       Case: 12-60682        Document: 00512388400          Page: 1    Date Filed: 09/26/2013




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

                             FOR THE FIFTH CIRCUIT                                  FILED
                                                                           September 26, 2013

                                          No. 12-60682                            Lyle W. Cayce
                                                                                       Clerk


TODD W. ION,

                                                     Plaintiff – Appellant,
v.

CHEVRON USA, INCORPORATED,

                                                     Defendant – Appellee.



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


Before ELROD and HIGGINSON, Circuit Judges, and MARTINEZ,1 District
Judge.
PHILIP R. MARTINEZ, District Judge:
         Appellant Todd W. Ion, a former employee of Appellee Chevron USA, Inc.,
appeals the district court’s grant of summary judgment in favor of Chevron. Ion
alleges that Chevron terminated him in retaliation for exercising his rights
under the Family Medical Leave Act (“FMLA”). The district court held that,
while Ion had established the existence of a genuine dispute as to a material fact
regarding Chevron’s motivation, Chevron had established as a matter of law that
it would have terminated Ion despite any retaliatory motive. We disagree and,
therefore, REVERSE the district court’s grant of summary judgment to
1
    District Judge of the Western District of Texas, sitting by designation.


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                                        No. 12-60682

Appellees and REMAND for further proceedings consistent with this opinion.
I. Facts and Proceedings
       A. Background
       Todd Ion began work at Chevron’s Pascagoula Refinery in November 2006.
As one of Chevron’s three laboratory chemists, Ion’s duties included, among
other things, maintaining an assigned set of laboratory instruments. From 2008
to 2009, Ion’s supervisors were Steve Ogborn, chief chemist; Vince Dressler, lead
chemist; and Rich Kerns, laboratory supervisor.
       In November 2008, Ion and his wife separated, and his wife moved to
Kentucky with their five-year-old son. Ion reports having told Dressler about
the separation and informing him that he would be traveling to Kentucky on
weekends to visit his son.2
       B. Possible FMLA Leave
       In late 2008, Ion learned of Chevron’s leave policies for “employee[s] going
through ‘a life-changing event’ like a divorce.” Ion was “hesitant” to ask for leave
because it was a busy time at the chemistry lab, which had an audit scheduled
for March 2009. He was also hesitant because he knew that another chemist,
Pam Miller, would be taking maternity leave in August of 2009. Nevertheless,
he alleges that he discussed his interest in potential leave with Dressler,
including asking for advice about broaching the subject with Ogborn, who “could
be difficult and had to be approached delicately.”


2
  Ion submitted a declaration indicating that the facts section of his response to the motion for
summary judgment was, with some exceptions, “based on [his] personal knowledge.” He
“declare[d] under penalty of perjury that [these] statements are true and correct.” Although
unsworn documents usually cannot raise fact issues precluding summary judgment, Ion’s
declaration can be considered pursuant to the statutory exception found in 28 U.S.C. § 1746.
28 U.S.C. § 1746(2) (2006) (permitting unsworn declarations to substitute for an affiant’s oath
if the statements contained therein are made “under penalty of perjury” and verified as “true
and correct.”); see Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306–07 (5th Cir. 1988).


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      Ion testified that the chemistry lab held an all-day planning meeting on
February 5, 2009. During a break, he claims that he told Ogborn that he had
been granted custody of his son for six months. Ion further alleges having
informed Ogborn that he had moved into a rental home much closer to the plant;
that he had enrolled his son in a daycare close to the plant; that his son was
crying, refusing to eat, and not adjusting well; and that he would be spending
time with his son during lunchtime to help him adjust. Ion asked to meet with
Ogborn on February 9 to discuss taking a leave from work, and, according to Ion,
Ogborn agreed to meet. Additionally, Ion asked Ogborn for permission to leave
the February 5 meeting to join his son for lunch, and Ion reports that Ogborn
“readily gave [him] permission.” Ion left the meeting and returned while it was
still in progress, which he asserts that “[e]verybody in the department saw.”
      Ogborn, on the other hand, testified that he has no memory of a
conversation with Ion on February 5, 2009. He also testified that he has no
memory of Ion ever expressing an interest in taking leave.
      According to Ion, Ogborn cancelled the February 9 meeting to discuss
leave because he was too busy. Over the next two or three weeks, Ion says,
Ogborn “cancelled another two meetings to discuss [his] request.” Finally,
Ogborn allegedly told Ion that they would have to wait to discuss the possible
leave until after the audit, which would end March 13, 2009.
      C. Suspension
      On March 16, 2009, Ion’s supervisors met with him to inform him that he
was being suspended for a five-day period. The supervisors explained to Ion that
two major concerns had led them to suspend him temporarily—performance
deficiencies and the excessive length of his lunch breaks—and they presented
Ion with a “Performance Agreement and Attendance Improvement Plan”
(“PIP/AIP”) meant to “address [his] performance deficiencies,” “specifically issues

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relating to work times and accountability.”
       According to Ion’s PIP/AIP, his alleged performance deficiencies consisted
of the following: “[l]ack of urgency/responsiveness concerning [his] assigned
instruments,” “not taking full responsibility and ownership of assigned
instruments,” routine lack of availability “to come on-site to repair,” missed
deadlines and incomplete work, and “lack of communication to . . . customers”
that impeded the efficient running of the laboratory. Ion’s PIP/AIP states that
these performance deficiencies were initially discussed with Ion at his December
2008 pre-review meeting and again at Ion’s in-person performance review in
January 2009. While Ion admits having discussed these concerns with his
supervisors at the December 2008 meeting, he testified that he was “absolutely
certain” that no negative items were discussed during his January 2009
performance review.3 He further claims that the list of deficiencies in his
written performance evaluation, which was issued after his in-person
performance review in January 2009,4 was not written at the time of his January
review. He also testified that his performance rating for 2008 was never
discussed with him, although it is listed on the performance evaluation.5

3
 Indeed, Ion reports that, during his January 2009 performance review, Ogborn “acknowledged
that [Dressler] had told him about [Ion’s] separation and family difficulties” and “said it must
be like a death in the family.” Ogborn, on the other hand, testified that while he knew “that
[Ion was] having some marital problems,” “[t]hat [was] all [he] knew.” Ion maintains that he
thanked Ogborn for his understanding and requested a separate meeting to discuss the
possibility of leave, to which “Ogborn was receptive.”

