                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1852
                        ___________________________

                                 Delbert E. Hudson

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

                             Tyson Fresh Meats, Inc.

                      lllllllllllllllllllll Defendant - Appellee
                                     ____________

                    Appeal from United States District Court
                   for the Northern District of Iowa, Waterloo
                                 ____________

                          Submitted: February 10, 2015
                             Filed: May 22, 2015
                                ____________

Before BYE, BEAM, and BENTON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

       Delbert Eugene Hudson sued Tyson Fresh Meats, Inc. for wrongful termination
in violation of the Family Medical Leave Act. The district court granted summary
judgment to Tyson. Hudson appeals. Having jurisdiction under 28 U.S.C. § 1291,
this court reverses and remands.
                                          I.

       On December 28, 2011, Hudson did not to come to work as a Tyson supervisor
due to illness. Hudson asked his girlfriend (a Tyson employee) to report he was sick
and would be out a few days. She told Hudson’s supervisor, Hamdija Beganovic, that
Hudson would be late or absent on December 28.

      According to Hudson, he texted Beganovic before the start of his shift that he
was having health issues, would be out a few days, and needed to see a doctor.
Tyson’s attendance policy, which Hudson had signed, states: “All management Team
Members are expected to personally call their direct supervisor to report an unplanned
absence or to report that they will be late.” Hudson, however, claims he often texted
with Beganovic, and at least once before (acceptably) notified Beganovic of an
absence by text.

       Hudson missed several days of work due to illness, including December 28,
29, and 30. Besides the message from his girlfriend and the text to Beganovic,
Hudson did not notify Tyson of his absences. He was not scheduled to work on
December 31 or January 1-2. On January 2, he saw a doctor and was diagnosed with,
among other issues, back pain and depression. The doctor prescribed medication and
created a follow-up plan.

       On January 3, Hudson went to Tyson’s health services with a doctor’s note
excusing him from the past week of work, as well as the coming week: “Patient
Delbert Hudson has been under my care 12/28/11 to 1/7/12 for illness and was unable
to work.” Based on the note, Hudson requested leave from December 28-31 and
January 1-7. He intended to apply for FMLA leave. He signed a “Leave of Absence
Application,” which has boxes for requesting “FMLA” or “Medical (Non FMLA)”
leave. The non-FMLA box is checked on Hudson’s application. He denies checking



                                         -2-
it and claims someone else checked it after he signed the application. On January 4,
Tyson granted Hudson non-FMLA leave.

       Hudson returned to Tyson on January 9.1 He was instructed not to go to the
floor or perform his duties. That day, Human Resources manager Teri Wray
investigated Hudson’s absences. She interpreted his first doctor’s note as excusing
him from work from December 28 to January 6 (returning January 7). She
determined that Hudson’s girlfriend reported he would be late on December 28th, but
that he did not notify Tyson of absences on December 27, 29, 30, and 31, or January
7. Wray reported, “Hudson stated that he did not call his supervisor because of the
stress and pain he was enduring.” She found Hudson “understands that he should
have notified his supervisor” but “didn’t come to work because he was feed [sic] up
and felt that he wasn’t getting the support he needed from Beganovic.” She indicated
that Hudson “had specific instructions to call-in prior to shift to his immediate
supervisor if he was going to be late or miss work” and had a “similar situation”
walking off the job without notice in 2011. Wray recommended Hudson’s
termination. Tyson approved the termination that day. It processed the termination
on January 10, informing Hudson that he “failed to notify the company he was going
to be absent from work on 12-28, 12-29, 12-30, and 12-31.”

      Hudson sued, claiming Tyson interfered with his FMLA rights and
discriminated against him for taking FMLA leave. The district court granted
summary judgment to Tyson. It denied Hudson’s Rule 59(e) motion to alter or amend
judgment, and Rule 60(b) motion for relief from judgment.


      1
       Hudson called his doctor on January 9 asking for an extension of his work
release. He received a second doctor’s note, dated January 10, extending his leave
through January 9. It is unclear when Hudson gave this note to Tyson. The parties
do not discuss it. However, the district court found that, based on the new note,
Tyson extended Hudson’s leave through January 9 and did not reinstate him until
January 11.

                                        -3-
                                         II.

      The FMLA entitles an employee to twelve weeks of unpaid leave during any
twelve-month period if the employee has a “serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 29
U.S.C. § 2612(a)(1)(D), (c). It is unlawful for “any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise” FMLA rights. Id. §
2615(a)(1). There are two types of claims under § 2615(a)(1).2 An “entitlement”
claim results when “an employee claims the denial of a benefit to which he is entitled
under the statute.” Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005
(8th Cir. 2012) (noting violation when “employer refuses to authorize leave under the
FMLA or takes other action to avoid responsibilities under the Act”). A
“discrimination” claim occurs when “an employer takes adverse action against an
employee because the employee exercises rights to which he is entitled under the
FMLA.” Id. at 1006.

