     Case: 12-40165   Document: 00512366420      Page: 1   Date Filed: 09/09/2013




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

                                                                    FILED
                                                              September 9, 2013

                                 No. 12-40165                      Lyle W. Cayce
                                                                        Clerk

JESSICA CUELLAR,

                                            Plaintiff-Appellant,

v.

KEPPEL AMFELS, L.L.C.,

                                            Defendant-Appellee.


                Appeal from the United States District Court
                     for the Southern District of Texas



Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
PER CURIAM:
      Jessica Cuellar alleges that her secondary employer, Keppel Amfels,
L.L.C. (“Keppel Amfels”), violated § 2615(a)(1) of the Family Medical Leave Act
(“FMLA”) by discouraging her primary employer, staffing agency Perma-Temp
Personnel Services, Inc. (“Perma-Temp”), from seeking her reinstatement after
an FMLA-authorized maternity leave. The district court granted summary
judgment in favor of Keppel Amfels. Because Cuellar fails to present a genuine
issue of material fact, we AFFIRM.
                                       I.
      Keppel Amfels builds and repairs offshore drilling platforms and marine
vessels at the Port of Brownsville, Texas. It relies on lease-labor and temporary
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                                 No. 12-40165

staffing agencies, including Perma-Temp, to staff about half of its local work
assignments.    Although these agencies fill “temporary” positions, some
placements last for several years.
      Keppel Amfels and Perma-Temp started working together in about 1996.
According to Cuellar, the entities developed a course-of-dealing over the years:
“When an opening at Keppel Amfels arose, Perma-Temp would select three to
four candidates from its pool of available workers and send their resumes to
Keppel Amfels. Keppel Amfels would use those resumes to decide which
candidates it would interview and which candidate would fill the opening.”
Cuellar emphasizes that Perma-Temp never offered to send a worker to fill a
new or replacement position unless and until it received a request from Keppel
Amfels.
      When a Material Information Clerk assignment opened in June 2007,
Perma-Temp recommended, and Keppel Amfels hired, Cuellar. Cuellar became
pregnant at some time during her employment and notified both Perma-Temp
and Keppel Amfels that she would require medical leave following the birth of
her child. Cuellar went into pre-term labor on August 17, 2008, and gave birth
a few days later.
      Cuellar alleges that, on the same day that she informed Keppel Amfels
that she had been admitted to the hospital for pre-term labor, Cuellar’s
supervisor requested a replacement employee. The supervisor noted on a
personnel requisition form that the reason for the request was to “temporarily
fill in for employee out on maternity leave and permanently replace employee
retiring at end of year.” Keppel Amfels selected Geralyn Perez, the daughter
of a Keppel Amfels Project Manager, for the position. According to Perez, a

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                                  No. 12-40165

Keppel Amfels supervisor told her that “somebody was on maternity leave and
[Perez] was taking her place.” Perez started on August 20, 2008.
      Cuellar further alleges that, three days into her maternity leave, Keppel
Amfels informed Perma-Temp that it had terminated her assignment. Cuellar
bases this factual assertion on a note in Perma-Temp’s database, which states:
“On 8/21/08 Ben Sandoval [of Keppel Amfels’s human resources department]
just [called] to let us know that he is ending [Cuellar’s] job as of today and also
stated that she is able to be re-hired.” Sandoval does not remember making this
call to Perma-Temp and, in any event, disputes that he would have used the
term “ending” regarding Cuellar’s position. Sandoval concedes, however, that
he probably told Perma-Temp that Keppel Amfels intended to replace Cuellar
with another employee. Although Cuellar was eligible for re-hire, meaning that
she was not terminated for cause, Keppel Amfels did not hold any position open
for her.
      Unaware of these events, Cuellar called her supervisor at Keppel Amfels
when she was released to return to work. Cuellar’s supervisor transferred her
to Sandoval in Keppel Amfels’s human resources department. According to
Cuellar, Sandoval told her that Keppel Amfels was “doing fine without her” and
that the company would call her if there was another opening in her
department. Cuellar then called Perma-Temp and relayed her conversation
with Sandoval; she claims that a Perma-Temp employee encouraged her to seek
unemployment benefits, which she did. Perma-Temp did not refer Cuellar back
to Keppel Amfels or ask Keppel Amfels to reinstate her to the Material
Information Clerk position.
      Cuellar filed suit against Keppel Amfels, asserting that Keppel Amfels (1)