4
  It is unclear from the record when Ion’s written performance evaluation was completed.
Although Ion’s in-person performance review was held at the end of January 2009, Ion testified
that he never received a final copy of his evaluation, since “[he] was not . . . there [at Chevron]
long enough to get it.” Additionally, although the evaluation includes a section to be signed
by both the employer and employee, Ion’s evaluation is neither signed nor dated.

5
 Ion received a 2- performance rating for 2008. Although a 2- is the lowest score in the “Meets
Performance Expectations” range of Chevron’s 1-to-3 employee performance scale, Ogborn


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       In addition to the alleged performance deficiencies, Ion’s PIP/AIP lists “a
pattern of abuse” regarding attendance as another reason for Ion’s suspension.
Ogborn and Dressler had first met with Ion about the length of his lunch breaks
on March 11, 2009. Ogborn testified that he and Dressler noticed Ion’s absences
when they were unable, on several occasions, to contact him during the lunch
hour. After reviewing Chevron’s security-gate records, Ogborn concluded that
Ion was “taking excessive periods of time for lunch.” At the March 11 meeting,
according to Ion, Ogborn accused him of “stealing from the company” and told
him that the breaks constituted being absent without leave, a “very serious
violation of Chevron’s policies.”
       Ion admitted in his deposition that he had been taking more than thirty
minutes for lunch. He testified that he was “not sure if [he] ever saw anything
that said that [the requirement] was 30-minute lunches” for exempt salaried
employees and that “[r]outinely,” “[e]verybody” took longer than thirty minutes.
He also claims that he “regularly told Vince Dressler that he was off to the
daycare” at lunchtime, and Dressler “never objected.” On March 12, Ion brought
Ogborn the sign-in sheets from his son’s daycare to substantiate his claims about
where he was during his lunch breaks. Ogborn testified, “There were some days
in which the log records matched up with the absences listed on the calendars.
There were multi [sic] days in which they did not.” Although he reported having
remaining questions about what Ion did during his lunch breaks, Ogborn did not
investigate further.
       Ion’s PIP/AIP, issued on March 16, initiated a five-day suspension from
March 16 through March 20, 2009. It concluded by warning Ion that “[f]ailure
to comply with agreements will result in further disciplinary action up to and
including termination” and that “if significant and sustainable progress is not
characterized it as a “deficiency” in his deposition.


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shown during this PIP or if a violation of . . . Company policies occurs, the most
likely outcome will be termination.”
       Ion reports that he received the PIP/AIP and added his signature to
indicate “that [he] received it,” although he told Ogborn that he did not agree
with its contents.       According to Ion, Ogborn told him there would be no
discussion of leave while he was suspended. When Ion replied that he still
wanted information about leave, Ogborn “got loud and hostile” and told Ion that
he would have to ask the Employee Assistance Program (“EAP”) for help, since
Ion would “not get it from [him].” Ion left the meeting.6
       D. Initiating Leave
       On March 19, Ion contacted Tina Taylor, an EAP counselor at Chevron.
Ion claims that Taylor told him they could “pull [him] from the workplace and
send [him] to a license[d] professional counselor for evaluation.” Taylor added,
“Your situation is exactly what this program is for. We’ve got a program for you.
FMLA leave might be available.” Taylor then scheduled an appointment for Ion
with Dr. Ronald Berman, a licensed professional counselor in Mobile, Alabama.
Ion reports that Taylor assured him that the sessions would be confidential and
that he did not “have to sign a general medical release.” According to Ion, she
also told him “to call in sick every day, and she would start the paperwork.”
       Ion met with Dr. Berman “on March 19 or 20, 2009.” On March 23, the
day Ion was scheduled to return to work, Dr. Berman signed FMLA form 380,
“Certification of Health Care Provider,” certifying that Ion was suffering from


6
  Ion’s eventual termination letter noted that, after leaving the meeting to collect his personal
items, Ion also took “Chevron company equipment (laptop, blackberry, Chevron credit cards,
etc.)” home with him. In her deposition, HR Business Partner Johnette Watson clarified that
this was included to ensure that Chevron “got those items back.” She also said that it was
“strange” for Ion to have taken that equipment, although Ogborn had previously suggested to
Ion that he take his computer home to make up for his unavailability on weekends.


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                                      No. 12-60682

a serious health condition as defined by the FMLA. According to the form, Ion
was incapacitated and unable to perform work of any kind. Berman listed the
medical facts supporting certification as “too much stress—can’t focus on his
job—single parent.” He reported the anticipated end date of the incapacitation
as “undetermined.”        He also indicated that Ion would need “therapy and
eval[uation] for medication” and that Ion required an estimated twenty
“additional treatments.” The form was faxed to Chevron on March 23 at 4:03
p.m., although it was not stamped “received” by Chevron until March 24.
       On March 23, Ion called Ogborn to report that he was sick and under the
care of an EAP counselor. Ogborn told Ion to report the absence to Chevron’s
nurses’ station. In a “note to file” written on the 23rd, Ogborn wrote that “[Ion]
called in sick at 6:09 am this morning” and thus did not attend a meeting to
discuss the PIP/AIP with Ogborn, Dressler, Kerns, and HR Business Partner
Johnette Watson.7 Ion alleged that he called in sick in accordance with Taylor’s
instructions that he should “call in sick every day until all this goes through.”
       On March 24, Ion again called in sick. He also informed Ogborn that he
was working on paperwork for some kind of short-term disability, as Ogborn’s
“note to file” from that day confirms. Ogborn again asked him to report the
absence to the nurses’ station. Ogborn also called Watson, who recommended
sending an e-mail to the clinic asking them to keep him informed “as to when
[Ion] will be back to work.”
       Ogborn followed Watson’s recommendation and e-mailed the clinic, asking
them to “keep [him] informed as to [Ion’s] status and when [he could] expect
[Ion] back.”    He copied Watson and Chris Melcher, the refinery’s General



7
 The record does not address when this meeting was originally scheduled, nor does it indicate
whether Ion was made aware of it.


