    Case: 19-30525   Document: 00515363771    Page: 1   Date Filed: 03/30/2020




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

                                                                      FILED
                               No. 19-30525                     March 30, 2020
                                                                 Lyle W. Cayce
                                                                      Clerk


LEAH MICHELLE AMEDEE,

                                        Plaintiff–Appellant,

versus

SHELL CHEMICAL, L.P., Geismar Plant,

                                        Defendant–Appellee.




               Appeal from the United States District Court
                   for the Middle District of Louisiana




Before SMITH, HO, and OLDHAM, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     The day after Shell Chemical, L.P. (“Shell”), formally disciplined Leah
Amedee for violating its attendance policy—and warned her that additional
violations could result in termination—she missed her scheduled shift. Why?
Because she drove drunk in the middle of the night, wrecked her truck, and
got arrested. Amedee never returned to work. Instead, she applied for Family
and Medical Leave Act (“FMLA”) leave. After a brief investigation—and while
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                                      No. 19-30525
Amedee was still on leave—Shell fired her.

      Amedee sued Shell for (1) interfering with her FMLA rights by termin-
ating her while she was on leave, (2) failing to restore her to an equivalent
position following FMLA leave, (3) discriminating against her on the basis of
her disability in violation of the Americans with Disabilities Act (“ADA”), and
(4) failing to make reasonable ADA accommodations. After the close of discov-
ery, Shell moved for summary judgment, which the court granted. We affirm.

                                           I.
      Amedee worked as a process technician for Shell from 2012 until her
termination in 2016. She was subject to Shell’s attendance policy, which re-
quires that employees “be at work on time; make every reasonable effort to
minimize the amount of time away from work; notify your immediate super-
visor promptly when not able to be at work as scheduled; and comply with the
medical documentation/notification requirements set forth within the policy.”
Formal violations—dubbed “chargeable offenses” or “occurrences”—“include
absences that do not qualify for FMLA leave or are otherwise unexcused, and
an employee’s failure to properly notify the supervisor that he/she is going to
miss all or part of his/her shift.”

      Shell employees are subject to three successive levels of formal discipline
after they exceed two offenses in a rolling twelve-month period and receive a
counseling session. In ascending order, discipline includes an oral reminder
documented in writing, a written reminder, and decision-making leave.

      According to Shell, between February 22, 2015, and February 29, 2016,
Amedee was absent from work without FMLA approval, failed to report that
she was off work properly, or was significantly late for her shift at least nine



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                                     No. 19-30525
times. 1 In July 2015, Amedee received an oral reminder when she didn’t show
up for her shift without informing her supervisor. That reminder was mem-
orialized in writing, which cautioned that “[a]ny further incident or job-related
problems could result in further disciplinary actions up to and including ter-
mination of your employment.”            Amedee signed to acknowledge that she
received and understood that warning.

      On September 29, 2015, after Amedee incurred an additional non-
FMLA-approved absence, her supervisors issued her the next level of formal
discipline, a written reminder. Amedee objected that the FMLA should have
covered some of her absences and that she needed to resolve issues with her
medical certifications. Her supervisors deferred the written reminder to give
her time to contact her doctors and the Reed Group to correct any errors. 2

      In February 2016, after additional occurrences, Amedee’s supervisors
contacted the Reed Group to determine whether she had submitted paperwork
to convert prior occurrences to protected FMLA leave. At that point, Amedee
had still not corrected any of the purported deficiencies in her paperwork, and
the Reed Group did not approve the previously identified absences as FMLA-
qualifying leave.

      As a result, on March 10, Shell issued Amedee the written reminder in a


      1  February 22, 2015; April 8, 2015; June 22, 2015; July 16, 2015; September 4, 2015;
November 9, 2015; February 10, 2016; February 22, 2016; and February 29, 2016. Amedee
disputes some of those dates. For example, she claims that she missed work on November 9,
2015, and left work early on July 16, 2015, for medical appointments that should have been
classified as “non-FMLA Occupational Health Issue[s].” Shell retorts that Amedee has not
directed the court to any admissible evidence to support her arguments.
       On the other hand, Shell concedes that Amedee’s April 8, 2015, absence was later
recorded as a personal day without pay. Amedee missed work that day after getting jailed
in the middle of the night on charges of careless operation and DWI.
      2Shell uses the Reed Group, a third-party administrator, to process requests for
FMLA leave.
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                                 No. 19-30525
disciplinary meeting with her supervisors and a human resources representa-
tive. That reminder, which Amedee signed, identified her attendance viola-
tions and provided guidance for her conduct moving forward. It also explicitly
warned once again that “[a]ny further lack of adherence to the Attendance
Policy could result in further disciplinary actions up to and including termina-
tion of your employment.”

