Jackson v. BNSF Railway Company
Memorandum Opinion and Order: The court ORDERS that plaintiff's motion 32 for partial summary judgment be, and is hereby, denied; that defendant's motion 27 for summary judgment be, and is hereby, granted; that plaintiff take nothing on her claims against defendant; and, that plaintiff's claims be, and are hereby, dismissed. (Ordered by Judge John McBryde on 7/28/2017) (edm)
'No ' U.S. DISTRICT COURT
R.T.I!EpiS1j§ICT OF TEXAS
IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXA OURT
FORT WORTH DIVISION
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u.s. DISTlUCT COURT
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BNSF RAILWAY COMPANY,
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of plaintiff, Michelle
for partial summary judgment, and the motion of
defendant, BNSF Railway Company, for summary judgment. The court,
having considered the motions, the responses, the replies', the
record, the summary judgment evidence, and applicable
authorities, finds that plaintiff's motion should be denied and
that defendant's motion should be granted.
Plaintiff's operative pleading is her second amended
complaint filed April 10, 2017. Doc.' 18. In it, she alleges that
'Along with her reply in support of her motion for summary judgment, on July 26, 2017, plaintiff
filed objections to certain evidence submitted in support of defendant's motion for summary judgment.
The objections come too late, as the time for plaintiffs response to defendant's motion has long passed.
In her reply in support of her own motion for summary judgment, plaintiff objects to the same evidence
relied upon by defendant in response to the motion. In any event, the court typically does not strike
summary judgment evidence but gives it whatever weight it may deserve.
" reference is to the number of the item on the docket in this action.
she was terminated as an employee by defendant in violation of
the Family and Medical Leave Act, 29 U.S.C.
She asserts two causes of action, one for interference with her
FMLA leave and one for retaliation for her use of FMLA leave.'
Grounds of the Motions
Defendant seeks judgment on both of plaintiff's claims. As
to the interference claim, defendant says that plaintiff cannot
show that she was denied benefits to which she was entitled.
Specifically, defendant maintains that discharging plaintiff for
abusing her medical leave does not constitute interference as a
matter of law and neither does asking plaintiff about her
attendance at a concert or otherwise communicating with her while
she was on leave. As for the retaliation claim, defendant says
that plaintiff cannot prevail because defendant discharged her
for legitimate, non-retaliatory reasons.
Plaintiff seeks judgment only as to the first of her claims.
She maintains that defendant interfered with her rights under the
FMLA by terminating her employment shortly into her FMLA leave
for insupportable and unlawful reasons. Doc. 32 at 1, , 2.
'On June 22, 2017, plaintiff filed a notice of dismissal of her third cause of action, assetted under
the Texas Commission on Human Rights Act for failure to accommodate. Doc. 22.
Applicable Summary Judgment Standards
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,
"since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
at 324; see also Fed. R. Civ. P. 56(c)
asserting that a fact .
the assertion by
is genuinely disputed must support
citing to particular parts of materials in
If the evidence identified could not lead
a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
In Mississippi Prot. & Advocacy
475 U.S. 574, 587, 597 (1986).
Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
Celotex Corp., 477 U.S. at 323.
If the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 u.s. at 597; see also Mississippi Prot. &
Advocacy Sys., 929 F.2d at 1058.
The undisputed summary judgment evidence establishes the
ln Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or fm judgment notwithstanding the verdict.
Plaintiff began working for defendant in 2002. In late 2015,
she accepted a position as marketing manager, relocating from
California to Fort Worth, Texas. Her duties as marketing manager
included learning her assigned markets, the competitive factors
within the markets, the relevant drivers, risks, opportunities,
barriers, and players within the markets, establishing the
pricing to ship her assigned commodities on the railroad, and
developing marketing strategy for her commodities. Doc. 39 at
298-99; Doc. 29 at 49-50. Plaintiff reported to Carrie Whitman,
Director Marketing, Industrial Products. Plaintiff initially had
responsibility for two commodities. 5 Doc. 39 at 235. At some
point, she added four sub-forecast groups, which did not involve
many customers or require interaction more than once a year. Doc.