       Hudson brought entitlement and discrimination claims. The district court
rejected both. This court reviews de novo a grant of summary judgment. Torgerson
v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Summary
judgment is proper when “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). A court
“must view the evidence in the light most favorable to the opposing party” and draw
all reasonable inferences in favor of that party. Tolan v. Cotton, 134 S. Ct. 1861,
1866, 1868 (2014) (per curiam) (internal quotation marks omitted).


      2
       An employer also may not “discharge or in any other manner discriminate
against any individual for opposing any practice made unlawful by this subchapter.”
29 U.S.C. § 2615(a)(2). This type of “retaliation” claim is not at issue here. See
Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005-06 (8th Cir. 2012).
(recognizing three distinct claims under FMLA).

                                         -4-
                                          A.

       Hudson claims that Tyson denied his exercise of FMLA rights in two ways:
misclassifying his leave as non-FMLA, and failing to restore him to his position upon
return from leave. See 29 U.S.C. §§ 2612, 2614 (noting employee is entitled to take
unpaid leave for specified reasons, and to be “restored” to the same or “equivalent”
position following leave). For an entitlement claim, the employee need not show any
discriminatory intent by the employer. Pulczinski, 691 F.3d at 1005. See also
Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006) (“[A]n employee
must show only that he or she was entitled to the benefit denied.” (internal quotation
marks omitted)). The employee must be prejudiced by the employer’s FMLA
violation. Pulczinski, 691 F.3d at 1006.

       Hudson contends that his leave was improperly classified as non-FMLA. He
does not dispute that Tyson granted leave for the requested time. He “does not allege
that he was prejudiced by the misclassification of this absence. He was not denied
compensation or benefits, and he has not specified any sort of equitable relief that is
warranted. Without more, an allegation that a day of leave was misclassified does not
entitle [Hudson] to relief.” See id. at 1007 (internal citations omitted).

       Hudson also contends that Tyson terminated him without “restor[ing]” him to
the same or similar position after his leave. The district court found Hudson was
restored when he returned to Tyson on January 9. However, Hudson was not
permitted to work—and recommended for termination—that same day. See 29
C.F.R. § 825.215 (noting “equivalent position” requires “the same or substantially
similar duties and responsibilities” and “the same shift or the same or an equivalent
work schedule”). Tyson claims it “returned Hudson to his normal job duties for a
person Human Resources was investigating,” but fails to cite authority or the record.
The parties agree that Hudson was terminated January 10. But the court found, “On
January 11, 2012, Tyson reinstated Hudson from his leave of absence, which had

                                         -5-
been extended to January 9, 2012, pursuant to [the doctor’s] second work release,
effective January 10, 2012.”

      There is a dispute of material fact whether Hudson was restored from leave
before being terminated.3 The district court erred in granting summary judgment to
Tyson on the entitlement claim.

                                         B.

       Hudson claims that Tyson discriminated against him by firing him for taking
FMLA leave. The district court found that Hudson demonstrated a prima facie case
of discrimination but that Tyson had a legitimate, nondiscriminatory reason for his
termination. Hudson counters that Tyson’s reason is pretextual.

      A discrimination claim “arises when an employer takes adverse action against
an employee because the employee exercises rights to which he is entitled under the
FMLA.” Pulczinski, 691 F.3d at 1006. “An employee making this type of claim
must prove that the employer was motivated by the employee’s exercise of rights
under the FMLA.” Id. Using FMLA leave “does not give an employee any greater
protection against termination for reasons unrelated to the FMLA than was available
before.” Malloy v. U.S. Postal Serv., 756 F.3d 1088, 1090 (8th Cir. 2014). Thus,
taking action against an employee for violating company attendance policies while
on FMLA leave is not discriminatory. Chappell v. Bilco Co., 675 F.3d 1110, 1115
(8th Cir. 2012).


      3
        If, after his leave was over and after he was restored to his position, Tyson
took adverse employment action against Hudson because he exercised FMLA rights,
that is a claim for discrimination. See Stallings, 447 F.3d at 1051 (finding court
properly analyzed claim as one for discrimination when “only after Stallings returned
from FMLA leave did [his employer] question” whether the leave was fraudulent).


                                         -6-
       Hudson offers no direct evidence that Tyson terminated him for exercising his
FMLA rights. Therefore, his claim is analyzed under the McDonnell Douglas
framework. Pulczinski, 691 F.3d at 1007. “To establish a prime facie case of FMLA
discrimination, an employee must show: (1) that he engaged in activity protected
under the Act, (2) that he suffered a materially adverse employment action, and (3)
that a causal connection existed between the employee’s action and the adverse
employment action.” Id. (emphasis omitted). If the employee establishes a prima
facie case, “the burden shifts to the [employer] to articulate a legitimate,
nondiscriminatory reason for its challenged actions.” Stallings, 447 F.3d at 1051.
The employee may then demonstrate that the proffered reason is pretextual, showing
that “the employer’s proffered explanation is unworthy of credence” or “persuading
the court that a prohibited reason more likely motivated the employer.” Id. at 1052
(brackets and internal quotation marks omitted). See also Chappell, 675 F.3d at 1117
(noting evidence of pretext is viewed in light of employer’s justification, so more than
a prima facie case is required). If an employer bases its decision on an honestly-held
belief unrelated to the FMLA, it is nondiscriminatory even if that belief is mistaken.
Phillips v. Mathews, 547 F.3d 905, 911 (8th Cir. 2008).