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                                       No. 12-40165

interfered with her FMLA rights by “convincing” Perma-Temp not to seek her
reinstatement in violation of 29 U.S.C. § 2615(a)(1), and (2) retaliated against
her based on her exercise of FMLA rights in violation of § 2615(a)(2). On
summary judgment, the district court “merged” Cuellar’s claims and analyzed
them both pursuant to the McDonnell-Douglas burden-shifting regime. It held
that Cuellar stated a prima facie case, but concluded that both of her claims
failed because there was “no evidence in the record that [Keppel] Amfels acted
with a discriminatory animus by terminating Cuellar’s assignment.”
Accordingly, the district court granted Keppel Amfels’s motion for summary
judgment and dismissed Cuellar’s claims against Keppel Amfels with prejudice.1
Cuellar appeals only the dismissal of her § 2615(a)(1) “interference” claim.2
                                             II.
       We review de novo a district court’s grant of summary judgment, applying
the same standard as the district court. Ford Motor Co. v. Tex. Dep’t of Transp.,
264 F.3d 493, 498 (5th Cir. 2001) (citation omitted). 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). “A genuine issue of material fact exists when the evidence is
such that a reasonable jury could return a verdict for the non-moving party.”


       1
       For the same reason, the district court denied Cuellar’s cross motion for summary
judgment as to her interference and retaliation claims.
       2
         Cuellar does not challenge the district court’s determinations that: (1) Cuellar was
subject to joint employment, with Perma-Temp as her primary employer and Keppel Amfels
as her secondary employer; (2) Keppel Amfels is not liable for failure to reinstate Cuellar to
her position because Perma-Temp did not refer her to Keppel Amfels after the birth of her
child; and (3) Keppel Amfels did not act with discriminatory animus.


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                                       No. 12-40165

Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th Cir.
2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)). “On
cross-motions for summary judgment, we review each party’s motion
independently, viewing the evidence and inferences in the light most favorable
to the nonmoving party.” Ford, 264 F.3d at 498 (citing Taylor v. Gregg, 36 F.3d
453, 455 (5th Cir. 1994)).3
                                              III.
       Congress enacted the FMLA to permit eligible employees “to take
reasonable leave for medical reasons, for the birth or adoption of a child, and for
the care of a child, spouse, or parent who has a serious health condition.”
Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 372 (5th Cir.
2008) (citing 29 U.S.C. § 2601(b)(2)). The statute guarantees eligible employees
a total of twelve weeks of leave in a one-year period when the leave relates to the
birth of a child. 29 U.S.C. § 2612(a)(1). Upon the employee’s timely return, the
employer must reinstate the employee “to the same position as previously held
or a comparable position with equivalent pay, benefits, and working conditions.”
Smith v. E. Baton Rouge Parish Sch. Bd., 453 F.3d 650, 651 (5th Cir. 2006)
(citing 29 U.S.C. § 2614(a)(1)).



       3
         As a threshold matter, we address Keppel Amfels’s argument that Cuellar waived her
right to appeal because she cited to an Addendum of Undisputed Facts, rather than the
underlying record evidence. We disagree. The underlying evidence appears in the record and
is identifiable based on Cuellar’s citations in the Addendum of Disputed Facts. While this
citation method is technically improper, it is not so egregious as to merit waiver. See United
States v. Stewart, 466 F. App’x 340, 341 (5th Cir. 2012) (concluding that a plaintiff abandoned
an issue when his brief contained “no citations to the record in support of either his statement
of the facts or his legal argument”); Hernandez v. Grubbs, 82 F. App’x 866, 867 (5th Cir. 2003)
(dismissing an appeal as frivolous when the plaintiff wholly failed to provide references to the
page number of the record to support statements of fact).