      That night, Amedee drove drunk and wrecked her truck. She called the
supervisor on duty, Harlan Hart, a few hours before her 4 a.m. shift, and in-
formed him that she crashed her truck and might not make it to work. After
hanging up, Hart drafted an email transcribing the call. In that email, Hart
also wrote, “I personally think Leah was drunk and if she shows up at 4am she
should be evaluated before she is allowed to work.” Not long after the call,
Amedee was arrested for a DWI. She didn’t make it to work.

      Amedee never returned to Shell. A few days after missing her shift, she
applied to the Reed Group for FMLA leave for anxiety. She did not, however,
request FMLA approval for her March 11 absence.

      After a brief investigation into Amedee’s absence, Shell management
decided to terminate Amedee. The company could not reach her by phone, so
it mailed her termination letters on March 30 and April 8.

      Amedee sued Shell for (1) failing to restore her to an equivalent position
following FMLA leave under 29 U.S.C. § 2615(a)(1); (2) interfering with her
FMLA rights by terminating her while she was on FMLA-protected leave
under 29 U.S.C. § 2615(a)(2); (3) terminating her because of her disability
under 42 U.S.C. § 12112(a) of the ADA; and (4) failing to make reasonable
accommodations and denying employment opportunities on the basis of a
disability under § 12112(b)(5). Following the close of discovery, Shell moved
for summary judgment on all claims, which the court granted.
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                                              II.
       The FMLA provides two distinct protections for employees, one pro-
scriptive and one prescriptive. 3 The proscriptive provision protects employees
from retaliation or discrimination for exercising their FMLA rights. Haley,
391 F.3d at 649. “Claims for violations of [those] rights are brought under
29 U.S.C. § 2615(a)(2).” Id.

       The “prescriptive provisions,’ by contrast, “create a series of entitlements
or substantive rights.” Shirley, 726 F.3d at 681. See Mauder, 446 F.3d at 580.
Under the FMLA, eligible employees may take up to twelve weeks of leave in
a twelve-month period to attend to various family and medical issues.
29 U.S.C. § 2612(a)(1). Upon an employee’s return from a qualified leave, em-
ployers must restore the employee to either “the position of employment held
by the employee when the leave commenced” or “an equivalent position with
equivalent employment benefits, pay, and other terms and conditions of em-
ployment.” Id. § 2614(a)(1). Claims for failure to restore are also known as
“entitlement claims” and are brought under § 2615(a)(1). See, e.g., McArdle v.
Dell Prods., L.P., 293 F. App’x 331, 334 (5th Cir. 2008) (per curiam).

                                              A.
       Retaliation claims for exercising FMLA rights are subject to the Mc-
Donnell Douglas burden-shifting framework. To make a prima facie case of
retaliatory discharge, the employee must show that “(1) he engaged in a pro-
tected activity, (2) the employer discharged him, and (3) there is a causal link
between the protected activity and the discharge.” 4                  “Once an employee


       See, e.g., Shirley v. Precision Castparts Corp., 726 F.3d 675, 681 (5th Cir. 2013);
       3

Mauder v. Metro. Transit Auth. of Harris Cty., 446 F.3d 574, 580 (5th Cir. 2006); Haley v. All.
Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004).
       4 Tatum v. S. Co. Servs., 930 F.3d 709, 713 (5th Cir. 2019) (alterations omitted)
(quoting Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005)). At the
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propounds a prima facie case of interference or retaliation, the burden shifts
to the employer to articulate a legitimate, nondiscriminatory reason for the
adverse employment action.” Richardson, 434 F.3d at 332. “Thereafter, ‘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.” Tatum,
930 F.3d at 332−33.

