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

                             FOR THE TENTH CIRCUIT                       October 13, 2015
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
CHERYL GABRIEL,

      Plaintiff - Appellant,

v.                                                        No. 15-1004
                                              (D.C. No. 1:13-CV-02261-REB-CBS)
COLORADO MOUNTAIN MEDICAL,                                 (D. Colo.)
P.C.; DR. BROOKS BOCK,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and McHUGH, Circuit Judges.
                 _________________________________

      Cheryl Gabriel appeals the district court’s entry of summary judgment in favor

of her former employer, Colorado Mountain Medical, P.C. (CMM) and its CEO

Dr. Brooks Bock, on her claim that CMM violated her rights under the Family

Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I.     Background

       Viewing the facts in the light most favorable to Ms. Gabriel, see Brown v.

ScriptPro, LLC, 700 F.3d 1222, 1224 (10th Cir. 2012), the record establishes the

following:

       Beginning in 2007, CMM employed Ms. Gabriel as a clinical assistant. In

2010, Ms. Gabriel took on a second, part-time job with a local ambulance company,

which sometimes required her to work a 24-hour shift immediately before reporting

to work at CMM. There were no documented performance issues at CMM related to

her ambulance job until she began suffering anxiety attacks in 2012. Between

October 31 and December 17, 2012, Ms. Gabriel had anxiety attacks at work that

required her to take unplanned breaks several times per week. Her coworkers

covered for her, but were concerned for patient safety. As a result of the anxiety

attacks, Ms. Gabriel took two weeks of FMLA leave in late December 2012.

       Ms. Gabriel returned to work at CMM part-time from December 29, 2012,

until January 8, 2013, and then she increased to a full-time schedule. Ms. Gabriel

also continued to work for the ambulance company and sometimes worked 24-hour

shifts immediately before reporting to her CMM job. She again suffered anxiety

attacks, and on one occasion, Ms. Gabriel phoned her CMM supervisor while

suicidal. Ms. Gabriel also reported to other CMM employees that she had acquired a

gun.

       On February 7, 2013, Ms. Gabriel met with Dr. Bock and other CMM

personnel to discuss her job performance and mental-health issues. As memorialized

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in a memorandum dated that day, CMM informed Ms. Gabriel that her work

performance was unsatisfactory for the following reasons:

      Her demeanor and appearance are frequently unprofessional, she often
      times appears to be tired, is forgetful, at times can be easily distracted
      and frequently requires other clinical staff to complete her duties. It is
      the company’s understanding that C Gabriel has a second job with an
      ambulance company and she reports many days of continued work and
      on occasion has reported that prior to coming to work for CMM she has
      just worked a 24 hour shift for the ambulance company. . . . [I]t is the
      expectation of CMM that she present to her work assignments after
      adequate periods of rest and that she will likely need to modify her
      schedule with the ambulance company.
Aplt. App. at 83. The memorandum further noted Ms. Gabriel’s negative attitude and

the concerns of other employees that she had acquired a gun. CMM directed her to

take more FMLA leave and informed her that she might not be reinstated, noting that

the decision whether to reinstate “will be entirely in the hands of CMM management

personnel.” Id.

      Ms. Gabriel took FMLA leave as directed by CMM. Before returning to work,

she submitted a fitness-for-duty certification from her psychiatrist stating that she

could return to work on March 21, 2013. On March 19, 2013, Ms. Gabriel again met

with Dr. Bock and CMM personnel. CMM understood that Ms. Gabriel intended to

continue working at the ambulance job, including 24-hour shifts, although

Ms. Gabriel contends she was merely negotiating about her schedule at the

ambulance job. After the meeting, CMM terminated Ms. Gabriel’s employment for

the reasons stated in the February 7 memo: documented performance deficiencies,

her refusal to stop working 24-hour shifts at the ambulance company immediately


                                            3
before reporting for work at CMM, and other employees’ concerns that she had

acquired a gun.

       Ms. Gabriel filed suit under an FMLA interference theory, see 29 U.S.C.

