Case: 20-11140 Document: 00515990070 Page: 1 Date Filed: 08/23/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-11140 August 23, 2021
Lyle W. Cayce
Clerk
James R. Hester,
Plaintiff—Appellant,
versus
Bell-Textron, Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CV-514
Before Dennis and Engelhardt, Circuit Judges, and Hicks,* Chief
District Judge.
Kurt D. Engelhardt, Circuit Judge:
The district court granted Bell-Textron, Incorporated’s (“Bell-Textron”) Rule 12(b)(6) motion to dismiss James R. Hester’s first amended
complaint. Hester now appeals that dismissal. For the following reasons, we
REVERSE and REMAND for further proceedings.
*
Chief District Judge for the Western District of Louisiana, sitting by designation.
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No. 20-11140
I.
Hester was employed by Bell-Textron from August 1997 through
December 2018. During that time, he worked as an engineer, engineer
technician, quality inspector, technical publications writer, and Federal
Aviation Administration Organization Designation Authorization unit
member. Hester suffers from epilepsy and glaucoma. As a result of his
epilepsy, he suffered at least five grand mal seizures between September 2014
and April 2017. Hester’s wife suffers from stage-four cancer, and Hester
assists her with comfort and attending medical appointments.
In March 2017, Hester began reporting to Vance Cribb, who was
aware of Hester’s medical history, including his seizures and the symptoms
associated with his glaucoma and epilepsy. In June 2018, Cribb issued Hester
the first poor performance review of Hester’s career with Bell-Textron. On
October 11, 2018, Cribb issued Hester a final warning related to a part that
broke during a testing procedure. Hester protested the final warning to the
point of being escorted off work premises and was instructed by Cribb to
apply within the next 24 hours for an “employee assistance program” based
on his medical conditions. Hester contacted a Bell-Textron human resources
employee, who suggested that Hester apply for short-term disability
coverage. Hester applied for and was granted short-term disability coverage
related to his epilepsy and glaucoma. He additionally applied for and was
granted leave under the Family and Medical Leave Act (“FMLA”) based on
those same medical conditions.
A Bell-Textron human resources employee fired Hester by telephone
on December 6, 2018, 1 during the pendency of his FMLA leave. The human
resources employee cited Hester’s “poor mid-year performance review from
1
It is important to note that, according to the first amended complaint, Hester’s
firing occurred almost two months after the final warning and his protest of it; and six
months after the poor performance review cited by the employee who fired Hester.
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June 2018” as a reason for the firing and stated that “it was a good time” for
Hester to separate from the company. Hester called MetLife Insurance
immediately after his firing and was informed that he still had 5.4 weeks of
FMLA leave remaining for 2018 and would have an additional 12 weeks of
FMLA leave in 2019 to care for his own medical needs and those of his wife.
Hester then filed the underlying lawsuit. Through his first amended
complaint, Hester alleged two FMLA claims against Bell-Textron: (1)
discriminatory termination during the pendency of his FMLA leave; and (2)
interference with his right of reinstatement to his position at the end of his
FMLA leave. Hester alleged that he was FMLA-eligible based on his fulltime employment with Bell-Textron for more than one year, his serious
health conditions of glaucoma and epilepsy, and his wife’s serious health
condition of cancer. He further alleged that Bell-Textron was subject to the
FMLA, because it employed at least 50 employees within a 75-mile radius of
his work site for at least 20 work weeks in the prior or current calendar year.
Bell-Textron filed a Rule 12(b)(6) motion to dismiss Hester’s first
amended complaint, which the district court granted. The district court
entered a final judgment dismissing the case with prejudice. This appeal
followed.
II.
Our review of a district court’s order granting a Rule 12(b)(6) motion
to dismiss is de novo. IberiaBank Corp. v. Ill. Union Ins. Co., 953 F.3d 339, 345
(5th Cir. 2020). We accept all factual allegations as true and construe the
facts in the light most favorable to the plaintiff. Alexander v. Verizon Wireless
Servs., L.L.C.,
875 F.3d 243, 249 (5th Cir. 2017).
A complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “To
survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
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face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly,
550 U.S. 544, 570 (2007)). A claim is facially plausible if the
plaintiff alleges facts that allow a court “to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. “We do not accept as
true conclusory allegations, unwarranted factual inferences, or legal
conclusions.” Gentilello v. Rege,
627 F.3d 540, 544 (5th Cir. 2010) (quoting
Plotkin v. IP Axess Inc.,
407 F.3d 690, 696 (5th Cir. 2005)).
III.