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                                  No. 12-40165

      Where two businesses “exercise some control over the work or working
conditions of the employee, the businesses may be joint employers under FMLA.”
29 C.F.R. § 825.106(a). Under the relevant regulations, a joint employer’s
obligations under the FMLA depend on whether it is the “primary” or
“secondary” employer. Id. § 825.106(c). Where an employee obtains employment
through a temporary placement agency, “the placement agency most commonly
would be the primary employer.” Id. Applying the regulations here, we conclude
that Perma-Temp was Cuellar’s primary employer, and Keppel Amfels was her
secondary employer.
      Only the primary employer is responsible for providing FMLA leave. Id.
§ 825.106(c). In addition, “[j]ob restoration is the primary responsibility of the
primary employer.” Id. § 825.106(e). A secondary employer bears only a
conditional burden: it “is responsible for accepting an employee returning from
FMLA leave . . . if [it] continues to utilize an employee from the temporary
placement agency, and the agency chooses to place the employee with the
secondary employer.” Id. (emphasis added).
      A secondary employer is not without independent FMLA obligations,
however.   In addition to its conditional job-restoration duty, a secondary
employer is “also responsible for compliance with the prohibited acts provisions
with respect to its jointly employed employees . . . .” Id. (citing § 825.220(a))
(emphasis added). The “prohibited acts provisions” appear in § 2615, and
include two relevant categories of illegal behavior:
      (1) Exercise of rights
            It shall be unlawful for any employer to interfere with,
            restrain, or deny the exercise of or the attempt to exercise,
            any right provided under this subchapter.
      (2) Discrimination

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                                 No. 12-40165

            It shall be unlawful for any employer to 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). The regulations provide that “interfering with” the exercise
of an employee’s rights “would include, for example, not only refusing to
authorize FMLA leave, but discouraging an employee from using such leave” and
“manipulation by a covered employer to avoid responsibilities under FMLA.” 29
C.F.R. § 825.220(b). The comments to the final rule implementing the FMLA’s
joint-employment regulations explain:
      [A]lthough job restoration is the responsibility of the primary
      employer, the purposes of the Act would be thwarted if the
      secondary employer is able to prevent an employee from returning
      to employment. Accordingly, the regulations are revised to provide
      that the secondary employer is responsible for accepting an
      employee returning from leave in place of any replacement
      employee. Furthermore, the secondary employer (client employer)
      must observe FMLA’s prohibitions in § 105(a)(1), including the
      prohibition against interfering with, restraining, or denying the
      exercise of or attempt to exercise any rights provided under the
      FMLA. It would be an unlawful practice, in the Department’s view,
      if a secondary employer interfered with or attempted to restrain
      efforts by the primary (temporary help) employer to restore an
      employee who was returning from FMLA leave to his or her previous
      position of employment with the secondary (client) employer (where
      the primary (temporary help) employer is still furnishing the same
      services to the secondary (client) employer). Because the secondary
      employer is acting in the interest of the primary employer within
      the meaning of § 101(4)(A)(ii)(I) of the Act, the secondary employer
      has these responsibilities, regardless of the number of employees
      employed.
The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2183 (Jan. 6,
1995) (codified at 29 C.F.R. § 825) (emphasis added). Thus, as Amici note, that
a primary employer bears the main responsibility for job restoration “does not

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                                  No. 12-40165

enable secondary client employers to avoid responsibility for reinstating
temporary employees after FMLA leave.” Just as a primary employer may not
interfere with, or retaliate on account of, an employee’s exercise of FMLA rights,
neither may a secondary employer.
      Here, Cuellar alleged that Keppel Amfels, her secondary employer,
violated the first of the prohibited acts provisions (§ 2615(a)(1)) by discouraging
Perma-Temp from seeking her reinstatement after her maternity leave. The
district court dismissed Cuellar’s claim on the ground that she failed to
demonstrate a fact issue that Keppel Amfels acted with discriminatory intent.
On appeal, the parties dispute whether: (1) Cuellar must prove intent to recover
pursuant to § 2615(a)(1), and (2) if not, Cuellar can demonstrate a genuine issue
of material fact on the remaining elements of her interference claim. For the
purposes of this appeal we assume, arguendo, that intent is not an element of
Cuellar’s § 2615(a)(1) claim and proceed directly to the second issue.
      To succeed on her § 2615(a)(1) claim, Cuellar must at least show that
Keppel Amfels interfered with, restrained, or denied her exercise or attempt to
exercise FMLA rights, and that the violation prejudiced her. Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). According to Cuellar,
“Keppel Amfels’[s] actions . . . convinced both Perma-Temp and Cuellar it was
fruitless to refer her back to Keppel Amfels for reinstatement.” She emphasizes
that the long-standing course of dealing between her employers was that Perma-
Temp “never referred workers without a request from Keppel Amfels.” And,
“Keppel Amfels had and exercised the authority to decide whether or not Cuellar
would be allowed to return to work there.” Thus, Cuellar asserts that by
replacing her, telling Perma-Temp that her employment was terminated, and