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Manager,8 on the e-mail. Melcher responded:
              It looks like Mr. Ion is playing games with us after his
              suspension. I assume the “paperwork for short-term
              disability” comment means that he is looking for a
              doctor to give him some FMLA-qualified time off. What
              are our options moving forward?


       E. Clinic Incident
       On the same day, March 24, Chevron nurse Angela Fortney sent an e-mail
to Ion informing him that his “FMLA paperwork ha[d] been sent to [him] in the
mail.” She continued, “[Y]ou need to report to the clinic ASAP to complete a GO-
153 form.” A GO-153 form is entitled “Authorization for Release of Medical and
Other Information” and requires the contact information of the employee’s
health care provider. Watson testified that the form is necessary to “certify the
FMLA” so that the company can “talk to the physician to make sure that the
illness qualifies as an FMLA.”
       Ion went to the clinic the next day, March 25, after another nurse asked
him to come in and “sign some paperwork for disability.” According to Ion, once
he arrived at the clinic, one of the nurses requested that he sign the GO-153
form. The nurse informed him that the form was “a medical release that would
allow Chevron to get copies of his medical records.” Ion told the nurse that Tina
Taylor, an EAP counselor, had assured him he would not have to sign a release.
He reports that the nurse responded that “she was not allowed to answer any
questions or give him any information,” and “[s]he insisted that [he] had to sign
the form.” Ion asserts that he asked two other nurses about the same matter;


8
  We refer to Melcher as the refinery’s “General Manager” pursuant to Ion’s description of
Melcher’s position. However, Melcher’s exact job title is unclear. The record indicates that he
was Watson’s “immediate boss,” and Ogborn refers to needing Melcher’s “permission” to go
forward with Ion’s suspension.


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both told him “they could not answer any questions.” Instead, they referred him
to Angela Fortney, who was not available.
      Ion reports becoming “extremely frustrated because [the nurses] were
asking him to sign a form that they weren’t explaining.” After a nurse told him
to ask Human Resources, he called Johnette Watson. When he asked for
information explaining the GO-153 form, Watson gave him various policy
numbers to request from Ogborn. Ion requested and reviewed the policies, but
he alleges that “none explained the form.” He again contacted Watson, who gave
him two additional policy numbers. Ion reviewed these policies as well but found
no mention of GO-153 forms. Ion then returned to the clinic “looking for Ms.
Taylor,” the EAP counselor. Another nurse took him to Taylor’s office, but
Taylor was not there. He did, however, see Fortney and informed her that “he
needed to ask . . . some questions about the difference in short-term disability,
long-term and FMLA.” Ion reports that Fortney “exploded. She stood up and in
a loud voice demanded that Ion get out and leave the clinic.” Ion recalls feeling
“speechless, shocked and humiliated.” He left the refinery without signing the
form. The next day, March 26, Ion reports receiving a call from Alice Brown,
who told him that Chevron had assigned her to be his Case Manager for his
FMLA leave. Ion alleges that “[s]he apologized for the nurses having called him
into the clinic” and “said that should not have happened.”
      In his “note to file” about the incident, dated March 25, Ogborn wrote:
            [Ion] refused to sign the [GO-153] form stating that the
            EAP Rep . . . said that he didn’t need to sign the form.
            [Ion] asked the Clinic personnel many HR questions
            regarding policies and pay of which they didn’t know
            the answers to and repeatedly referred him to HR. . . .
            He was asked to leave but tried to circumvent leaving
            by getting another clinic employee . . . to take him to
            [Taylor’s] office even after he was told that [Taylor]


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                                     No. 12-60682

              wasn’t in today.


The clinic employees told Ogborn that Ion had made them feel uncomfortable.
They described his demeanor to Ogborn as “passive/aggressive harassment,”
“disgruntled,” and “angry” and reported that Ion told the nurses he “didn’t trust
them.”
       Ogborn testified that this incident was serious enough to call security “for
a potential workplace violence situation.” Watson testified that, although she
“[could not] recall” believing that Ion posed any threat, “[s]ecurity had some
reservations” about Ion. Revere Christophe, a security officer at the refinery,
testified that he conducted a “threat assessment” regarding Ion after the clinic
incident on March 25.9         In this assessment, he determined that Ion was
“belligerent and abusive toward the nursing staff.” Because this behavior
“[g]ave rise to concerns of workplace violence,” Christophe banned Ion from
entering Chevron’s property.
       F. Conversation with James Peel
       The same day as the clinic incident, March 25, James Peel, Ion’s office
mate, approached Dressler about statements that Ion had made to him on March
12, 2009. In a follow-up e-mail to Ogborn, Peel claimed that Ion had come back
from meeting with Ogborn and Dressler about his lunch hour absences “in an
angered state of mind.” “He openly shared with me his frustrations,” Peel wrote.
“He spoke of quitting his job. Then he mentioned faking a nervous breakdown
related to his divorce so he could take a leave of absence with FMLA and EAP
benefits. He also boasted about how he could get paid for being at home.” Peel
explained in his deposition that he had not told Ogborn or Dressler of the

9
 Chevron attached Christophe’s affidavit to its “Reply in Support of Its Motion for Summary
Judgment,” filed February 3, 2012. The affidavit was sworn to on February 2, 2012.