39 at 302.
Plaintiff struggled with the volume of work. Doc. 38 at 2.
She recognized that she was faltering and felt overwhelmed. Doc.
38 at 3. By email sent March 24, 2016, Whitman suggested to
plaintiff that she limit her travel and time away from the office
until she got proficient at processing her rate requests. Doc. 39
at 96. Plaintiff responded,
"That would be perfect!" noting that
The number of commodities assigned to a market manager did not necessarily correlate to the
work required. Doc. 29 at 52; Doc. 39 at 302-03. For example, the sand account covered a "500-millionplus market" with lots of need for reporting to executive level, lots of rate requests, and lots of facilities
being built. Doc. 39 at 303.
she had just not been able to keep up. Id. In April 2016, Whitman
put plaintiff on a performance improvement plan ("PIP"). Doc. 29
at 15-16; Doc. 39 at 197-98. The PIP was presented to plaintiff
at a meeting on April 25, 2016, attended by plaintiff, Whitman,
Kelli Courreges, Director Human Resources ("Courreges"), and
Denis Smith, who was Whitman's supervisor. Doc. 29 at 20, 54-55,
134. Plaintiff was surprised; she did not receive the PIP well;
and, she disagreed with being given the PIP. Doc. 29 at 55. She
did recognize that she was unable to keep up with the workload
and that her performance could be described as deficient. Doc. 29
On May 2, 2016, plaintiff experienced a breakdown. Doc. 38
at 3. She called the Employee Assistance Program hotline and was
referred to Texas Health Resources for an assessment. Doc. 29 at
66-67. She took off the rest of the day, sending an email to
Whitman and Courreges saying that she was not well and had a 2
p.m. appointment to see a doctor. Doc. 29 at 116. Whitman
"So sorry to hear that! Take care!" Id. Later in the
day, plaintiff sent an email to Courreges saying that she had
seen a doctor and was "not well to return back to work" and that
MetLife would be forwarding proper documentation for her to be
off on short-term disability. Doc. 29 at 117. She did not have a
return date. Id.
On May 3, 2016, Courreges forwarded to plaintiff an email
regarding delinquent charges on her company credit card that
could impact her credit. Doc. 29 at 119-20. Plaintiff responded
that she had taken care of a missing receipt the previous day.
Id. at 119. On May 4, 2016, Whitman emailed plaintiff to say that
she was sorry to hear plaintiff was not well and to inquire
whether plaintiff had left an out of office response redirecting
her emails. Doc. 29 at 121. On May 6, Whitman emailed again to
ask about the out of office response. Doc. 29 at 122. Plaintiff
did not respond and ultimately Whitman had to set up the out of
office message. Doc. 29 at 26-27; 85-86.
On May 9, plaintiff attended a Beyonce concert in
defendant's suite at AT&T Stadium. Doc. 29 at 86. Another
employee who saw her there questioned Whitman about plaintiff's
attendance, saying that he had thought plaintiff was out sick.
Doc. 29 at 21. Whitman was concerned and told Courreges. Doc. 29
at 22. Finding out that plaintiff had attended the concert in
defendant's luxury suite while she was out on leave raised a red
flag to Courreges. 6 Doc. 29 at 166. She believed that plaintiff
was abusing her FMLA leave. Doc. 29 at 165-66. Courreges wanted
to discuss with plaintiff why plaintiff thought it was
As Courreges said in an email to the president of human resources, "I don't understand how you
can't work but can go to a concert." Doc. 29 at 203.
appropriate to attend the concert when she was not working. Doc.
29 at 167.1-68; 171-73. Courreges believed that plaintiff was
taking leave to avoid her PIP. Doc. 29 at 169. Adding to her
suspicion was that plaintiff had not been in touch with Whitman
or her team for almost two weeks. Doc. 29 at 185-86.