§ 2615(a)(1), because CMM refused to reinstate her to her prior position after her

FMLA leave.1 CMM moved for summary judgment. The district court initially

denied the motion, but on reconsideration granted summary judgment in favor of

CMM. Ms. Gabriel appeals, arguing that CMM’s failure to restore her to her prior

position in spite of her psychiatrist’s fitness-for-duty certification violated the

FMLA.

II.    Analysis

       “We review the district court’s grant of summary judgment on the FMLA

claim de novo, applying the same legal standard used by the district court.”

McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1107 (10th Cir. 2002).

Summary judgment is appropriate “if the movant shows that 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).

       The FMLA “provides that eligible employees of certain employers have the

right to take unpaid medical leave for a period of up to twelve work weeks in any

twelve month period for a serious health condition as defined by the Act.”

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


       1
         Ms. Gabriel brought additional claims that were dismissed by stipulation of
the parties.
                                             4
see generally 29 U.S.C. § 2612. Under the FMLA, an employee is entitled to

reinstatement to her previous position upon her return from leave. Section

2614(a)(1) states: “[A]ny eligible employee who takes leave under section 2612 of

this title for the intended purpose of the leave shall be entitled, on return from such

leave . . . to be restored by the employer to the position of employment held by the

employee when the leave commenced.” 29 U.S.C. § 2614(a)(1).

      “[A]n interference claim arises when an adverse employment decision is made

before the employee has been allowed to take FMLA leave or while the employee is

still on FMLA leave.” Dalpiaz v. Carbon Cty., 760 F.3d 1126, 1132 (10th Cir.

2014). To establish an interference claim, “an employee must show that (1) [she]

was entitled to FMLA leave, (2) an adverse action by [her] employer interfered with

[her] right to take FMLA leave, and (3) this adverse action was related to the exercise

or attempted exercise of the employee’s FMLA rights.” Brown, 700 F.3d at 1226.

“Even if [the employee] shows these elements, the [employer] will still prevail if it

shows that [the employee] would have been dismissed regardless of [her] request for,

or taking of, FMLA leave.” Sabourin v. Univ. of Utah, 676 F.3d 950, 958 (10th Cir.

2012) (internal quotation marks omitted). The parties agree that the only disputed

issue is whether CMM’s decision to discharge Ms. Gabriel was related to her taking

FMLA leave.

      Ms. Gabriel contends that because CMM knew about her job-performance

problems before she went on FMLA leave, CMM is foreclosed from claiming her

discharge was not related to her taking leave. She relies on McBride to argue that

                                            5
past work-related problems may justify refusing to restore the employee to her prior

position only if the employer was unaware of the problems before the employee went

on leave. See McBride, 281 F.3d at 1102 (noting that during the employee’s FMLA

leave, her supervisor “discovered several problems with Ms. McBride’s job

performance of which he was not previously aware”). But McBride’s affirmance of

the summary judgment granted to the employer did not turn on the fact that the

employee’s job-performance deficiencies were discovered during her FMLA leave.

See id. at 1108 (rejecting plaintiff’s argument that she was not reinstated due to

performance problems caused by her illness and was not given an opportunity to

show improved job performance when she was not ill). And in other cases we have

affirmed judgments in the employer’s favor where the employee’s unsatisfactory job

performance was discovered before the employee went on FMLA leave or where the

employee’s actions during FMLA leave warranted dismissal. See, e.g., Renaud v.

Wyo. Dep’t of Family Servs., 203 F.3d 723, 732 (10th Cir. 2000) (employee was fired

during his FMLA leave because he had gone to work drunk before taking leave);

Dalpiaz, 760 F.3d at 1130 (employee was fired while on FMLA leave for, among

other things, failing to comply with her employer’s requirements for documenting

FMLA leave); Sabourin, 676 F.3d at 961 (employee was fired “for his disloyal and

obstructive conduct while on FMLA leave”). Moreover, even if “an employee’s

work-performance problems are related to the same illness that gave rise to FMLA

leave, the employee may still be terminated based on [her] work-performance

problems, regardless of the indirect causal link between the FMLA leave and the

                                           6
adverse decision.” Dalpiaz, 760 F.3d at 1132. Therefore, the fact that CMM knew of

Ms. Gabriel’s job-performance problems before she went on FMLA leave is not

determinative of whether her discharge was due to her exercise of FMLA leave.

