     Case: 16-60125      Document: 00513706828         Page: 1    Date Filed: 10/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                    No. 16-60125
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        October 5, 2016
                                                                           Lyle W. Cayce
SAMMY MOZINGO,                                                                  Clerk


              Plaintiff - Appellant

v.

OIL STATES ENERGY, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:14-CV-924


Before HIGGINBOTHAM, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff Sammy Mozingo appeals the grant of summary judgment in
favor of Defendant Oil States Energy, Inc. (“Oil States”) on his claims under
the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”).
Because the statute of limitations bars Mozingo’s claim, we AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 16-60125        Document: 00513706828           Page: 2     Date Filed: 10/05/2016



                                        No. 16-60125
                                       I. Background
       Mozingo worked for Oil States as a field supervisor beginning in
November 2010. He worked 30 days “on,” and 10 days “off.” His on days were
spent in Pennsylvania, and on his days off he would return to Mississippi.
Mozingo’s immediate supervisor was Quentin Breaux, and his regional
manager was Tim Haynes.
       From January to March 2012, Mozingo took FMLA leave to care for his
wife. On May 15, 2012, Mozingo learned that his father, who was in declining
health, was in need of help.             According to his declaration submitted in
opposition to summary judgment, Mozingo notified Haynes that he would need
FMLA leave to take care of his father. 1 Mozingo also spoke to Rhonda Totten
in Human Resources, who told Mozingo that his leave was covered by FMLA.
Mozingo’s return-to-work date was left open. 2
       Once he returned to Mississippi, Mozingo visited his father, and the two
argued. Mozingo’s father subsequently alleged that Mozingo had assaulted
him, and Mozingo was arrested and given a June 13 court date. Mozingo
contacted Breaux sometime between May 18 and May 23 to let him know what
happened and that he would return to work after the court date. Haynes called
Mozingo on June 1, 2012, and terminated him for failing to report to work.



       1 In his deposition, Haynes stated that he proposed allowing Mozingo to take “his days
off early, take care of his family, . . . and then come back.”
       2 On May 15, 2012, Haynes sent Mozingo an email stating, “[y]our scheduled days off
have been moved up, for this time only, to start with your flight home on May 16, 2012, and
to return to work on May 25. I require a phone call to your Product Line Manager, Quentin
Breaux, on May 23, 2012[,] to confirm you will be back at work and an estimated time you
will be arriving.” The email goes on to state, “[b]y now you should have been contacted by
our HR representative to discuss the possibility of FMLA . . . , if it becomes necessary for you.
Please follow their[] and the packet instructions completely if this is needed. If you fall within
the parameters of this process and you are in need of the program, by all means, use it.”
Mozingo claimed that he never received the email because he did not have access to the email
address to which it was sent.
                                                2
    Case: 16-60125     Document: 00513706828       Page: 3   Date Filed: 10/05/2016



                                  No. 16-60125
      On December 1, 2014—more than two years after his termination—
Mozingo sued Oil States for alleged violations of the FMLA. Oil States moved
for summary judgment on the ground that there was no genuine dispute of
material fact regarding whether any alleged FMLA violation was willful, and
accordingly the dispute was time barred. 3 The district court granted the
motion, and Mozingo appealed.
                     II. Jurisdiction and Standard of Review
      We have jurisdiction over this timely appeal of a final judgment. 28
U.S.C. § 1291.
      We review the district court’s grant of a motion for summary judgment
de novo and apply the same standards as the district court.              DePree v.
Saunders, 588 F.3d 282, 286 (5th Cir. 2009).             Summary judgment is
appropriate where “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “Only
disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
      On summary judgment, we review the facts in the light most favorable
to the nonmovant. Lincoln Gen. Ins. Co. v. Aisha’s Learning Ctr., 468 F.3d 857,
858 (5th Cir. 2006).     Indeed, “[d]oubts are to be resolved in favor of the
nonmoving party, and any reasonable inferences are to be drawn in favor of
that party.” Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir. 2001).
                                 III. Discussion
      Under the FMLA, a covered employer may not “interfere with, restrain,
or deny the exercise of or the attempt to exercise, any [FMLA leave] right.” 29


      3 In the alternative, Oil States maintained that summary judgment was proper
because Mozingo was not entitled to FMLA leave. We do not address this contention on
appeal.
                                         3
    Case: 16-60125        Document: 00513706828   Page: 4   Date Filed: 10/05/2016



