against him because he used his FMLA for
a legitimate purpose. Therefore, his retaliation claim must be analyzed under the
McDonnell Douglas burden-shifting framework. Because neither party disputes that
Stallings established a prima facie case of discrimination under McDonnell Douglas,
the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason
for its challenged actions. McDonnell Douglas, 411 U.S. at 802. The defendant's
burden "is not onerous and the showing need not be made by a preponderance of the
evidence." Wallace v. Sparks Health Sys., 415 F.3d 853, 860 (8th Cir. 2005). Here,
Hussman contends that it fired Stallings because it reasonably believed that Stallings
was lying about why he took off work the second and third weeks of August.

       Once the employer comes forward with evidence of a reason other than
retaliation for the employee's discharge, the employee is "left with 'the opportunity
to demonstrate that the proffered reason is not the true reason for the employment
decision.'" Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006)
(quoting Texas Dept. of Cmty. Affairs v. Burdine, 4560 U.S. 248, 255 (1981)). The
employee may demonstrate pretext by two different methods. "First, a plaintiff may
succeed 'indirectly by showing that the employer's proffered explanation is unworthy
of credence.'" Id. (quoting Smith, 302 F.3d at 834). Under this method, the employee
must rebut the employer's "underlying factual claims" by establishing that the
employer's explanation has no basis in fact. Id.

       Second, the plaintiff may prove pretext "'directly by persuading the court that
a [prohibited] reason more likely motivated the employer.'" Id. (quoting Burdine, 450
U.S. at 256). Under this method, the employee rebuts "the employer's ultimate factual

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claim regarding the absence of retaliatory intent." Id. at 1121. The employee must
demonstrate "that sufficient evidence of intentional retaliation exists for a jury to
believe the plaintiff's allegations and find that the proffered explanation was not the
true motivating explanation." Id. Thus, the employee "may concede that the proffered
reason for the termination, would have been a sufficient basis for the adverse action
while arguing that the employer's proffered reason was not the true reason for the
action." Id. (emphasis in original).

       An employee may prove pretext by demonstrating that the employer's proffered
reason has no basis in fact, that the employee received a favorable review shortly
before he was terminated, that similarly situated employees who did not engage in the
protected activity were treated more leniently, that the employer changed its
explanation for why it fired the employee, or that the employer deviated from its
policies. Smith, 302 F.3d at 834–35.

       Here, Stallings asserts that he established pretext because (1) a genuine issue
of material fact exists as to whether Stralka "reasonably believed" that Stallings was
lying to him regarding his activities while on leave because Stallings denied stating
to Stralka that he moved his father while on FMLA leave and (2) Stralka began
looking into Stallings's use of leave only three days after Stallings returned from
leave and terminated him for "calling in FMLA for non-FMLA reasons."

       As we review Stallings's retaliation claim, we are mindful that we do not "sit
as super-personnel departments reviewing the wisdom or fairness of the business
judgments made by employers, except to the extent those judgments involve
intentional discrimination." Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781
(8th Cir. 1995). Instead, this court's task is to "decide whether the record reveals
issues of material fact that would prevent the entry of summary judgment in favor of
[the defendant]." Wallace, 415 F.3d at 860.



                                         -17-
       Construing the facts in light most favorable to Stallings, we find that a genuine
issue of material fact exists as to whether Stallings told his employer that he intended
to take FMLA leave both to move his terminally ill father and assist with his father's
personal and medical needs.4 Stallings testified that he informed Groninger that he
intended to take FMLA leave to move his father and to provide for this father's care.
He also testified that while the plans to move his father changed shortly after his
FMLA leave commenced, he still provided for his father's needs by cutting the grass,
painting, retrieving his father's medicine, dressing his father, cooking for his father,
driving his father, and paying his father's bills. Stallings admits telling Stralka that he
did not move his father; however, he also maintains that he also told Stralka that he
provided for his father's needs during his FMLA leave.

       Therefore, if Stallings told his employer of his twofold mission prior to taking
his FMLA leave and subsequently confirmed to his employer that he did provide for
his father's needs while on FMLA leave, then Stallings's failure to move his father
would not justify the defendants in reasonably believing that Stallings was lying
about why he took FMLA leave.

        Because the court's "function is not [itself] to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
trial," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), we hold that the
district court erred in granting summary judgment to Hussmann and Groninger on
Stallings's FMLA retaliation claim.




      4
        Because we find a genuine issue of material fact exists regarding whether
Stallings told his employer that he intended to take FMLA leave both to move his
terminally ill father and assist with his father's personal and medical needs, we hold
that the district court did not err in denying Stallings's motion for partial summary
judgment.

                                           -18-
                                    III. Conclusion
       Accordingly, we hold that while the district court did not err in granting
summary judgment to Hussmann and Groninger on Stalling's FMLA interference
claim, it did abuse its discretion in applying judicial estoppel and erred in granting
summary judgment to Hussmann and Groninger on Stalling's retaliation claim.
Therefore, we reverse the district court and remand for proceedings consistent with
this opinion.
                        ______________________________




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