Courreges tried to set up a meeting with plaintiff by
leaving her a voicemail on May 13, 2016. Doc. 29 at 123. On May
16, 2016, plaintiff responded by email that she had not been
released by her doctor to meet and that as soon as she was, she
would be happy to meet and answer questions at that time. Doc. 29
at 124. Courreges replied to the email saying that she needed to
talk to plaintiff by the close of business that day, May 16, and
that plaintiff could be terminated for failing to communicate
with Courreges. Doc. 29 at 125. Plaintiff did not respond. By
letter dated May 18, 2016, plaintiff's employment was terminated,
giving as the primary reasons her poor work performance, her
attendance at the concert while being off work, and her refusal
to communicate when requested to explain her attendance at the
concert. Doc. 29 at 126.
From the time plaintiff took leave, neither Whitman or
Courreges ever had an understanding or suspicion about what the
condition was that necessitated the leave. Doc. 29 at 23-24; Doc.
39 at 278. Whitman did not make the decision to terminate
plaintiff. Doc. 29 at 23. The decision belonged to Courreges.
Doc. 39 at 288. Plaintiff does not know if Whitman or Courreges
had any knowledge of her medical diagnosis at the time the
termination letter was sent.
Doc. 29 at 98. Other than the two
emails she sent on May 2, 2016, plaintiff never communicated with
Whitman or Courreges about her medical condition. Doc. 29 at 7476.
Interference with FMLA Rights
In the first count of her complaint, plaintiff says that
defendant interfered with the exercise of her rights under the
FMLA by terminating her employment shortly into her FMLA leave. 7
Doc. 18 at 6,
22. To establish an FMLA interference claim,
plaintiff must show that defendant interfered with, restrained,
or denied her exercise or attempt to exercise FMLA rights and
that the violation prejudiced her. Acker v. Gen. Motors, L.L.C.,
853 F. 3d 784, 788
(5th Cir. 2017). An interference claim merely
requires proof that defendant denied plaintiff her entitlements
under the FMLA. Id.
Th is is the same claim asserted in count two, but with a different name, retaliation. For this
reason, the court agrees with defendant that these claims are better treated as one retaliation claim.
Kendall v. Walgreen Co., No. A-12-CV-847-AWA, 2014 WL 1513960, at *5 (W.D. Tex. Apr. 16, 2014);
Varise v. H&E Healthcare, L.L.C., No. 10-666-BAJ-DLD, 2012 WL 5997202, at *3-4 (M.D. La. Nov.
30, 2012). Nevertheless, the court will discuss them separately.
The parties do not dispute that plaintiff was an eligible
employee, that defendant was subject to the FMLA's requirements,
or that plaintiff gave notice of her intention to take FMLA
leave. They do dispute whether plaintiff was entitled to FMLA
leave and whether defendant denied plaintiff FMLA benefits to
which she was entitled. See Lanier v. Univ. of Tex. Sw. Med.
Ctr., 527 F. App'x 312, 316 (5th Cir. 2013) (discussing elements
of interference cause of action) .
Plaintiff argues that discriminatory intent plays no role in
determining an interference claim, relying on a concurring
opinion in Cuellar v. Keppel Amfels, LLC, 731 F.3d 342, 349 (5th
cir. 2013). Doc. 38 at 9. Defendant argues that plaintiff cannot
recover under any FMLA theory if she cannot show that defendant's
reason for terminating her was a discriminatory one. Miller v.
Metrocare Servs., 809 F.3d 827, 832
(5th Cir. 2016); Grubb v. Sw.
Airlines, 296 F. App'x 383, 391 (5th Cir. 2008).