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                                     No. 12-40165

telling her, upon her return from leave, that she no longer had a position at
Keppel Amfels, Keppel Amfels “prevented Cuellar from exercising fully her right
to be reinstated.”4
      Keppel     Amfels     argues    that       these   incidents     cannot    constitute
“interference,” as they would extend FMLA entitlements past their statutory and
regulatory limits in the joint-employment context. We agree. The regulations
permit, even expect, a secondary employer to rely on a primary employer to
provide FMLA leave: a temporary employee’s relationship with a secondary
employer may end and never be restored without any violation of the FMLA. 29
C.F.R. § 825.106(e). As explained above, the “primary responsibility” for job
restoration falls on the primary employer; a secondary employer need only
accept an employee returning from FMLA leave if it “continues to utilize an
employee from the temporary placement agency, and the agency chooses to place
the employee with the secondary employer.” Id. (emphasis added). Thus, Keppel
Amfels acted within its rights to replace Cuellar temporarily, and had no
obligation to reinstate her absent a request from Perma-Temp. The statute and
regulations demonstrate that “interference” requires something more to create
liability against a secondary employer.
      There is nothing more here. That Perma-Temp typically relied on Keppel
Amfels to initiate a request for a temporary employee to fill a new position
cannot create a fact issue, as it says nothing about the entities’ expectations


      4
        According to Cuellar, Perma-Temp believed that she would return to Keppel Amfels
until Sandoval, a Keppel Amfels employee, indicated that Cuellar’s assignment was over.
Perma-Temp took Sandoval’s communication to mean that Cuellar would need to apply and
be hired for a new position before she could return to Keppel Amfels, making reinstatement
to the same position impossible. Cuellar contends that Keppel Amfels “confirmed” this
message when it told her that her position had been filled.

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                                  No. 12-40165

when confronted with an employee’s return from FMLA leave. Although Cuellar
frames Keppel Amfels’s actions as “convincing” Perma-Temp not to seek her
reinstatement, the allegations simply do not support that inference.
      Ultimately, we agree with Keppel Amfels that to hold it liable on these
facts would be to place it in the position of a primary employer and, therefore,
create an employment relationship that did not exist prior to Cuellar’s leave. As
a district court addressing similar facts explained:
      The plain language of the FMLA provides that no employee will be
      entitled to any position to which the employee would not have been
      entitled had leave not been taken. See 29 U.S.C. § 2614(a)(3). As
      set forth above, there is no dispute that Plaintiff was an employee
      leased from RAS to Moore Wallace. Plaintiff’s insistence that Moore
      Wallace reinstate her directly, regardless of the consent of RAS,
      would require that Moore Wallace hire her as a direct employee,
      thereby creating an employment relationship that did not exist prior
      to Plaintiff taking leave. In sum, requiring Moore Wallace to
      reinstate Plaintiff on its own is contrary to the plain language of the
      statute.
Stierl v. Ryan Alt. Staffing, Inc., No. 4:06-CV-1751, 2007 WL 1306601, at *5
(N.D. Ohio May 3, 2007). Because Cuellar fails to create a fact issue that Keppel
Amfels’s actions went beyond what the relevant FMLA statutory and regulatory
provisions allow, her claim fails regardless of whether intent is an element of her
claim. For this reason, we AFFIRM.




