     Case: 14-30435      Document: 00513059156         Page: 1    Date Filed: 05/29/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 14-30435                                  FILED
                                  Summary Calendar                            May 29, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
ANNE VICTORIA CASTAY,

                                                 Plaintiff-Appellant

v.

OCHSNER CLINIC FOUNDATION,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-2492


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Anne Victoria Castay appeals the district court’s grant of summary
judgment in favor of Ochsner Clinic Foundation (Ochsner). Castay filed suit
against Ochsner alleging that it interfered with her rights under the Family
and Medical Leave Act (FMLA) and that it retaliated against her after she
invoked her rights under the FMLA. Castay, a former surgical technician at
Ochsner, asserted that she sought FMLA leave to care for her ailing father.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30435

       We review the grant of a motion for summary judgment de novo,
applying the same standards as the district court. Dillon v. Rogers, 596 F.3d
260, 266 (5th Cir. 2010). “The court shall grant summary judgment 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). All
facts and inferences are construed in the light most favorable to the nonmoving
party. Dillon, 596 F.3d at 266.
       The FMLA entitles eligible employees to twelve workweeks of leave in
any 12-month period for various qualifying events, including caring for a
parent with a serious health condition. 29 U.S.C. § 2612(a)(1)(C). An employee
is “eligible” for FMLA leave if the employee has been employed “for at least 12
months by the employer . . . and for at least 1,250 hours of service with such
employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A).
       The district court dismissed Castay’s FMLA interference claim because
she failed to show that she had worked the required 1,250 hours in the previous
12 months; therefore, the court found that she was not eligible for FMLA leave.
Castay does not dispute that finding. 1 Because Castay has not shown that she
raised a genuine issue of material fact regarding her eligibility for FMLA leave,
she has not shown that the district court erred in granting Ochsner’s motion
for summary judgment on her FMLA interference claim. See § 2611(2)(A);
Dillon, 596 F.3d at 266.
       Castay has likewise failed to carry her burden with respect to her FMLA
retaliation claim. The district court analyzed Castay’s retaliation claim under
the mixed-motive, burden-shifting framework set forth in Ion v. Chevron USA,

       1  Because Castay, who worked a less than full-time schedule, missed the eligibility
by three hundred hours, her suggestion that she could have “easily accrued the additional
hours necessary to become eligible” if Ochsner had given her advance warning of ineligibility
is meritless. Additionally, the district court correctly found that Castay’s estoppel-type claim
that an employee told her she was eligible also fails.


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                                       No. 14-30435

Inc., 731 F.3d 379, 380 (5th Cir. 2013). 2 To survive a motion for summary
judgment under that framework, the employee must first set forth a prima
facie case of FMLA retaliation. Id. at 390. The burden then shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. Id. If the employer does so, “the burden shifts once more
to the employee to offer sufficient evidence to create a genuine issue of fact that
the employer’s reason, although true, is but one of the reasons for its conduct,
another of which was discrimination.” Id.
       The district court assumed without deciding that Castay had set forth a
prima facie case for FMLA retaliation. 3 The court determined that Ochsner
had provided sufficient evidence that it terminated Castay for incidents of
inappropriate and unprofessional behavior and that Castay did not meet her
burden of offering sufficient evidence to create a genuine issue of material fact
that Ochsner’s reason, although true, was but one of the reasons for its decision
and that another reason was discrimination. Castay has not shown error in
the district court’s determination; she argues only that Ochsner failed to
submit evidence showing that it had disciplined other employees for similar



       2   In Ion, we noted that both sides had argued the case as a mixed-motive case without
urging a different standard under the then-new Supreme Court decision in Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013), which concluded that use of the “because”
language in the retaliation statute there at issue required “but for” causation, not “mixed
motive.” Ion, 731 F.3d at 389-90. Because we concluded that the plaintiff’s claim in that case
would fail under either standard, we did not decide whether the “but for” causation standard
should apply in FMLA retaliation cases. Ochnser has argued that Nassar’s reasoning applies
in the FMLA retaliation context. Like the district court, we conclude that this case does not
turn on this distinction and leave the determination of Nassar’s potential applicability to
FMLA retaliation claims to another case.
        3 We have not held in a published decision that a plaintiff must prove FMLA eligibility

to state a viable FMLA retaliation claim, but two unpublished decisions state that such
eligibility is a prerequisite to relief under a retaliation claim. Amsel v. Tex. Water Dev. Bd.,
464 F. App’x 395, 401 n.7 (5th Cir. 2012); Roberts v. Unitrin Specialty Lines Ins. Co., 405 F.
App’x 874, 881-82 (5th Cir. 2010). If eligibility is required for a retaliation claim, Castay’s
claim clearly fails.


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offenses. Castay has not pointed to argument or evidence that created a
genuine issue of material fact that Ochsner’s reason for her termination,
“although true, is but one of the reasons for its conduct, another of which was
discrimination.” Ion, 731 F.3d at 390. 4 We do not address the arguments
raised for the first time in Castay’s reply brief. See United States v. Transocean
Deepwater Drilling, Inc., 767 F.3d 485, 492 (5th Cir. 2014).
       Castay’s motion for leave to supplement the record on appeal is
DENIED. See Trinity Indus., Inc. v. Martin, 963 F.2d 795, 799 (5th Cir. 1992);
Topalian v. Ehrman, 954 F.2d 1125, 1131 n.10 (5th Cir. 1992). The district
court’s judgment is AFFIRMED.




       4  We note that Castay never actually filed a request for FMLA leave; she simply
inquired about it. Given our disposition, we need not address here the extent to which such
a request is a prerequisite to stating a valid FMLA retaliation claim.


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