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                                   No. 12-60682

conversation earlier because he “feared that . . . something bad would happen
and [Ion] would get fired or whatever.” He changed his mind, however, because,
as he testified, “I have a problem, a philosophical problem with doing somebody
else’s work when I know they’re sitting at home sipping beers watching Oprah
or The View or whatever.” Peel also testified that Ion “sounded . . . like he . . .
probably would” follow through with this plan.
      G. Termination
      On the same day, March 25, Ogborn forwarded Peel’s e-mail to Chris
Melcher and Johnette Watson along with the following comments:


            It is clear to me that [Ion] is doing exactly what he told
            [Peel] he was going to do. . . . I think strong action
            should be taken since [Ion] has premeditatedly
            plan[n]ed to fake an “illness” and bilk Chevron. We
            don’t need this type of criminal behavior in Chevron.


Following this e-mail, Melcher, Watson, and Ogborn had a conversation about
“[t]he fact that [Ion] had told Mr. Peel that he was going to fake an illness. And
then, in fact, he had been out of work after his suspension.” When asked what
was discussed, Watson testified:


            The fact that Mr. Peel was alleging that [Ion] was going
            to fake an illness. And the fact that he hadn’t been at
            work. And then also, I believe it was the same day that
            Mr. Peel came forward that all the issues happened in
            the clinic. And so it was kind of one thing after the
            other.


Watson testified that Melcher was the first to suggest termination.
      The next day, March 26, Ion again called in sick. He told Ogborn that



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                                        No. 12-60682

“Alice Brown had the FMLA paperwork” and informed him that “he would be out
of work [until] approximately April 27.” Ogborn told him to let the clinic know.
         Later that week, Melcher contacted Watson to let her know that they were
terminating Ion. She drafted the termination letter, which was reviewed by
Melcher, Ogborn, and an in-house attorney. Watson testified that the final letter
was “an accurate statement of the reasons Mr. Ion was terminated.” The letter,
signed by Ogborn, was sent to Ion on April 2, 2009,10 and reads as follows:
                The reason for the termination is an abuse of
                management constituting insubordination.

                On March 16, 2009, you were put on a Performance
                Improvement Plan, received a 5 day suspension and
                given a final warning for poor performance and
                behaviors, being absent without leave and falsification
                of time records. When you left our meeting to go to
                your office to collect some personal belongings, you also
                took Chevron company equipment (laptop, blackberry,
                Chevron credit cards, etc.), cleaned out all your
                personal belongings and indicated your anger to your
                office mate. On March 25th we learned you had
                previously stated to this same office mate that you
                would fake a nervous breakdown related to your
                personal situation so you could get paid for being at
                home. You haven’t returned to work since your
                suspension.

                Based on your overall performance, the seriousness of
                the policy violations and your behavior following the
                March 16th discussion, Chevron management has
                decided to end your employment effective immediately.


The letter also informed Ion of his right to appeal the decision “through the
refinery’s Problem Resolution Process,” which Ion did not exercise.

10
     Dr. Berman cleared Ion to return to work on May 18, 2009.


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        H. Procedural History
        On March 29, 2011, Ion filed a complaint against Chevron with the
District Court for the Southern District of Mississippi. In his Complaint, Ion
alleged two violations of the FMLA: (1) that Chevron had terminated him in
retaliation for taking FMLA leave, a violation of 29 U.S.C. § 2615(a)(2); and (2)
that Chevron had “interfered with his right to take FMLA leave and to be
reinstated upon his return,” a violation of 29 U.S.C. § 2615(a)(1). On November
30, 2011, Chevron moved for summary judgment on Ion’s retaliation claim. The
district court granted the motion on April 11, 2012, holding that Chevron “ha[d]
shown that it would have terminated Ion even if he had not applied for FMLA
leave.” Chevron then filed a second summary-judgment motion to address Ion’s
interference claim. The district court granted this motion as well, since the
parties agreed that the court’s ruling on the first summary-judgment motion
compelled dismissal of Ion’s interference claim. Ion appealed the district court’s
ruling on his retaliation claim. Because Ion addressed only the retaliation claim
on appeal, he has waived his FMLA interference claim. See United States v.
Pompa, 434 F.3d 800, 806 n.4 (5th Cir. 2005) (citing Fed. R. App. P. 28(a)(9)(A);
United Paperworkers Int’l Union AFL–CIO v. Champion Int’l Corp., 908 F.2d
15252, 1255 (5th Cir. 1990)) (“Any issue not raised in an appellant’s opening
brief is deemed waived.”).
II.     Standards of Review
        A. Summary Judgment Standard
        We review a grant of summary judgment de novo, applying the same
standard as the district court. Vaughn v. Woodforest Bank, 665 F.3d 632, 635
(5th Cir. 2011) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308 (5th Cir.
2004)). Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment
is appropriate only “if the movant shows that there is no genuine dispute as to