       Amedee ignores Shell’s proffered justification for termination and con-
tends that “[i]n the absence of a legitimate reason for termination, Plaintiff’s
FMLA interference claims survive.” As discussed above, the day after Ame-
dee’s supervisors warned her that she could be fired if she violated the atten-
dance policy, she did so. “[A]s should go without saying, an employee’s failure
to show up for work is a legitimate reason for firing her.” Trautman v. Time
Warner Cable Tex., L.L.C., 756 F. App’x 421, 428 (5th Cir. 2018) (per curiam)
(collecting cases). That Amedee missed work because she was incarcerated for
her second DWI within a year further legitimizes Shell’s justification.

       Amedee also contends that she has “provide[d] the reasonable factfinder
with evidence that none of the predicate ‘occurrences’ was justified.” But to
establish her claim, Amedee must demonstrate not just that Shell fired her
based on justified absences, but also that Shell’s error was a pretext for dis-
crimination. 5 Amedee has not produced evidence that Shell’s justification was
pretextual. Additionally, Amedee was provided an opportunity to correct her
medical certifications and obtain FMLA approval for the disputed absences,


district court, Amedee asserted that the mixed-motives framework applied. On appeal,
however, she does not reference mixed motives, so any argument under that framework is
waived. See United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010).
       5 See Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005) (“[E]vidence
that the employer’s investigation merely came to an incorrect conclusion does not establish a
racial motivation behind an adverse employment decision. Management does not have to
make proper decisions, only non-discriminatory ones.”).
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                                        No. 19-30525
but she failed to do so.

       Finally, although her brief lacks any legal analysis on the point, Amedee
seems to contend that she produced evidence that Shell’s justification was pre-
textual by alleging that her second-tier supervisor Rick Guba had “an aversion
to workers being out sick” and therefore initiated a campaign “to ensure her
termination.” Even if admissible, none of the evidence Amedee provides sug-
gests that Guba took any discriminatory actions toward her. Nor does she pro-
duce any evidence that Guba was involved in Shell’s decision to terminate her.
On the contrary, Shell produced evidence that Guba was not involved. Shell’s
Human Resources Account Manager listed the eight people—including
himself—who were involved in the decision to terminate; Guba was not one of
them. Guba also testified that he was not involved. 6

                                               B.
       Amedee avers that Shell violated the FMLA by failing to restore her to
an equivalent position at the end of her leave. But an employee’s right to re-
turn to work after a qualified absence is not unlimited. 7 Instead, “an employee


       6 Amedee asserts that the court abused its discretion by excluding several documents
as unauthenticated. The court also excluded several documents as hearsay, but Amedee
doesn’t contend that that ruling was erroneous on appeal, so that argument is now waived.
See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). Amedee offers no support or legal
authority for her contention that the court erred in excluding documents for lack of
authentication. Moreover, even if the court did abuse its discretion, its error wouldn’t affect
the result and is therefore harmless. See United States v. Ragsdale, 426 F.3d 765, 774–75
(5th Cir. 2005) (“If this court finds an abuse of discretion in admitting or excluding evidence,
this court will review the error under the harmless error doctrine, affirming the judgment,
unless the ruling affected substantial rights of the complaining party.” (quotation marks
omitted)).
       7 See, e.g., 29 U.S.C. § 2614(a)(3) (“Nothing in this section shall be construed to entitle
any restored employee to . . . any right, benefit, or position of employment other than any
right, benefit, or position to which the employee would have been entitled had the employee
not taken the leave.”); 29 C.F.R. § 825.216(a) (“An employee has no greater right to re-
instatement . . . than if the employee had been continuously employed during the FMLA leave
period.”); Shirley, 726 F.3d at 682 (noting the numerous authorities supporting that view).
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                                        No. 19-30525
must actually be entitled to the position to which he seeks reinstatement.”
Shirley, 726 F.3d at 682. “[A]nd an employer may challenge that entitlement
by offering evidence that the employee would have lost his position even had
he not taken FMLA leave.” Id. (citation omitted).

       Because Shell produced evidence that Amedee would have been lawfully
terminated had she not taken leave, she had no right to return to work.
Employees cannot immunize themselves from legitimate termination by tak-
ing FMLA leave.

                                              III.
       Like the FMLA retaliation claim, the McDonnell Douglas burden-
shifting framework applies to Amadee’s ADA claims for discriminatory termin-
ation. See Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 479 (5th
Cir. 2016). Applying that framework, the court held that Amedee failed to
make a prima facie case because she did not present admissible evidence estab-
lishing that she was disabled or that Shell regarded her as disabled. 8 The court
also held that even if Amedee had made a prima facie case, her argument
would still fail for the same reasons her FMLA retaliation claim fails.