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                                     No. 12-40165

JENNIFER WALKER ELROD, Circuit Judge, specially concurring:
      Although we affirm the district court’s decision on a separate ground, the
issue on which the district court ruled and that the parties extensively briefed
on appeal is whether a plaintiff must prove that the defendant acted with
discriminatory intent to succeed on a claim for “interference” with an FMLA
entitlement pursuant to § 2615(a)(1). Keppel Amfels would have us answer this
question based on the label that we use to describe the claim: specifically,
whether we call it “prescriptive” or “proscriptive.” In my view, however, these
labels have become more distracting than helpful, and have resulted in
unnecessary confusion. I write separately to emphasize that, under our existing
precedent, the critical inquiry is not what name we use to describe a plaintiff’s
§ 2615(a)(1) claim; rather, it is whether the claim, by its nature, arises from the
denial of a substantive FMLA entitlement.
      We have used the terms “prescriptive” and “proscriptive” to describe the
FMLA’s prohibited acts provisions.1 See, e.g., Elsensohn v. St. Tammany Parish
Sheriff’s Office, 530 F.3d 368, 372 (5th Cir. 2008); Haley v. Alliance Compressor
LLC, 391 F.3d 644, 649 (5th Cir. 2004). In general, the term “prescriptive” refers
to the substantive FMLA rights an employer owes its employees. See Hunt v.
Rapides Healthcare Sys., LLC, 277 F.3d 757, 763 (5th Cir. 2001). An employer’s
“proscriptive” obligations, on the other hand, bar it from “penalizing an employee
for the exercise of FMLA rights.” Id. at 763. Unfortunately, however, our use




      1
        The First and Fourth Circuits also use these terms. See, e.g., Hodgens v. Gen.
Dynamics Corp., 144 F.3d 151, 159–60 (1st Cir. 1998); Yashenko v. Harrah’s NC Casino Co.,
LLC, 446 F.3d 541, 546 (4th Cir. 2006).

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                                        No. 12-40165

of these terms is somewhat inconsistent across cases.2                      Thus, while the
proscriptive and prescriptive labels have utility—particularly in the context of
the individual cases in which they appear—it is difficult to distinguish FMLA
claims based on these terms alone.
       More important than the labels that we have used is the substantive
analysis that we have applied in evaluating a plaintiff’s FMLA claims.3 Review



       2
          At times, we have classified claims pursuant to § 2615(a)(1) as “prescriptive” and
those pursuant to § 2615(a)(2) as “proscriptive.” See, e.g., Haley. 391 F.3d at 649 (“claims for
violations of [substantive-FMLA] rights invoke entitlement or interference theories and are
brought under § 2615(a)(1),” whereas “[c]laims for violations of these rights are brought under
§ 2615(a)(2)”); Williams v. Lyondell-Citgo Ref. Co., Ltd., 247 F. App’x 466, 468 n.1 (5th Cir.
2007) (The FMLA “has one provision granting prescriptive or substantive rights, and one
granting proscriptive rights. See § 29 U.S.C. 2615(a)(1) (granting prescriptive rights); 29
U.S.C. § 2615(a)(2) (granting proscriptive rights).”).
        At other times, however, we have described different substantive provisions of the
FMLA—such as 29 U.S.C. § 2612(a)(1)(D)’s requirement that an employer allow for up to
twelve weeks of leave—as “prescriptive,” and the prohibitions in both § 2615(a)(1) and
§ 2615(a)(2) as “proscriptive.” See, e.g., Elsensohn, 530 F.3d at 372; Hunt, 277 F.3d at 763.
        Moreover, we have sometimes used the “interference” and “retaliation” labels favored
by our sister circuits to describe a plaintiff’s FMLA claims. See, e.g., Bell v. Dallas Cnty., 432
F. App’x 330, 334 (5th Cir. 2011); Baham v. McLane Foodservice, Inc., 431 F. App’x 345, 347
n.1 (5th Cir. 2011); see also Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir. 2006)
(calling claims under the two prongs of § 2615(a) “interference” and “retaliation” claims,
respectively); Harris v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 594 F.3d 476, 482
(6th Cir. 2010) (same); Kauffman v. Fed. Exp. Corp., 426 F.3d 880, 884 (7th Cir. 2005) (same);
Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002) (same);
Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206 n.9 (11th Cir.
2001) (“While the FMLA does not clearly delineate these two claims with the labels
‘interference’ and ‘retaliation,’ those are the labels courts have used in describing an
employee’s claims under the Act.” (citing O’Connor v. PCA Family Health Plan, Inc., 200 F.3d
1349, 1352 (11th Cir. 2000))).
       3
        Cf. Mellen v. Trustees of Boston Univ., 504 F.3d 21, 26–27 (1st Cir. 2007) (“[W]hat
matters is ‘whether the plaintiff is, at bottom, claiming that the employer denied his or her
substantive rights under the FMLA or that the employer retaliated against him or her for
having exercised or attempted to exercise those rights.’” (quoting Colburn v. Parker
Hannifin/Nichols Portland Div., 429 F.3d 325, 332 (1st Cir. 2005))).