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                                  No. 12-60682

any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A genuine dispute as to a material fact exists when, after
considering the pleadings, depositions, answers to interrogatories, admissions
on file, and affidavits, a court determines that the evidence is such that a
reasonable jury could return a verdict for the party opposing the motion.
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007)
(citations omitted). A court considering a motion for summary judgment must
consider all facts and evidence in the light most favorable to the nonmoving
party. Id. (citing United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285
(5th Cir. 2006)). Moreover, a court must draw all reasonable inferences in favor
of the nonmoving party and may not make credibility determinations or weigh
the evidence. Vaughn, 665 F.3d at 635 (citing Sandstad v. CB Richard Ellis,
Inc., 309 F.3d 893, 896 (5th Cir. 2002)). In addition, a court “must disregard all
evidence favorable to the moving party that the jury is not required to believe.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (citation
omitted).
      B. Family and Medical Leave Act and Mixed-Motive Framework
      The FMLA entitles employees to take reasonable leave for medical
reasons. 29 U.S.C. § 2601(b)(2) (2006). Additionally, the act prohibits employers
from discharging or in any other manner discriminating against an individual
for opposing any practice made unlawful by the act. Id. § 2615(a)(2). The
Department of Labor has interpreted this statutory provision to forbid employers
from terminating employees for having exercised or attempted to exercise FMLA
rights. 29 C.F.R. § 825.220(c).
      We held in Richardson v. Monitronics International, Inc., that the mixed-
motive framework applies to FMLA claims in which retaliatory animus was a
motivating factor in an adverse employment action. 434 F.3d 327, 333 (5th Cir.

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                                        No. 12-60682

2005). To escape liability under this framework, an employer must show that
the retaliation was not the but-for cause of its action. Id.
       The Supreme Court’s recent decisions in University of Texas Southwestern
Medical Center v. Nassar, 133 S. Ct. 2517 (2013), and Gross v. FBL Financial
Services, Inc., 557 U.S. 167 (2009), have limited the applicability of the mixed-
motive framework in cases involving Title VII and the Age Discrimination in
Employment Act. In this case, neither party has sought additional briefing in
light of Nassar or urged this court to revisit the applicability of the mixed-motive
analysis. Because the district court addressed—and the parties briefed, argued,
and do not now contest resolution of—this case under the mixed-motive rubric,
we apply it here.11 We emphasize that we need not, and do not, decide whether
Nassar’s analytical approach applies to FMLA-retaliation claims and, if so,
whether it requires a plaintiff to prove but-for causation. Based on the evidence
addressed in sections III(C)–(D), we conclude that a genuine issue of material
fact exists under either standard.
       To survive summary judgment under the mixed-motive burden-shifting
framework, an employee must first make a prima facie case of FMLA retaliation.
Richardson, 434 F.3d at 333. The burden then shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the adverse employment
action. Id. If the employer carries this burden, the burden shifts once more to


11
  In Gross, the Court noted that, “[w]hen conducting statutory interpretation, [courts] ‘must
be careful not to apply rules applicable under one statute to a different statute without careful
and critical examination.’” Gross, 557 U.S. at 174 (quoting Fed. Express Corp. v. Holowecki,
552 U.S. 389, 393 (2008)). The relevant provision of the FMLA uses the word “for” in lieu of
the phrase “because of,” the language contained in both the Title VII provision at issue in
Nassar, see 42 U.S.C. § 2000e–3(a) (2006), and the ADEA provision at issue in Gross, see 29
U.S.C. § 623(a)(1) (2006). The Department of Labor has interpreted this provision to prohibit
employers from “us[ing] the taking of FMLA leave as a negative factor in employment actions.”
29 C.F.R. § 825.220(c) (2013). Whether these facts prove consequential is a question best left
for another day.


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                                   No. 12-60682

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. If an employee is successful in meeting
the burden, an employer may still escape liability, and have summary judgment
granted in its favor, by providing sufficient evidence to establish as a matter of
law that it would have taken the adverse employment action despite its
retaliatory motive. Richardson, 434 F.3d at 336. “The employer’s final burden
‘is effectively that of proving an affirmative defense.’” Id. at 333 (quoting
Machinchik v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005)).
III.     Analysis
         A. Prima Facie Case
         Under the first step of the mixed-motive burden-shifting framework, Ion
must establish a prima facie case of FMLA retaliation. To do so, Ion must show
that (1) he was protected under the FMLA, (2) he suffered an adverse
employment action, and (3) the adverse action was taken because he sought
protection under the FMLA. Maunder v. Metro. Transit Auth. of Harris Cnty.,
Tex., 446 F.3d 574, 583 (5th Cir. 2006) (citation omitted).          Whether Ion
established a prima facie case of FMLA retaliation is not in dispute on appeal.
Both the district court, in its opinion, and Chevron, in its summary judgment
motion, assumed that Ion established a prima facie case. Moreover, Chevron did
not raise this issue on appeal. Thus, we will proceed to the next step of the
mixed-motive framework.
         B. Legitimate, Nondiscriminatory Reasons
         The second step of the framework requires that Chevron articulate a
legitimate, nondiscriminatory reason for Ion’s termination. The district court
held that Chevron had met its burden by articulating the following
nondiscriminatory reasons for termination: (1) Ion’s unexcused absences from

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                                 No. 12-60682

work, (2) his poor performance, (3) his statements to Peel regarding faking a
nervous breakdown, (4) his removal of Chevron property from his office, and (5)
his behavior toward the clinic employees. Whether Chevron met its burden
under this step is also not in dispute on appeal. Ion did not raise this issue in
his appeal, so we will accept the district court’s finding and next consider the
third step of the mixed-motive framework.
      C. Motivating Factor
      In the third step, Ion bears the burden of offering sufficient evidence to
create a genuine issue of fact that Chevron’s nondiscriminatory reasons,
although true, are only some of the reasons for its conduct, another of which was
discrimination. In other words, Ion must offer evidence to show that the exercise
of his FMLA rights was a motivating factor in his termination. Ion offered the
following evidence: (1) the termination letter’s mention of insubordination, (2)
the termination letter’s mention that he did not return to work after his
suspension, and (3) the e-mail dated March 24, 2009, from General Manager
Chris Melcher.
      First, Ion argues that the termination letter’s mention of his
“insubordination” can only refer to his refusal to sign the GO-153 form. Chevron
denies Ion’s contention but does not explain what conduct constituted
“insubordination.” When asked during his deposition whether “insubordination”
included Ion’s failure to sign the GO-153 form, Ogborn testified, “Not to my
knowledge.” Yet, despite Chevron’s lack of clarity, Ion does not offer any
evidence to support his contention—he merely states the allegation. After
analyzing the    termination    letter, the district    court   concluded   that
“insubordination” did not include Ion’s refusal to sign the GO-153 form. Instead,
the district court concluded that “insubordination” referred to the events listed
in the letter. The district court went on to hold that Ion’s speculation about