       On appeal, Amedee asserts that she submitted a prima facie case. But
even if she is correct, her claim still fails. As discussed above, she failed to
demonstrate that Shell’s legitimate, non-discriminatory reason for firing her
was pretextual.




(cleaned up)).
       8 “To establish a prima facie discrimination claim under the ADA, a plaintiff must
prove: (1) that he has a disability; (2) that he was qualified for the job; [and] (3) that he was
subject to an adverse employment decision on account of his disability.” EEOC v. LHC Grp.,
Inc., 773 F.3d 688, 697 (5th Cir. 2014) (quoting Zenor v. El Paso Healthcare Sys., Ltd.,
176 F.3d 847, 853 (5th Cir. 1999)).
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                                  No. 19-30525
                                        IV.
      Amedee contends that Shell violated the ADA by failing to provide a
reasonable accommodation. She says that she requested a $100 chair that
would suit her better for the sedentary position she began in January 2015.
According to Amedee, Shell terminated her instead of ordering the chair.

      The ADA prohibits covered employers from “discriminat[ing] against a
qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). Discrim-
ination includes “not making reasonable accommodations to the known phys-
ical or mental limitations of an otherwise qualified individual with a disability
. . . unless such covered entity can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of such covered
entity.” Id. § 12112(b)(5)(A). “Thus, a plaintiff must prove the following stat-
utory elements to prevail in a failure-to-accommodate claim: (1) the plaintiff is
a ‘qualified individual with a disability;’ (2) the disability and its consequential
limitations were ‘known’ by the covered employer; and (3) the employer failed
to make ‘reasonable accommodations’ for such known limitations.” Feist v. La.,
Dep’t of Justice, Office of the Attorney Gen., 730 F.3d 450, 452 (5th Cir. 2013).

      The district court held that Amedee “has not made a showing that she is
disabled or regarded as disabled.” Accordingly, Shell “is not obligated to rea-
sonably accommodate Plaintiff’s purported physical impairment.”            Amedee
claims that the court erred because it (1) dismissed the claim sua sponte and
(2) ignored Amedee’s evidence that Shell regarded her as having a disability.

      As the district court noted, Shell’s “motion for summary judgment d[id]
not move for dismissal of or in any way address [Amedee’s] claim for failure to
make a reasonable accommodation under the ADA.” Amedee nevertheless
addressed that issue in her responsive briefing at the district court, in which
she set forth the standard and applicable elements of a failure to accommodate

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                                         No. 19-30525
claim in two brief paragraphs. Shell then countered in its reply.

       District courts may grant summary judgment sua sponte if the party
opposing summary judgment has notice. Delaval, 824 F.3d at 481. “Where a
district court fails to provide notice, the error is considered harmless if the
party opposed has no additional evidence anyway or if the appellate court
evaluates all of the additional evidence and finds no genuine issue of material
fact.” Id. (cleaned up). As with the plaintiff in Delaval, Amedee “did not file a
motion for reconsideration below, nor has [s]he described in briefing on appeal
any additional evidence that should have been considered by the district court
or explained why additional discovery was necessary.” Id. The district court’s
failure to provide notice is therefore harmless.

       Amedee asserts that because Shell regarded her as disabled, the court
erred in concluding that she hadn’t established a prima facie case. That argu-
ment is misguided: Whether Rick Guba—or anyone at Shell, for that matter—
regarded Amedee as disabled is irrelevant.                      To establish a failure-to-
accommodate claim, Amedee must demonstrate that she had a disability, not
just that she was regarded as disabled. 9 As Shell correctly points out, at no
point in her disjointed brief does Amedee contend that she was actually
disabled.

       AFFIRMED.




       9 See 29 C.F.R. § 1630.2(o)(4) (“A covered entity is required, absent undue hardship,
to provide a reasonable accommodation to an otherwise qualified individual who meets the
definition of disability under the ‘actual disability’ prong . . . , but is not required to provide
a reasonable accommodation to an individual who meets the definition of disability solely
under the ‘regarded as’ prong . . . .”); Newberry v. E. Tex. State Univ., 161 F.3d 276, 280 (5th
Cir. 1998) (“[A]n employer need not provide reasonable accommodation to an employee who
does not suffer from a substantially limiting impairment merely because the employer thinks
the employee has such an impairment.”).
                                               10