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                                      No. 12-40165

of the relevant case law reveals an underlying principle: whatever they are
called, claims that arise from the deprivation of an FMLA entitlement do not
require a showing of discriminatory intent, whereas claims that arise from
alleged retaliation for an employee’s exercise of FMLA rights do. Nero and
Chaffin illustrate this principle in action. Compare Nero v. Indus. Molding
Corp., 167 F.3d 921, 927 (5th Cir. 1999), with Chaffin v. John H. Carter Co., Inc.,
179 F.3d 316, 319 (5th Cir. 1999),4 partially abrogated on other grounds by
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146–49 (2000).
           In Nero, a plaintiff argued that his termination during FMLA leave
constituted an unlawful interference with his right to reinstatement. 167 F.3d
at 927. The defendant attempted to pigeonhole the plaintiff’s claim as one for
retaliation, arguing that Nero could not recover because there was no evidence
of intent. Id. at 926–27. But this reflected “a misunderstanding of Nero’s claim.”
Id. at 927. “Nero argued repeatedly and clarified at trial that he is ‘not saying
he got fired because of taking the leave.’ Rather, Nero argued consistently
throughout trial that ‘the crux of the claim [is that] he wasn’t restored’ to his
job.” Id. The court held that Nero need not prove intent: “Because the issue is
the right to an entitlement, the employee is due the benefit if the statutory
requirements are satisfied, regardless of the intent of the employer.”                  Id.
(emphasis added) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151,
159–60 (1st Cir. 1998)). The court declined “to consider further [the defendant’s]



       4
         It is worth noting that Chaffin is one of the many cases that articulates the
prescriptive/proscriptive distinction between FMLA claims. The case attributes the
requirement not to “interfere with, restrain, or deny the exercise of . . . any right” to
§ 2615(a)(2) rather than § 2615(a)(1), where it actually appears, making it difficult to
determine which provision the court considered “proscriptive.” Chaffin, 179 F.3d at 319 n.6.

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                                       No. 12-40165

immaterial argument” on intent and upheld a jury verdict on Nero’s FMLA
claim. Id.
       In Chaffin, on the other hand, the plaintiff made “no claim that [the
defendant] denied her a substantive entitlement under the FMLA. Rather, she
contend[ed] that [the defendant] punished her for exercising her right under the
FMLA to take leave.”           179 F.3d at 319.          The court imposed an intent
requirement, holding that “when direct evidence of discrimination is lacking, the
McDonnell Douglas organizational framework applies to claims that an
employee was penalized for exercising rights guaranteed by the FMLA.” Id. The
court expressly noted that its decision did not “extend to alleged deprivations of
substantive rights under the FMLA.” Id. at 319 n.13. Ultimately, the plaintiff’s
claim failed because she could not counter the defendant’s evidence of a
legitimate, nondiscriminatory reason for her termination. Id. at 321.
       Viewed together, these cases illustrate that a plaintiff need only prove
intent when her claims arise out of alleged punishment for the exercise or
attempt to exercise an FMLA right.5 Other cases decided by this court reinforce
the same principle. See, e.g., Hunt, 277 F.3d at 763–71 (analyzing a plaintiff’s
claim for failure to award an FMLA entitlement separately from her retaliation
claim, imposing the McDonnell Douglas burden-shifting regime only in the
context of the latter); Mauder, 446 F.3d at 579–85 (same). So do cases in our
sister circuits. For example, the Tenth Circuit has explained, “[i]f an employer


       5
         In my view, Nero and Chaffin are not in conflict, but rather address different sides
of the FMLA coin. In any event, because Nero (decided on March 2, 1999) predates Chaffin
(decided on June 22, 1999), we are bound by the rule of orderliness to follow Nero with respect
to any irreconcilable differences between the two decisions. See, e.g., McClain v. Lufkin
Indus., 649 F.3d 374, 385 (5th Cir. 2011) (“This court’s rule of orderliness prevents one panel
from overruling the decision of a prior panel.”).