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                                   No. 12-60682

what Chevron meant was insufficient to show that Chevron terminated him
because of a retaliatory motive.
       In determining whether the mention of “insubordination” in the
termination letter qualifies as retaliatory evidence, we are mindful that we must
interpret the facts and draw all reasonable inferences in favor of the nonmoving
party, Ion. Even with this deference, however, we agree with the district court
that Ion’s allegation is unsupported and does not rise above speculation.
Without more, we cannot draw Ion’s requested inference in his favor, and his
mere speculation is insufficient to create a fact issue regarding whether
retaliation was a motivating factor. Reyna v. Cross Seas Shipping Corp., No. 92-
7440, 1993 WL 67129, at *2 n.7 (5th Cir. Mar. 4, 1993) (unpublished but
persuasive) (“Mere speculation is insufficient to defeat a summary judgment
motion . . . .”).
       Second, Ion argues that Ogborn’s statement in the termination letter,
“[y]ou haven’t returned to work since your suspension,” indicates that his FMLA-
related absence was a reason for his termination. Chevron argues that this
language is merely a factual statement, not a reason for Ion’s termination. The
district court held that “a reasonable jury could conclude that this mention of
Ion’s absence from work, in the litany of other complaints about his actions,
showed that Chevron considered FMLA protected leave in terminating him.” We
agree with the district court. Drawing all reasonable inferences in favor of the
nonmoving party, a reasonable jury could conclude that the inclusion of this
statement in the same paragraph listing the reasons for Ion’s termination could
indicate that his absence was also a reason for his termination.
       Third, Ion also argues that an e-mail sent by General Manager Chris
Melcher to Ogborn, Alice Brown, and Johnette Watson on March 24, 2009, is
evidence of Chevron’s retaliatory motivation. The email states:

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                                     No. 12-60682

                 It looks like Mr. Ion is playing games with us
                 after his suspension. I assume the “paperwork
                 for short-term disability” comment means that he
                 is looking for a doctor to give him some FMLA-
                 qualified time off. What are our options moving
                 forward?

The district court did not discuss this piece of evidence in its opinion. Drawing
all reasonable inferences in favor of Ion, this e-mail serves as evidence that
General Manager Chris Melcher was upset that Ion was seeking FMLA-qualified
time off. Further, a jury could reasonably conclude that Melcher was attempting
to stop Ion from taking FMLA leave or punish him for taking FMLA leave.
Therefore, this evidence is sufficient to create a genuine issue of fact as to
whether Ion’s FMLA-protected leave was a motivating factor in Chevron’s
decision to terminate him.
       D. Affirmative Defense
       Finally, the burden again shifts to the employer to prove that it would
have taken the same action despite its discriminatory animus. Richardson, 434
F.3d at 333. At the summary judgment stage, Chevron must provide sufficient
evidence to establish as a matter of law that it would have fired Ion despite his
FMLA-related absence. Id. at 336. This final burden “is effectively that of
proving an affirmative defense.” Id. at 333.
       To satisfy this burden, Chevron relies on the same evidence that it
presented in the second step: (1) Ion’s unexcused absences from work, (2) his
poor performance, (3) his statements to Peel regarding faking a nervous
breakdown, and (4) his behavior toward the clinic employees. Reliance on the
same evidence under both steps may be adequate;12 however, the final step

12
   See Pulliam v. Tallapoosa Cnty. Jail, 185 F.3d 1182, 1186 (11th Cir. 1999) (“In either
situation, the reasons—the proof—is the same.”).


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                                       No. 12-60682

requires the employer to meet a more stringent burden of persuasion and show
that it would have taken the same action regardless of the retaliatory motive.
See, e.g., Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1217 (5th Cir. 1995).
          1. Ion’s Absences and Poor Performance
       In its opinion, the district court considered persuasive the fact that
Chevron had begun the disciplinary process against Ion well before he applied
for FMLA leave. We believe, however, that evidence of Ion’s alleged unexcused
absences and poor performance fails to satisfy Chevron’s burden. While it is true
that Chevron disciplined Ion for his absences and poor performance prior to his
application for FMLA leave, it is also true that Chevron’s disciplinary response
for these actions had already been determined. Chevron’s claim that it would
have fired him based on his absences and poor performance is disingenuous and
contradicted by the evidence. Chevron had the opportunity to fire Ion based on
these deficiencies and chose not to do so. As discipline, Chevron elected to
suspend Ion for five days and place him on a PIP/AIP. Significantly, Chevron
did not indicate to Ion that it was considering further discipline for his prior
absences and performance.13           Instead, Chevron gave Ion a final warning,
implying that he had at least one more opportunity to retain his employment.
Moreover, Ogborn testified during his deposition that if Ion had returned to
work on March 23, 2009, Chevron would have reinstated him. For these
reasons, we believe that evidence of Ion’s absences and poor performance prior
to his suspension does not satisfy Chevron’s burden to prove that it would have
fired Ion despite its retaliatory motive.


13
  Although the PIP/AIP contained language about the possibility of further disciplinary action,
it suggested that such action would be based on future failure to make significant and
sustainable progress. Because Ion was terminated before returning to work, he was not
afforded an opportunity to comply with the PIP/AIP.