A. Discrimination Claim
The district court dismissed Hester’s discrimination claim for failure
to state a prima facie claim.
To state a prima facie claim for discrimination or retaliation under the
FMLA, the plaintiff must allege that “(1) he is protected under the FMLA;
(2) he suffered an adverse employment decision; and either (3a) that the
plaintiff was treated less favorably than an employee who had not requested
leave under the FMLA; or (3b) the adverse decision was made because of the
plaintiff’s request for leave.” Bocalbos v. Nat’l W. Life Ins. Co., 162 F.3d 379,
383 (5th Cir. 1998). If the plaintiff states a prima facie claim, “the burden
shifts to the employer to articulate a legitimate nondiscriminatory or
nonretaliatory reason for the termination.”
Id. “Once the employer has done
so, the plaintiff must show by a preponderance of the evidence that the
employer’s reason is a pretext for discrimination or retaliation.”
Id.
There is no dispute that Hester has alleged a prima facie
discrimination claim under the first and second elements of Bocalbos; the
parties disagree on whether Hester has pleaded element (3b) by alleging
causation between Bell-Textron’s termination decision and his FMLA leave
request. The district court found that Hester failed to allege causation,
because he pleaded nothing to suggest that Bell-Textron impermissibly
terminated him beyond mere timing. The district court further found that
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Hester alleged rationales for Bell-Textron’s termination decision that were
wholly unrelated to the exercise of his FMLA rights: a poor performance
review, a workplace protest of a final warning from his supervisor, and an
ejection from work premises.
We have stated the following regarding a plaintiff’s prima facie burden
of demonstrating causation:
When evaluating whether the adverse employment action was
causally related to the FMLA protection, the court shall
consider the temporal proximity between the FMLA leave, and
the termination. Moreover, the plaintiff does not have to show
that the protected activity is the only cause of her termination.
The plaintiff is, however, required to show that the protected
activity and the adverse employment action are not completely
unrelated.
Mauder v. Metro. Transit Auth. of Harris Cnty., Tex., 446 F.3d 574, 583 (5th
Cir. 2006) (internal citations omitted).
Hester sufficiently alleges a causal link between his termination and
request for FMLA leave. There is certainly “temporal proximity” between
Hester’s termination and his FMLA leave, because Bell-Textron terminated
him in the middle of his FMLA leave. Id. Moreover, the fact that Bell-Textron provided non-FMLA reasons for Hester’s termination is not fatal to
a prima facie causation showing, because Hester is not required to allege that
his protected FMLA activity was the sole cause of his termination.
Id. Finally,
Bell-Textron did not fire Hester at the time of his pre-leave workplace
performance issues in June and October 2018, but rather waited until
December 2018 to do so—approximately two months into Hester’s FMLA
leave. As a pleading matter, the alleged timeline of events indicates that Bell-Textron’s termination decision was not “completely unrelated” to the
exercise of his FMLA rights.
Id.
For the foregoing reasons, the district court erred in finding that
Hester’s discrimination claim failed under element (3b) of Bocabos. 162 F.3d
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at 383. Accordingly, we reverse the district court’s Rule 12(b)(6) dismissal of
that claim and remand for further proceedings.
B. Reinstatement Interference Claim
The district court dismissed Hester’s reinstatement interference
claim for failure to state a prima facie claim.
“It [is] unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right” provided under the
FMLA. 29 U.S.C. § 2615(a)(1). To state a prima facie FMLA interference
claim, a plaintiff must allege that “(1) he was an eligible employee; (2) his
employer was subject to FMLA requirements; (3) he was entitled to leave;
(4) he gave proper notice of his intention to take FMLA leave; and (5) his
employer denied him the benefits to which he was entitled under the
FMLA.” Caldwell v. KHOU-TV,
850 F.3d 237, 245 (5th Cir. 2017). Once the
plaintiff states a prima facie claim, it is the employer’s burden on summary
judgment to articulate “a legitimate non-discriminatory reason for the
employment action at issue,” which then may be rebutted if “the plaintiff
raise[s] an issue of material fact that the employer’s proffered reason was
pretextual.”
Id.
