                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 10-3398
                                     ___________

Mary E. Sisk,                           *
                                        *
            Plaintiff - Appellant,      *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Picture People, Inc.,                   *
                                        *
            Defendant - Appellee.       *
                                   ___________

                              Submitted: September 22, 2011
                                 Filed: February 28, 2012
                                  ___________

Before MELLOY, SMITH, and BENTON, Circuit Judges.
                            ___________

BENTON, Circuit Judge.

       Mary Ellen Sisk sued her former employer The Picture People, Inc. for
retaliation in violation of the Family and Medical Leave Act, 29 U.S.C. § 2615(a)(2).
At the close of her case-in-chief, the district court granted Picture People’s motion for
judgment as a matter of law. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.

      In March 2000, Sisk began with Picture People as a manager-in-training at a
photography studio in the Mid-Rivers Mall. Months later she became the Studio
Manager. In May 2005, Sisk moved to the West County Mall as Studio Manager,
serving until August 23, 2007.

       At work on June 3, 2007, Sisk experienced severe pain in her hip. She called
in the assistant manager, left work, went to the hospital, but was not admitted. The
next day, she saw an orthopedic surgeon, Dr. Thomas M. Hawk, who advised her to
take the week off from work. On June 7, Dr. Hawk wrote Picture People authorizing
Sisk to miss work from June 3 to June 13. Also on June 7, Andrea Buffkin, a benefits
coordinator for Picture People, sent Sisk a certified letter explaining FMLA, placing
her on unpaid FMLA leave retroactive to June 3, and authorizing up to 12 weeks of
leave with proper medical certification.

       The next Sunday, she felt something pop in her hip. She spent the next nine
days in the hospital where Dr. Hawk performed surgery on both hips. Her husband
notified Picture People of her worsening health, continuing her FMLA leave. Dr.
Hawk provided certification for the leave.

       On August 14, after nearly 11 weeks of FMLA leave, Dr. Hawk cleared Sisk
to work. Buffkin asked Dr. Hawk whether she had any work restrictions on her
return. Buffkin listed some activities that Sisk’s job required (“climbing ladders,
squatting and rolling on floor to take pictures, etc.”). Dr. Hawk responded that Sisk
had no restrictions.

       Sisk returned to work on Monday, August 20. Three days later, Becky Weiler
(her district manager) and Dennis Jones (her regional manager) arrived at her studio
to conduct photo training.

      After the training, Weiler and Jones met with Sisk in the mall’s food court.
Fearing the purpose of the meeting, she began crying before it began. During the
meeting, Weiler repeatedly expressed concern over Sisk’s health. Weiler also stated

                                         -2-
that several of her employees, including the assistant manager, said she was
physically unable to do her job and that – during the three days since returning from
leave – Sisk refused to climb a ladder or perform a photo-sitting and called on her
employees to pick up paper and pencils from the floor. Sisk felt badgered by Jones
who told her several times that she needed to return to her doctor for more care and
should consider quitting and reapplying when healthier.

       The parties disagree over how the meeting ended. Picture People says Sisk
resigned. Sisk says she was terminated. She admits that neither Jones nor Weiler
explicitly said she was fired. Sisk assumed she was fired based on Jones’s comments
that she was a liability, that Picture People did not have a position for her in her
current condition, and that she should resign. Nobody at the meeting said anything
about her use of FMLA leave. The meeting ended when Sisk tore up her name tag
and turned in her keys. August 23, 2007, was Sisk’s last day with Picture People.

        Sisk sued Picture People for FMLA retaliation. After two days of trial, Sisk
closed her case-in-chief. Picture People orally moved for judgment as a matter of
law, which the district court granted. The court noted that Sisk’s evidence “could be
sufficient to establish a prima facie case” of retaliation. However, the court required
Sisk to show “more than a prima facie case of . . . retaliation” – because the case was
at trial – and concluded that Sisk had failed to make that showing.

       On appeal, Sisk challenges the grant of judgment as a matter of law. A district
court may enter judgment as a matter of law “[i]f a party has been fully heard on an
issue during a jury trial and the court finds that a reasonable jury would not have a
legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ.
P. 50(a)(1). This court reviews de novo a district court’s grant of judgment as a
matter of law, applying the same standard as the district court. Roberson v. AFC
Enters., Inc., 602 F.3d 931, 933 (8th Cir. 2010). This court must “resolve direct
factual conflicts in favor of the nonmovant,” “assume as true all facts supporting the

                                          -3-
nonmovant which the evidence tended to prove,” and “give the nonmovant the benefit
of all reasonable inferences.” Id., quoting Larson ex rel. Larson v. Miller, 76 F.3d
1446, 1452 (8th Cir. 1996) (en banc).

                                           I.

      “The FMLA entitles an employee to twelve workweeks of leave during any
twelve-month period if he or she has a ‘serious health condition that makes the
employee unable to perform the functions of the position of such employee.’”
Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 999 (8th Cir. 2011), quoting 29
U.S.C. § 2612(a)(1)(D). The FMLA authorizes two types of claims: interference or
retaliation. See id. Sisk asserts only a retaliation claim. In a retaliation claim, “the
employee alleges that the employer discriminated against her for exercising her
FMLA rights.” Id., citing Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008).

       Absent direct evidence, an FMLA retaliation claim is evaluated under the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Id. The employee must first establish a prima facie case, which creates a
presumption of unlawful retaliation. Id. The burden then shifts to the employer to
“articulate a legitimate, non-retaliatory reason for its action.” Id. If the employer
meets this burden of production, the employee “must then identify evidence sufficient
to create a genuine issue of material fact whether [the employer’s] proffered
explanation is merely a pretext for unlawful retaliation.” Id.