       Tyson contends Hudson did not engage in protected activity because he
provided inadequate notice of his need for leave. See Hager v. Ark. Dep’t of Health,
735 F.3d 1009, 1015-16 (8th Cir. 2013) (noting employee “must give the employer
notice of the need for leave and indicate when [he] anticipates returning to work”).
The district court assumed adequate notice. Disputes of fact about notice remain,
including whether Hudson checked the non-FMLA box on his application and
whether he sent his supervisor a text. These may or may not be material, depending
on the content of the notice. Cf. Clinkscale v. St. Therese of New Hope, 701 F.3d
825, 827 (8th Cir. 2012) (“Whether an employee gave sufficient information to put
his or her employer on notice that an absence may be covered by the FMLA is a
question of fact for the jury.”). Given the factual issues, this court declines to affirm


                                          -7-
on “alternative grounds that have not yet been addressed by the district court,” and
“believe[s] it more prudent to allow the district court to address those issues in the
first instance” on remand. See In re Baycol Prods. Litig., 732 F.3d 869, 877 n.6 (8th
Cir. 2013).

       Assuming Hudson engaged in protected activity, he presents a prima facie case
of discrimination. On the second element, Tyson concedes Hudson’s termination was
a materially adverse employment action. On the third, Tyson does not dispute the
district court’s finding: “Given the exceedingly close temporal connection between
the protected conduct and the adverse employment action, Hudson has demonstrated
a causal link between the protected activity and the adverse employment action.” See
Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir. 2006).

        Tyson asserts a legitimate, nondiscriminatory reason for Hudson’s termination:
He was a “no call/no show” for multiple days. At oral argument, Tyson clarified that
it did not fire Hudson for failing to show up to work, since it granted leave
retroactively. Rather, it fired Hudson for “fail[ing] to follow the notice procedures
. . . which required a phone call.” Hudson does not dispute that violating Tyson’s
attendance policy would be a legitimate reason for termination unrelated to the
FMLA. See Chappell, 675 F.3d at 1115 (noting employer may take action when
employee fails to follow call-in policy). However, Hudson contends that he gave
timely and adequate notice, and that Tyson’s reason for terminating him is pretextual.

        There is a genuine issue of material fact whether Tyson’s explanation “is
unworthy of credence.” Stallings, 447 F.3d at 1052. Originally, Tyson claimed that
it fired Hudson for “fail[ing] to notify the company he was going to be absent”; it now
claims that he failed to notify the company in the correct manner. While this shift in
explanation does not prove pretext, it is relevant in light of other evidence. Cf.
Malloy, 756 F.3d at 1092 (finding no inference of discrimination necessary when new



                                         -8-
explanation was not a “substantial change in the employer’s stated reason”). Tyson’s
explanations (both original and new) are partly inaccurate. See Hite, 446 F.3d at 867
(“In appropriate circumstances, the trier of fact can reasonably infer from the falsity
of the explanation that the employer is dissembling to cover up a discriminatory
purpose.” (internal quotation marks omitted)). On December 31, Hudson was not
scheduled to work. He thus did not need to notify anyone of his absence. For
December 28, Wray’s notes stated that Hudson had notified the company (although
not by phone). Although Tyson argues Wray had an honestly-held belief that Hudson
missed work for multiple days without notifying Tyson, it does not address that
Wray’s own notes and Hudson’s work schedule contradict this belief. See Stallings,
447 F.3d at 1053 (finding pretext when employer could not reasonably believe
employee lied about taking FMLA leave).

       It is also disputed whether Tyson enforced its call-in policy. Hudson swore
that he often texted with his supervisor, and that he had previously notified his
supervisor, via text, of an absence. Although the policy says Hudson needed to call
his direct supervisor, Beganovic testified that employees are “supposed to call in, just
like anybody else. They’re supposed to get ahold of somebody” or “notify HR”—the
policy didn’t require calling a “specific person.” The trier of fact may infer that firing
Hudson for failing to call his supervisor, when other methods of communication are
acceptable, is pretext. Compare Hite, 446 F.3d at 868 (noting jury could have found
that employer’s reason had no basis in fact if it credited the employee’s testimony),
with Chappell, 675 F.3d at 1118 (concluding termination for failing to follow call-in
policy was not discriminatory, when other employees were also disciplined for
violating that policy). Hudson has presented sufficient evidence to raise a genuine
issue of fact that he adequately notified Tyson and was actually terminated based on
his use of FMLA leave. See Tolan, 134 S. Ct. at 1866 (“[A] judge’s function at
summary judgment is not to weigh the evidence and determine the truth of the matter




                                           -9-
but to determine whether there is a genuine issue for trial.” (internal quotation marks
omitted)).

                                    *******

      The judgment is reversed and the case remanded for proceedings consistent
with this opinion.
                     ______________________________




                                         -10-