                                   No. 16-60125
U.S.C. § 2615(a). The FMLA also “protects employees from retaliation or
discrimination for exercising their rights under the FMLA.” Mauder v. Metro.
Transit Auth. of Harris Cty., 446 F.3d 574, 580 (5th Cir. 2006). The general
statute of limitations for FMLA violations is two years, unless the cause of
action alleges a willful violation, in which case the statute of limitations is
three years. 29 U.S.C. § 2617(c). There is no dispute that Mozingo filed his
claim more than two years—but less than three years—after the alleged
violation. Accordingly, to survive summary judgment, he must enter evidence
of a willful violation.
      The FMLA does not define willful. To determine whether conduct is
willful, courts have looked to case law from other employment contexts. E.g.,
Hillstrom v. Best W. TLC Hotel, 354 F.3d 27, 33 (1st Cir. 2003) (“There is every
reason to apply [the] FLSA standard for willfulness to FMLA claims.”).
Relying in part on case law under the FLSA, we have determined that “to
establish a willful violation of the FMLA, a plaintiff must show that his
employer ‘either knew or showed reckless disregard for the matter of whether
its conduct was prohibited by statute.’” See Henson v. Bell Helicopter Textron,
Inc., 128 F. App’x 387, 393 (5th Cir. 2005) (quoting Hillstrom, 354 F.3d at 33
(citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988))); see also
Nero v. Indus. Molding Corp., 167 F.3d 921, 929 n.4 (5th Cir. 1999) (noting in
an FMLA case that the willful conduct standard under the FLSA requires
reckless disregard). “A negligent violation is not a willful violation, and an
unreasonable violation does not necessarily constitute a willful violation.”
Steele v. Leasing Enters., Ltd., 826 F.3d 237, 248 (5th Cir. 2016) (citation
omitted) (discussing FLSA violations).
      Mozingo’s argument that Oil States’s conduct was willful is largely based
on its alleged failure to send him the proper forms as required by 29 C.F.R.
§ 825.300. Although Oil States entered the forms as evidence in support of its
                                         4
     Case: 16-60125      Document: 00513706828        Page: 5    Date Filed: 10/05/2016



                                     No. 16-60125
motion for summary judgment, Mozingo claimed that Oil States never sent
them. Construing the facts in favor of Mozingo, we will assume that Oil States
did not send the forms. Mozingo claims a jury could determine that Oil States
failed to send the forms due to “a conscious decision to wait and see” whether
Mozingo actually required FMLA leave.             In support of this argument, he
maintains that Haynes restructured his “off” days to cover the absence, with
the option to apply for FMLA leave thereafter if he needed it.
      Mozingo cites no authority in support of the notion that such conduct
amounts to a willful violation. Furthermore, he has identified no evidence that
Oil States either knew or showed reckless disregard as to whether its wait-
and-see approach to sending the paperwork violated the FMLA. 4 Compare
Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 553
(5th Cir. 2009) (affirming district court’s determination that there was no
evidence of willfulness in the context of the FLSA where the plaintiff provided
no evidence that the defendant actually knew its pay structure violated the
FLSA or ignored or failed to investigate complaints), with Singer v. City of
Waco, 324 F.3d 813, 821–22 (5th Cir. 2003) (upholding a jury’s finding of
willfulness in the context of the FLSA where the employer admitted that it was
aware that its employees were being paid incorrectly and the employer’s
attorney advised the employer not to investigate the matter), and Reich v. Bay,
Inc., 23 F.3d 110, 117 (5th Cir. 1994) (upholding a district court’s finding of
willfulness in the context of the FLSA where a government representative
notified the employer that its overtime payment practices violated the FLSA
and the employer continued the practices without further investigation).




      4 “The party opposing summary judgment is required to identify specific evidence in
the record and to articulate the precise manner in which that evidence supports his or her
claim.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
                                            5
    Case: 16-60125   Document: 00513706828     Page: 6   Date Filed: 10/05/2016



                                No. 16-60125
Accordingly, the district court was correct to apply the two-year statute of
limitations.
      Because Mozingo filed his lawsuit more than two years after the alleged
FMLA violation, his claims are time barred. Accordingly, the district court’s
grant of summary judgment was proper.
      AFFIRMED.




                                     6