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                                  No. 12-60682

         2. James Peel’s Testimony and Clinic Incident
      Next, the district court considered Chevron’s claim that it fired Ion
because of two incidents that occurred during Ion’s suspension: (1) James Peel’s
allegation that Ion told him he was planning on faking a nervous breakdown,
and (2) Ion’s alleged abusive behavior toward clinic employees. Ion denies both
allegations.
      The district court relied on a Fifth Circuit case, Jackson v. Cal-Western
Packaging Corporation, 602 F.3d 374 (5th Cir. 2010), for the proposition that in
assessing Chevron’s claim, the proper inquiry is whether Chevron reasonably
believed and relied on the information received from its employees in good faith.
The court found that Ion had provided no evidence that Chevron’s reliance on
the reports of employees was in bad faith, and that for this reason, Chevron had
met its burden under the final step. However, the case is distinguishable
because it was decided with considerably less evidence of retaliatory motive than
is present in the instant case.
         3. Jackson v. Cal-Western Packaging Corp.
      In Jackson, the plaintiff was a sixty-nine-year-old male who was
terminated after a coworker complained that the plaintiff had sexually harassed
her. Id. at 376. The plaintiff claimed that his employer discriminated against
him on account of his age. Id. In assessing his claim, the court applied the
McDonnell Douglas burden-shifting framework, in which the employee retains
the burden to demonstrate that any legitimate, nondiscriminatory reason the
employer proffers for the adverse employment action is in fact pretextual. Id.
at 377–78.
      In Jackson, the parties did not dispute whether the plaintiff had alleged
a prima facie case. Id. at 378. The parties also did not dispute that the plaintiff
was fired for a legitimate, nondiscriminatory reason—sexual harassment. Id.

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                                       No. 12-60682

The parties’ dispute focused on whether the plaintiff had successfully established
that the defendant’s reasons for his termination were pretextual. Id. at 378–79.
In analyzing the claim, the court stated that when considering a case where an
employer discharges an employee based on another employee’s complaint, “the
issue is not the truth or falsity of the allegation, but whether the employer
reasonably believed the employee’s allegation and acted on it in good faith.” Id.
at 379.
       In attempting to establish pretext, the plaintiff in Jackson presented as
evidence (1) his own statements denying that he had made sexually harassing
comments, (2) a purported derogatory statement made by a supervisor, (3)
evidence of disparate punishment, and (4) a coworker’s testimony that she did
not perceive his comments to be harassing. Id. at 379. However, the court did
not credit all of the plaintiff’s pretext evidence. First, the court did not consider
the evidence of disparate treatment or the coworker’s testimony because the
plaintiff had failed to identify this evidence in his opposition to the summary
judgment motion. Id. at 379–80. Second, the district court considered the
purported derogatory comment to be a “stray remark” since the plaintiff
provided no proof that the comment was proximate in time to his firing or
related to his termination. 14 Id. at 380–81. Therefore, the only pretext evidence
that the court considered in its analysis, besides this “stray remark,” was the
plaintiff’s own statements denying the allegations. Id. at 380. With only this
evidence before it, the court held that this evidence was insufficient to establish


14
   “Comments are evidence of discrimination only if they are ‘1) related to the protected class
of persons of which the plaintiff is a member; 2) proximate in time to the complained-of adverse
employment decision; 3) made by an individual with authority over the employment decision
at issue; and 4) related to the employment decision at issue.’ Comments that do not meet these
criteria are considered ‘stray remarks,’ and standing alone, are insufficient to defeat summary
judgment.” Id. at 380 (citations omitted).


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                                  No. 12-60682

a genuine issue of material fact as to pretext. Id. (“This comment alone, or in
combination with Jackson’s uncorroborated denial of any sexual harassment, is
insufficient to establish a genuine issue of material fact as to pretext. . . .
Without more, we simply cannot conclude that there is a triable issue of fact as
to whether [the defendant] discriminated against Jackson . . . .” (emphasis
added)).
           4. Jackson Is Distinguishable
      Jackson is distinguishable from the instant case. Unlike the plaintiff in
Jackson, Ion does not rely solely on his own statements denying Chevron’s
allegations. Ion has presented significantly more evidence that Chevron was
motivated by discriminatory reasons—and not merely reliance on other
employees’ reports of Ion’s misbehavior—than the plaintiff in Jackson. Here, Ion
has offered an e-mail written by General Manager Melcher, in which Melcher
references Ion’s attempt to exercise his FMLA rights and asks Ion’s supervisor,
Ogborn, for “options.” The temporal proximity between when the e-mail was
sent, when Peel came forward with Ion’s alleged statements, when Ion was
asked to come to the clinic to sign a medical records release, and when Ion was
terminated is noteworthy and raises serious questions about Chevron’s motives
for terminating Ion.
        5. Chevron Has Not Established as a Matter of Law that It
           Would Have Terminated Ion Despite Its Retaliatory Motive
      Pursuant to the mixed-motive framework, it is Chevron’s burden to prove
that it would have terminated Ion despite any retaliatory motive. In arguing
that it would have terminated Ion despite any retaliatory motive, Chevron first
offers evidence that Ion told his coworker, Peel, that he should fake an illness so
that he could take a paid leave of absence pursuant to the FMLA. Ion denies
this allegation. In addition, Ion presents the e-mail from Melcher that shows