As the Fifth Circuit has noted, an employee who requests or
takes leave under the FMLA is not entitled to any greater rights
or benefits than he would be entitled to had he not requested or
taken leave. Grubb, 296 F. App'x at 391. And, an otherwise proper
termination precludes entitlement to leave. Id. Here, the summary
judgment evidence is that defendant suspected plaintiff of
that is, claiming a benefit to which she was
not entitled. Defendant attempted to investigate, but plaintiff
refused to cooperate, leading to her termination.' Defendant's
honest suspicion of abuse is sufficient to defeat plaintiff's
substantive FMLA rights. Wesley v. One Price Clothing Stores,
Inc., No. 4:02-CV-834-A, 2003 WL 21955861, at *3
(N.D. Tex. Aug.
15, 2003). See Scruggs v. Carrier Corp., 688 F.3d 821, 825-26
(7th Cir. 2012); Warwas v. City of Plainfield, 489 F. App'x 585,
588 (3d Cir. 2012). Once plaintiff was properly terminated, she
was no longer eligible for FMLA benefits and there could not have
been any interference.
Retaliation for Exercise of FMLA Rights
In the second count of her complaint, plaintiff says that
defendant retaliated against her for the exercise of her rights
under the FMLA by terminating her employment shortly after she
availed herself of those rights. Doc. 18, at 7, , 28. The Fifth
Circuit uses the McDonnell Douglas framework to analyze
retaliation claims under the FMLA. Chaffin v. John H. Carter Co.,
179 F.3d 316, 319 (5th Cir. 1999). To make a prima facie case of
retaliation, plaintiff must show that she was protected under the
FMLA; she suffered an adverse employment action; and, she was
treated less favorably than an employee who had not requested
'Defendant had a right to investigate its suspicion and doing so did not violate the FMLA. SmithSchrenk v. Gcnon Energy Servs., L.L.C., No. H-13-2902, 2015 WL 150727, at *9 (S.D. Tex. Jan. 12,
2015). See Callison v. City ofPhiladelrhia, 430 F.3d 117 (3d Cir. 2005).
leave under the FMLA or the adverse decision was made because she
sought protection under the FMLA. Acker, 853 F.3d at 790. The
third element requires plaintiff to show a causal link between
the protected activity and the adverse action. Id. If plaintiff
establishes a prima facie case of retaliation, the burden shifts
to defendant to articulate a legitimate, nondiscriminatory reason
for her discharge. Powers v. Woodlands Religious Cmty. Inc., 323
F. App'x 300, 302
(5th Cir. 2009). If defendant carries its
burden, plaintiff must produce substantial evidence to show that
the proffered reason was not the true reason for the employment
decision and that the real reason was plaintiff's taking of FMLA
leave. Chaffin, 179 F.3d at 320.
Here, for summary judgment purposes, defendant assumes that
plaintiff can make out a prima facie case. Doc. 28 at 31. It
argues that plaintiff cannot show that its reason for discharging
plaintiff was not the true reason and that retaliation was. As
recited, supra, Courreges, who made the decision to terminate
plaintiff, testified that she believed that plaintiff was abusing
her medical leave because plaintiff took leave shortly after
receiving a PIP; within days, plaintiff attended the Beyonce
concert in defendant's luxury suite; and, plaintiff refused to
discuss her reasons for attending the concert when she claimed to
be too ill to work. Even if Courreges was incorrect in her
assessment, her belief constitutes a legitimate,
nondiscriminatory reason for the termination. Woodson v. Scott &
White Mem'l Hosp., 255 F. App'x 17, 20
(5th Cir. 2007); Williams
v. Lyondell-Citqo Refining Co., Ltd., 247 F. App'x 466, 471
Cir. 2007). Plaintiff has not come forward with summary judgment
evidence to show that this was pretext for retaliation. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000); Wallace v. Methodist Hosp. Sys.,
271 F.3d 212, 219-20
(5th Cir. 2001).
The court ORDERS that plaintiff's motion for partial summary
judgment be, and is hereby, denied; that defendant's motion for
summary judgment be, and is hereby, granted; that plaintiff take
nothing on her claims against defendant; and, that plaintiff's
claims be, and are hereby, dismissed.
SIGNED July 28, 2017.
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