     Case: 17-10872      Document: 00514694005         Page: 1    Date Filed: 10/23/2018




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

                                                                                FILED
                                      No. 17-10872                       October 23, 2018
                                                                           Lyle W. Cayce
MICHELLE JACKSON,                                                               Clerk


              Plaintiff - Appellant

v.

BNSF RAILWAY COMPANY,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:16-CV-695


Before REAVLEY, GRAVES, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:*
       BNSF Railway fired Michelle Jackson because it suspected she was
taking medical leave when she was not sick. We decide whether Jackson
presented a triable retaliation claim under the Family and Medical Leave Act.
                                             I.
       Jackson began working at BNSF in 2002. In late 2015, BNSF assigned
Jackson to be a Marketing Manager and relocated her from California to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 17-10872
Texas. She began reporting to Carrie Whitman. In the new position, Jackson
helped set the pricing for shipping certain commodities on the railroad and
developed a market strategy to increase those shipments.
      Jackson struggled in her new role.       In an attempt to address the
performance problems, Whitman prepared a performance improvement plan.
One week after receiving the plan, Jackson left work early and emailed
Whitman and Human Resources Director Kelli Courreges that she was “not
well,” that she was taking “sick time the remainder of the day,” that she had
an appointment to see a doctor, and that she would follow up when she had
more to communicate. Whitman replied: “So sorry to hear that! Take care!”
      That same day Jackson contacted BNSF’s Employee Assistance Program
(EAP). It referred her for an evaluation and notified her about the option of
short-term disability benefits. Courreges and Whitman were unaware that
Jackson had contacted the EAP. Jackson then emailed Courreges to inform
her that she was “not well to return back to work” and that MetLife—the
administrator of the disability benefits—“will be forwarding over the proper
documentation for [her] approval to be off on short-term disability . . . .”
Courreges responded that she hoped that Jackson felt better soon and noted
that MetLife would work with Jackson’s doctor to obtain the necessary
information. Courreges concluded her email: “Please just take care of yourself
and let us know when you and your doctor think it is the right time for you to
return.”
      A week after she left work, Jackson attended a Beyoncé concert in the
BNSF luxury suite at AT&T Stadium. Jackson had received the tickets from
BNSF before she went on medical leave. She attended with a coworker, and
other BNSF employees were in the suite.
      The next day at work, one of those employees mentioned to someone in
Whitman’s group that he saw Jackson at the concert even though she was on
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                                 No. 17-10872
medical leave.    This information made its way to Courreges.           Courreges
thought it was “an extremely poor choice for someone who is claiming they
can’t work at a job where they were already not performing.” She did not
understand how someone could not work but could go to a concert.
      Two days after the concert, Courreges left a voicemail for Jackson asking
to discuss her attendance at the Beyoncé concert. Jackson did not immediately
respond, but instead contacted the EAP. An EAP employee advised Jackson
that EAP could not contact her supervisor but that Jackson should.
      Three days after the voicemail was left (which included the weekend),
Jackson responded to Courreges with the following email:
            Kelli, good morning. Unfortunately, I haven’t been released
      yet by my doctor to meet, as soon as I am I’ll be more than happy
      to answer any questions at that time. I’m asking for a little
      patience during this time, thanks.
      That same morning, Courreges replied as follows:
            I need to talk to you by close of business today. . . . At this
      point, your employment may be terminated based upon your
      failure to communicate with me and/or your attendance at the
      Beyoncé concert at the BNSF suite on May 8 while you were off
      work on a medical leave.
      Jackson did not respond.     Courreges decided to terminate Jackson’s
employment.      She concluded that Jackson was abusing her medical leave
based on her attendance at the concert, refusal to discuss that attendance, and
taking leave soon after performance problems arose.
      Jackson sued in state court, alleging that her termination violated the
FMLA. After BNSF removed the case to federal court, Jackson added a state
law claim for disability discrimination. The district court granted summary
judgment in favor of the railroad on all claims.