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                                          No. 12-60682

that Chevron was motivated to retaliate against him for taking FMLA leave. Ion
suggests that the timing of Peel’s revelation to Ogborn, in light of Melcher’s e-
mail, is suspicious. Moreover, Chevron concluded that Ion was faking a medical
condition after taking Peel’s account of the matter at face value without any sort
of investigation—despite Chevron’s own counselor in its Employee Assistance
Program referring Ion to a licensed professional counselor of Chevron’s choosing,
and that counselor certifying that Ion suffered from a serious health condition
as defined by the FMLA. Chevron’s failure to conduct even the most cursory
investigation, confront Ion about Peel’s statements, or seek a second opinion
under the FMLA15 calls into doubt Chevron’s reasonable reliance and good faith
on Peel’s statements, and, at the very least, creates a fact issue as to whether it
would have terminated Ion despite its retaliatory motive.
       Chevron next offers evidence that Ion was verbally abusive toward clinic
employees on March 25, 2009, when asked to sign a GO-153 form. In support,
Chevron provides an affidavit by Revere Christophe, a Facility Security Officer,
in which Cristophe testifies that he conducted interviews with the clinic
employees and concluded that Ion had engaged in “belligerent and abusive
conduct toward the nursing staff in the clinic.” In addition, Chevron offers a
note written by Ogborn in which he describes Ion’s demeanor toward the clinic
employees as “passive/aggressive harassment” and reports that Ion made the
employees feel uncomfortable. Ion again denies this allegation and once more
points to Melcher’s e-mail as proof of Chevron’s retaliatory motive. Ion argues
that he was merely asking questions about the GO-153 form, including whether

15
  See 29 U.S.C. § 2613(c)(1) (2006) (“In any case in which the employer has reason to doubt the
validity of the certification provided . . . for leave . . . , the employer may require, at the expense
of the employer, that the eligible employee obtain the opinion of a second health care provider
designated or approved by the employer concerning any information certified . . . for such
leave.”).


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                                      No. 12-60682

he was required to sign it. When the clinic staff could not answer his questions,
Ion claims that he sought answers from Ogborn, Human Resources Manager
Johnette Watson, and finally the head nurse, Angela Fortney—none of whom
could answer Ion’s questions. Ion argues that using his refusal to sign the GO-
153 form as a basis for terminating him is a violation of the FMLA and that
Chevron’s allegations about his behavior are disingenuous.16 On the other hand,
Chevron argues that it did not fire him because of his refusal to sign the form,
but for his behavior when asked to sign the form. We find this argument to be
without merit.
       First, the fact that the termination letter is devoid of any reference to the
clinic incident is significant. It is curious that the termination letter would
include reference to Ion taking Chevron company equipment home, an act that
Watson testified was not wrongful, but include no reference to the clinic incident,
which allegedly included concerns of workplace violence. Moreover, when asked
during her deposition whether the letter was an accurate statement of the
reasons Ion was terminated, Watson, who drafted the termination letter,
answered affirmatively. The omission of the clinic incident from the termination
letter calls into question whether Chevron truly relied on the clinic incident as
a reason for terminating Ion. Second, all accounts of the clinic incident offered
by Chevron are vague and include no specific or objective description of Ion’s
behavior. The accounts do not describe foul language, physical manifestations
of anger, or any other description of Ion’s behavior outside of Ion asking
questions about having to sign the GO-153 form. The failure to bring forth any
evidence about Ion’s actual behavior calls into doubt Chevron’s reasonable belief


16
  “If an employee submits a complete and sufficient certification signed by the health care
provider, the employer may not request additional information from the health care provider.”
29 C.F.R. § 825.307(a) (2013).


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                                  No. 12-60682

and good-faith reliance on the clinic employees’ report. Third, because Chevron
fails to specify what was abusive about Ion’s behavior, it is unclear how related
Chevron’s concerns about Ion’s behavior were to Ion’s refusal to sign the GO-153
form. It would be unreasonable, and would undercut the FMLA’s protection, to
permit an employer to draw any arbitrary distinction between firing an
employee for exercising his FMLA rights and for firing an employee for how he
exercised his FMLA rights. Pursuant to Chevron’s view, an employer would be
able to fire an employee for raising his voice when opposing an employer’s
unlawful attempt to violate the FMLA. But see Burnett v. LFW Inc., 472 F.3d
471, 482 (7th Cir. 2006) (holding that a question of material fact existed where
an employer’s classification of an employee’s conduct as insubordinate stemmed
in large measure from its mistaken belief that the employee was not entitled to
FMLA leave).
      In summation, Chevron has failed to meet its burden and establish as a
matter of law that it would have fired Ion despite its retaliatory motive.
Chevron’s evidence of Ion’s history of attendance and performance-related
deficiencies is insufficient to establish that it would have fired Ion because
Chevron chose to address those deficiencies with a suspension and a PIP/AIP,
and Ogborn testified that Ion would have been reinstated had he come back to
work. Chevron’s evidence that Ion was faking FMLA leave is also insufficient
because of the doubts raised by Chevron’s failure to investigate and Melcher’s
e-mail. Finally, Chevron’s evidence that Ion had been abusive during the clinic
incident is insufficient because it was not mentioned in Ion’s termination letter,
the accounts of the clinic incident are vague and nondescript, and Chevron has




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                                       No. 12-60682

failed to establish as a matter of law that its concerns about the clinic incident
were not related to Ion’s refusal to sign the GO-153 form.17
IV.     Conclusion
        For the foregoing reasons, we conclude that the district court erred in
granting summary judgment in Appellees’ favor. We, therefore, REVERSE the
judgment entered in favor of Appellees and REMAND for further proceedings
consistent with this opinion.


REVERSED and REMANDED.




17
  As noted above, we conclude that the facts and evidence in this case demonstrate a genuine
issue of material fact as to whether Chevron’s stated reasons for firing Ion were pretextual.
This case is distinguishable from Jackson because, in Jackson, the only evidence of pretext was
“self-serving statements that [the plaintiff] did not commit sexual harassment,” which were
“insufficient to create a triable issue of fact.” 602 F.3d 374, 379 (5th Cir. 2010).


                                              27