      Ms. Gabriel also contends that CMM violated the FMLA by refusing to

reinstate her despite her psychiatrist’s fitness-for-duty certification. She

characterizes CMM’s position as substituting its opinion on whether her mental

condition was cured for that of her psychiatrist. The issue, however, is not whether

Ms. Gabriel was mentally fit for work, but instead whether CMM’s decision to

terminate her employment was based on her taking FMLA leave. Even if

Ms. Gabriel had recovered from her mental-health problems, the FMLA does not

prohibit CMM from terminating her for the work deficiencies that resulted from those

problems. “[T]he FMLA does not protect an employee from performance problems

caused by the condition for which FMLA leave is taken, nor does it require that an

employee be given an opportunity to show improved job performance when not ill.”

McBride, 281 F.3d at 1108.

      Ms. Gabriel further argues that the FMLA’s requirement that she be restored to

her former job required CMM to allow her to continue working at her ambulance job.

She contends that if doing so later became a problem, CMM could then require her to

adjust her schedule. “However, our role is to prevent unlawful hiring practices, not

to act as a super personnel department that second guesses employers’ business

judgments.” Dalpiaz, 760 F.3d at 1133 (brackets and internal quotation marks

omitted). The inquiry, therefore, is not whether the ambulance job interfered with

                                            7
her work at CMM, but “whether [CMM] terminated her because it sincerely, even if

mistakenly, believed [her work performance at CMM suffered because of her

ambulance job].” Id. at 1134.

      The record shows that CMM’s reasons for terminating Ms. Gabriel’s

employment, as set forth in the February 7, 2013, memo, were poor job performance,

a negative attitude, reporting for duty after working a 24-hour shift at her ambulance

job, and other employees’ concerns that she had acquired a gun. “[A]n employee

who requests FMLA leave [has] no greater protection against his or her employment

being terminated for reasons not related to his or her FMLA request than he or she

did before submitting the request.” Renaud, 203 F.3d at 732 (internal quotation

marks omitted). “[N]o evidence suggests that the stated reasons for termination

(which do not include [taking FMLA leave]) were not the real ones,” Brown,

700 F.3d at 1228, or that CMM “fabricated [the] reasons given for [Ms. Gabriel’s]

termination in order to justify an attempt to interfere with [her] FMLA leave,”

Dalpiaz, 760 F.3d at 1134. Although Ms. Gabriel argues the real reasons for her

termination can only be decided by a jury, we agree with the district court that no

reasonable juror could find Ms. Gabriel’s termination was related to her request for

FMLA leave. See Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1009 (10th Cir.

2011) (discussing employee’s failure to come forward with evidence to contradict the

employer’s reasons for terminating her, concluding that “no reasonable juror could

deduce from the . . . evidence that Twigg’s termination was related to her request for



                                           8
an FMLA leave” (brackets and internal quotation marks omitted)). Therefore,

Ms. Gabriel’s interference claim fails as a matter of law.

       Ms. Gabriel’s overarching argument is that an employer violates the FMLA if

it does not reinstate the employee, no matter what the reason. See, e.g., Aplt.

Opening Br. at 31. But the FMLA does not impose strict liability. See Metzler v.

Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1180 (10th Cir. 2006) (“Section

2615(1)(1) is . . . not a strict liability statute.”); 29 U.S.C. § 2614(a)(3)(B) (“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 reinstatement or to

other benefits and conditions of employment than if the employee had been

continuously employed during the FMLA leave period.”). Ms. Gabriel points to no

evidence suggesting that CMM’s decision to terminate her employment was based on

her FMLA leave. This circumstance “breaks [her] alleged causal chain.” Metzler,

464 F.3d at 1181. Summary judgment in CMM’s favor was therefore appropriate.

III.   Conclusion

       The district court’s judgment is affirmed.


                                             Entered for the Court


                                             Carolyn B. McHugh
                                             Circuit Judge


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