      In this case, Picture People did not offer a non-discriminatory reason for the
alleged termination. Until a defendant articulates a non-discriminatory reason for the
alleged adverse employment action, the relevant inquiry is the sufficiency of the




                                          -4-
plaintiff’s prima facie case.1 Assuming a defendant does not articulate a reason for
its alleged act, three scenarios are possible: First, if the court determines that no
reasonable jury can find facts constituting a prima facie case, the defendant prevails
as a matter of law. See, e.g., Quinn v. St. Louis Cnty., 653 F.3d 745, 754 (8th Cir.
2011). Second, if the court determines that a reasonable jury must find that the
plaintiff has established a prima facie case, the plaintiff prevails as a matter of law.
See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). Third, if “reasonable
minds could differ as to whether a preponderance of the evidence establishes the facts
of a prima facie case, then a question of fact . . . remain[s], which the trier of fact will
be called upon to answer.” Id. at 510-11 (emphasis omitted).

       The district court should not have stated that the prima facie case is not
relevant once an FMLA retaliation case goes to trial. The evidence produced – not
the stage of proceeding – determines the burden on the plaintiff. Because Picture


       1
        If the defendant carries its burden of production (by articulating a non-
discriminatory reason for its act), the prima facie case is no longer relevant and the
focus turns to the ultimate issue of retaliation. See Hicks, 509 U.S. at 510. For cases
that explain a court’s inquiry after the defendant meets its burden of production, see
Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 142 (2000) (“Respondent met
this burden by offering admissible evidence sufficient for the trier of fact to conclude
that petitioner was fired because of his failure to maintain accurate attendance
records.”), Hicks, 509 U.S. at 509 (“By producing evidence . . . of nondiscriminatory
reasons, petitioners sustained their burden of production . . . .”), and U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 714-15 (1983) (“[W]hen the
defendant . . . responds to the plaintiff’s proof by offering evidence of the reason for
the plaintiff's rejection, the fact finder must then decide whether the rejection was
discriminatory within the meaning of Title VII.” (emphasis added)). See also Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 249-50 (1981) (addressing “the
nature of the evidentiary burden placed upon the defendant in an employment
discrimination suit brought under Title VII”). None of these cases disturb the
requirement that a defendant meet a valid prima facie case by articulating a non-
discriminatory reason for its actions.

                                            -5-
People did not offer a non-discriminatory reason for its alleged act, the proper inquiry
for the district court – even at trial – was whether Sisk’s evidence was sufficient to
establish a prima facie case.

                                           II.

       On de novo review, this court must examine Sisk’s evidence to determine
whether a reasonable jury could find that she established a prima facie case of FMLA
retaliation. To establish a prima face case of FMLA retaliation, she “must show that:
1) she engaged in protected conduct; 2) she suffered a materially adverse employment
action; and 3) the materially adverse action was causally linked to the protected
conduct.” Wierman, 638 F.3d at 999.

       The first two elements are not disputed on appeal. Sisk has not, however,
established a causal link sufficient for a prima facie case. At trial and on appeal, Sisk
says that the only evidence of a causal link is the temporal proximity between her
FMLA leave and the alleged termination. Picture People received notice of Sisk’s
protected activity as early as June 7, when the benefits coordinator placed her on
FMLA leave. Sisk’s alleged termination took place more than two months later. Sisk
argues that the relevant date for causation is the date she returned to work, three days
before she was terminated. However, this court looks to the date an employer knew
of an employee’s use (or planned use) of FMLA leave, not the date it ended. See
Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002) (measuring from
the day the employee began her leave, although the employee was terminated on the
day she returned).2

      2
        To the extent passing references in later opinions of this court may conflict
with the analysis in Allen Health Systems, see, e.g., McBurney v. Stew Hansen’s
Dodge City, Inc., 398 F.3d 998, 1003 (8th Cir. 2005) (measuring the relevant time
lapse from the employee’s return from FMLA leave), this panel is bound to follow
the earlier opinion. See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011)
(en banc) (“[W]hen faced with conflicting panel opinions, the earliest opinion must
be followed . . . .”).

                                          -6-
       “Generally, more than a temporal connection between the protected conduct
and the adverse employment action is required to present a genuine factual issue on
retaliation.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en
banc). In order for temporal proximity alone to be sufficient, “the temporal proximity
must be very close.” Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir. 2006)
(internal quotation marks omitted); see also Clark Cnty. Sch. Dist. v. Breeden, 532
U.S. 268, 273 (2001) (per curiam). This court has not drawn a definitive line, and
there is no need to do so here. More than two months is too long to support a finding
of causation without something more. See Smith v. Fairview Ridges Hosp., 625 F.3d
1076, 1088 (8th Cir. 2010) (finding one month is not close enough), cert. denied, 131
S. Ct. 2904 (2011); Wisbey v. City of Lincoln, 612 F.3d 667, 676 (8th Cir. 2010)
(same); cf. Allen Health Sys., 302 F.3d at 833 (“[The employees] family leave began
on January 1 and [the employer] discharged [the employee] on January 14. These two
events are extremely close in time and we conclude that under our precedent this is
sufficient, but barely so, to establish causation, completing [the plaintiff’s] prima
facie case.” (emphasis added)). Because Sisk fails to provide any other evidence
linking her termination to her use of FMLA leave, a reasonable jury would not have
a legally sufficient evidentiary basis to find for her on that issue. Picture People is
entitled to judgment as a matter of law.

      The judgment of the district court is affirmed.
                     ______________________________




                                         -7-