An employee generally has the right to be reinstated to his previous
position or an equivalent position upon his return from FMLA leave. 29
U.S.C. § 2614(a)(1)(A)–(B). However, the FMLA does not impose a strict
liability standard requiring employers, in all circumstances, to reinstate
employees following their FMLA leave. Shirley v. Precision Castparts Corp.,
726 F.3d 675, 681–82 (5th Cir. 2013). Under the FMLA, an employee is only
entitled to those rights to which he would have been entitled had he not taken
FMLA leave.
Id. at 681 (citing
29 U.S.C. § 2614(a)(3)(B)). Accordingly, an
employee claiming a violation of his right to reinstatement “must actually be
entitled to the position to which he seeks reinstatement.”
Id. at 682. “Thus,
although denying an employee the reinstatement to which he is entitled
generally violates the FMLA, denying reinstatement to an employee whose
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right to restored employment had already been extinguished—for legitimate
reasons unrelated to his efforts to secure FMLA leave—does not violate the
[FMLA].” Id. (emphasis in original).
There is no dispute that Hester has alleged a prima facie interference
claim under the first four elements of Caldwell; the parties disagree on the
fifth element. Citing our decision in Shirley, the district court stated that
Caldwell’s fifth element required Hester to allege that Bell-Textron would
not have terminated him had he not taken FMLA leave. Because Hester
failed to do so, the district court found that Hester failed to state an
interference claim.
The district court erred by applying Shirley—a summary judgment
case—to a Rule 12(b)(6) motion to dismiss. Shirley explained that the
employer has an evidentiary burden on summary judgment to prove that the
plaintiff would have lost his position even if he had not taken FMLA leave.
Id. at 682 (citing
29 C.F.R. § 825.216(a)). If the employer satisfies this
burden, then the plaintiff must present evidence “sufficient to raise a jury
question that [the employer’s] stated reason for firing him . . . was
pretextual.”
Id. at 683. By requiring Hester to allege that he would not have
been terminated had he not taken FMLA leave, the district court erroneously
applied the employer’s evidentiary burden on summary judgment as a
pleading burden that the plaintiff must satisfy to survive a Rule 12(b)(6)
motion to dismiss. See
id. at 682–83; see also Caldwell,
850 F.3d at 245.
To plead the fifth element of a prima facie interference claim, Hester
was required to allege that Bell-Textron denied him a benefit to which he was
entitled under the FMLA. Caldwell, 850 F.3d at 245. He did exactly that by
alleging that Bell-Textron interfered with his right to reinstatement by failing
to restore him to his position upon the termination of his FMLA leave. See
29 U.S.C. § 2614(a)(1).
Bell-Textron argues that Hester pleaded himself out of an interference
claim by alleging several legitimate justifications for his termination,
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including the poor performance review, workplace protest of a final warning
from his supervisor, and being escorted off work premises. Bell-Textron
contends that Hester’s allegations show that he would have been fired even
if he had not taken FMLA leave; thus, he was not entitled to reinstatement,
and his interference claim fails under Caldwell’s fifth element.
We disagree. It is true that “denying reinstatement to an employee
whose right to restored employment had already been extinguished—for
legitimate reasons unrelated to his efforts to secure FMLA leave—does not
violate the [FMLA].” Shirley, 726 F.3d at 682. However, Hester does not
allege that Bell-Textron fired him at the time of his poor performance review
in June 2018. Nor does he allege that Bell-Textron fired him at the time of his
final warning from his supervisor, workplace protest, and ejection from work
premises in October 2018. Instead, Hester clearly alleges that Bell-Textron
first notified him of his termination in December 2018—approximately two
months after his FMLA leave commenced and while he still had several
weeks of leave remaining. Moreover, Hester alleges that immediately after
his ejection from the workplace, he was instructed by his supervisor to apply
for an “employee assistance program” based on his medical conditions. Bell-Textron’s human resources department subsequently aided Hester in
gaining approval for FMLA leave. As a pleading matter, the allegation that
Bell-Textron directed Hester to an employee assistance program and guided
him through the FMLA application process—rather than simply firing him
outright on the basis of poor workplace performance—indicates that
Hester’s right to restored employment was still intact when he secured
FMLA leave.
For these reasons, the district court erred finding that Hester’s
discrimination claim failed under the fifth element of Caldwell. 850 F.3d at
245. Accordingly, we reverse the district court’s Rule 12(b)(6) dismissal of
that claim and remand for further proceedings.
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IV.
For the foregoing reasons, we REVERSE the district court’s Rule
12(b)(6) dismissal of Hester’s FMLA interference and discrimination claims
and REMAND for further proceedings.
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