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                                  No. 17-10872
                                       II.
      Jackson pursues two FMLA claims: an interference claim for denying
her leave and a retaliation claim alleging BNSF terminated her because she
exercised her right to leave. 29 U.S.C. § 2615(a)(1) (interference claim); id. §
2615(a)(2) (retaliation claim). She emphasizes that the interference claim does
not require any wrongful intent from the employer. DeVoss v. Sw. Airlines Co.,
903 F.3d 487, 491 (5th Cir. 2018); Nero v. Industries Molding Corp., 167 F.3d
921, 926–27 (5th Cir. 1999). On the other hand, as is typical for retaliation
claims, the FMLA version of that common employment law statute does.
DeVoss, 903 F.3d at 491; Mauder v. Metropolitan Transit Auth. of Harris
County, 446 F.3d 574, 583 (5th Cir. 2006).
        While it is true that an FMLA interference claim does not require a
showing of bad intent, it is also of course true that only an employee is entitled
to take leave. So if an employee is fired for a nonprohibited reason—say the
employer discovers that the employee was embezzling—then the right to
medical leave terminates when the employment ends. When an employee is
terminated after exercising her right to leave, the availability of any FMLA
relief thus typically turns on whether the fired employee can prove retaliation.
DeVoss, 903 F.3d at 491 (explaining in a similar context that “the nature of the
claim is more important than the label it is given”); Seeger v. Cincinnati Bell
Tel. Co., LLC, 681 F.3d 274, 282–83 (6th Cir. 2012) (concluding that the district
court properly treated “indistinguishable” FMLA interference and retaliation
claims as a retaliation claim); Stallings v. Hussmann Corp., 447 F.3d 1041,
1050–51 (8th Cir. 2006) (deciding that the district court properly consolidated
employee’s interference and retaliation claims as a retaliation claim). If she
can, then she should not have been fired and it follows that she retained the
leave rights that any other employee enjoys.          But if she cannot show
retaliation—that is, if the employer lawfully terminated her—then once she
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                                  No. 17-10872
was no longer an employee she had no leave rights to assert. Jackson thus
must show that her termination was unlawful because it was retaliation for
her taking medical leave. See DeVoss, 903 F.3d at 491 (holding that when the
crux of plaintiff’s claim is that she was fired “for taking (or attempting to take)
FMLA-eligible leave,” then the plaintiff must show retaliatory intent).
      The viability of that retaliation claims come down, as it often does, to
whether Jackson can show that the lawful reason the railroad articulated for
the firing is a pretext that masks its unlawful motive. See Harrelson v. Lufkin
Indus., 614 F. App’x 761, 764–65 (5th Cir. 2015). The lawful justification BNSF
cites is its concern that Jackson was not being honest about needing to take
leave. Even if it turns out there was a medical explanation for needing to take
leave yet being able to attend the concert, BNSF’s belief that leave was being
abused qualifies as a legitimate nonretaliatory reason if it had good-faith basis
for that belief. DeVoss, 903 F.3d at 492 (recognizing in an FMLA retaliation
case that an employer’s good-faith belief that an employee is being dishonest
in taking leave is a nonretaliatory reason). Jackson’s attendance at the concert
compounded     by    her   unwillingness    to   discuss    it    demonstrate   the
reasonableness of BNSF’s concern. So Jackson needs evidence showing that
this concern about leave abuse was actually a ruse.
      We agree with the district court that Jackson did not present such
evidence that would allow a jury to conclude that BNSF was not in fact
motivated by concerns that she was abusing leave but instead was punishing
her for taking her federally guaranteed leave. For starters, BNSF readily
honored her leave request when it was first made.                A coworker—not a
supervisor or human resource employee who would have to have the retaliatory
motive—noted the seeming inconsistency between being able to attend a
concert yet not being able to show up at the office. The coworker’s concern did
not result in cancellation of Jackson’s leave, but only an inquiry about the
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                                No. 17-10872
possible discrepancy. Only after Jackson refused two requests to discuss her
concert attendance did Courreges fire her. Jackson’s failure to explain why
she could attend the concert but not work, or to provide any information about
her medical condition in response to BNSF’s concerns, means there is nothing
she can point to that should have caused Courreges to understand the seeming
inconsistency. As a result, there is not evidence that would allow the jury to
find that this sequence of events resulting in Jackson’s termination was
pretextual. The district court correctly dismissed the FMLA claim.
      The absence of evidence that undermines the railroad’s lawful
explanation for the firing also dooms Jackson’s state law claim for disability
discrimination. See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739
(Tex. 2003) (adopting for Texas disability discrimination claims the federal
McDonnell Douglas standard used to evaluate circumstantial evidence at
summary judgment).
                                    ***
      The judgment is AFFIRMED.




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