      Case: 15-20594      Document: 00513542962         Page: 1    Date Filed: 06/10/2016




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                       No. 15-20594                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
 NICOLE L. RYDER,                                                            June 10, 2016
                                                                            Lyle W. Cayce
               Plaintiff - Appellant                                             Clerk

 v.

 SHELL OIL COMPANY; SHELL EXPLORATION & PRODUCTION
 COMPANY,

               Defendants - Appellees




                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 4:14-CV-726


 Before DAVIS, JONES, and GRAVES, Circuit Judges.
 PER CURIAM:*
      Nicole Ryder sued her former employer, Shell Oil Company (“Shell”),
claiming that it interfered with her ability to take leave in violation of the
Family and Medical Leave Act (“FMLA”) and breached the terms of her
employment contract. Shell’s motion for summary judgment on all claims was
granted by the district court. We affirm.



        * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
 be published and is not precedent except under the limited circumstances set forth in 5TH
 CIR. R. 47.5.4.
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                                 No. 15-20594


                                       I.
      On August 1, 2011, Ryder and Shell entered into a Retention Agreement,
under which Ryder agreed to remain employed at Shell until July 31, 2013 in
exchange for a cash payment. As part of the agreement, Ryder agreed to meet
Shell’s expectations for her performance, which included requesting vacation
time in advance and notifying her supervisor of tardiness and absenteeism.
      In 2012, Ryder was repeatedly absent and tardy without proper notice to
her supervisor, Dawn Suggs. In early 2013, Suggs placed Ryder on a
performance improvement plan (PIP); despite this warning, Ryder continued to
miss work without notice to Suggs, who warned Ryder in writing that further
incidents of job-related problems would result in termination.
      Meanwhile, in the Spring of 2013, Ryder learned that she was pregnant.
She missed four days of work in May due to morning sickness. At the prompting
of a Human Resources manager, Ryder contacted Shell’s third-party leave
administrator, Reed Group, to initiate her request for leave under the FMLA.
The Reed Group provided Ryder with the FMLA paperwork, which indicated
that leave may be delayed or denied if the paperwork was returned late or was
incomplete.
      Nonetheless, neither Ryder nor her doctor provided the appropriate
documentation to the Reed Group to support her May absences. The FMLA form
eventually submitted by Ryder included nothing about absences or morning
sickness. In fact, Ryder’s doctor indicated, on the medical certification form
provided by Ryder, that Ryder was medically capable of performing her job
duties and no medical necessity existed for Ryder to take any intermittent leave
prior to delivery. Shell denied Ryder’s FMLA request.
      On July 8, 2013, Ryder was terminated for failing to meet Shell’s
performance expectations.


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                                        No. 15-20594


                                              II.
       We review the district court’s grant of summary judgment de novo. 1 If the
record shows that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law, we must affirm. 2
       Ryder first argues that Shell interfered with her FMLA rights when it
denied her request for leave for her four absences in May. To prevail on this
claim, Ryder must show that she was entitled to FMLA leave. 3 She has not.
Under the FMLA, an employer may require medical certification to support an
employee’s request for leave; if the employee fails to provide that certification,
the employee is not entitled to FMLA leave. 4 Shell requested medical
certification, and Ryder returned an incomplete form that did not address the
absences at issue. Further, Ryder’s doctor indicated that Ryder was able to work
on the dates in question despite her pregnancy. Because Ryder failed to show
that she was eligible for FMLA leave in May, 2013, Shell is entitled to a
summary judgment on the FMLA interference claim.
       Ryder also contends that Shell unlawfully breached the Retention
Agreement by failing to pay her the retention bonus due under the parties’
Agreement. To recover on a breach of contract claim under Texas law, the
plaintiff must establish, in part, “performance or tendered performance by the
plaintiff.” 5
       Ryder has not established that she performed under the contract. The
Retention Agreement specifically required that Ryder must “remain an



       1 Templet v. HydroChem, Inc., 367 F.3d 473, 477 (5th Cir. 2004); Price v. Fed. Exp. Corp.,
283 F.3d 715, 719 (5th Cir. 2002).
       2 Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986).
       3 Comeaux-Bisor v. YMCA of Greater Hous., No. H-06-2836, 2007 WL 3171838, at *4

(S.D. Tex. Oct. 26, 2007), aff’d, 290 F. App’x. 722 (5th Cir. 2008).
       4 29 U.S.C. § 2613(a)-(b); 29 C.F.R. § 825.305(a)-(e).
       5 Mullins v. TestAmerica, Inc., 564 F.3d 386, 418 (5th Cir. 2009) (quoting Aguiar v.

Segal, 167 S.W.3d 443, 450 (Tex. App.-Houston [14th Dist.] 2005, pet. denied)).
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employee of [Shell] throughout the Retention Period” and that she would forfeit
payment if she “failed to meet performance expectations in [her] assignments
and responsibilities.” It is undisputed that Ryder was not in Shell’s employ for
the entirety of the Retention Period. The record also demonstrates that Ryder
failed to meet Shell’s performance expectations, particularly those set forth in
the PIP. She has raised no genuine issue of material fact regarding Shell’s stated
reason for refusing to pay her under the Retention Agreement.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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