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                                        No. 12-40165

interferes with the FMLA-created right to medical leave or to reinstatement
following the leave, a deprivation of this right is a violation regardless of the
employer’s intent.” Smith, 298 F.3d at 960 (emphasis added).6 In the joint
employment context, the Sixth Circuit has likewise noted that an “employer’s
intent is not directly relevant to the entitlement inquiry.” See Grace v. USCAR,
521 F.3d 655, 670 (6th Cir. 2008) (citing Edgar v. JAC Prods., 443 F.3d 501, 507
(6th Cir. 2006)).
       Applying these principles to this case, I would look to the substance of
Cuellar’s claim to determine whether it arises from the deprivation of an FMLA
entitlement or from punishment exacted for her exercise of an FMLA right.7
Here, Cuellar alleges that she was denied a substantive FMLA right:


       6
         See also Scruggs v. Carrier Corp., 688 F.3d 821, 825 (7th Cir. 2012) (“An interference
claim does not require an employee to prove discriminatory intent on the part of the employer;
rather, such a claim ‘requires only proof that the employer denied the employee his or her
entitlements under the Act.’” (quoting Shaffer v. Am. Med. Ass’n, 662 F.3d 439, 443 (7th Cir.
2011))); Stallings, 447 F.3d at 1050 (“This court has recognized that an employee can prove
interference with an FMLA right regardless of the employer’s intent.” (citation omitted));
Colburn, 429 F.3d at 332 (“[Our] approach to an FMLA claim of retaliation is to permit . . . the
ultimate burden of proof [to remain] on the plaintiff . . . . In contrast, employer motive plays
no role in a claim for substantive denial of benefits.” (emphasis added) (citations omitted)).
       7
         It can be difficult to determine whether a claim arises from the denial of a substantive
entitlement or, instead, from a theory of discrimination or retaliation, especially in the joint
employment context. See, e.g., Stacy A. Manning, Application of the Interference and
Discrimination Provisions of the FMLA Pursuant to Employment Termination Claims, 81
Chi.-Kent L. Rev. 741, 748 (2006) (“The inconsistency as to which provision—and therefore
which standard—to apply exists between the district and circuit courts, within the individual
circuit courts, and among all of the circuit courts.”). This is especially true when an employer
terminates its employee’s position during an FMLA-protected leave, as “both of the Prohibited
Acts provisions are at issue . . . while some courts have concluded that an analysis of the
interference provision governs this fact pattern, other courts have concluded that an analysis
of the discrimination provision is appropriate.” Id. at 742; see also Colburn, 429 F.3d at 330
(“Notably, however, there is no clear demarcation in § 2615 between what is ‘interference’ and
what is ‘discrimination,’ and the terms overlap in some situations.”).

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                                  No. 12-40165

reinstatement after maternity leave. Keppel Amfels emphasizes that, as a
secondary employer, it had no obligation to provide reinstatement without a
request from Perma-Temp. But Keppel Amfels did have a responsibility not to
interfere with Cuellar’s substantive FMLA right for Perma-Temp to make such
a request. Indeed, that is the crux of Cuellar’s § 2615(a)(1) claim: “Keppel
Amfels’[s] actions . . . convinced both Perma-Temp and Cuellar it was fruitless
to refer her back to Keppel Amfels for reinstatement.” In my view, then, Cuellar
need not prove intent to succeed on her § 2615(a)(1) claim and the district court’s
application of the McDonnell Douglas burden-shifting regime was improper.
That said, I agree that Cuellar cannot state a genuine issue of material fact even
absent an intent requirement. For this reason, I join fully in the court’s opinion.




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