VICKI TEAL v. GEORGIA PACIFIC WOOD PRODUCTS LLC (2024)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT GEORGIA - PACIFIC WOOD PRODUCTS LLC'S MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendant Georgia-Pacific Wood Products LLC (“Georgia-Pacific”)'s Motion for Summary Judgment. [Dkt. 75]. For the following reasons, the Motion is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

This suit is an employment discrimination case, where Plaintiff Vicki Teal alleges that Defendant Georgia-Pacific discriminated against her based on a work-induced disability, interfered with her rights under the Family and Medical Leave Act (“FMLA”), and retaliated against her for exercising her rights under the FMLA. See [Dkt. 26].

Vicki Teal began working for Georgia-Pacific's lumber operations as a Utility in the Finger Joint department in 2013, after it acquired Temple-Inland, for whom Teal worked beginning in March 1995. [Dkt. 26 at ¶¶ 9, 20; Dkt. 75 at 8]. In late 2020, Georgia-Pacific terminated its Finger Joint operations. [Dkt. 75 at 8]. Georgia-Pacific provided Teal with a new position at the Edger in the Sawmill in December 2020, and then reassigned her as a Tilt Hoist in the Planer Mill after Teal complained that she could not do the Edger job because it was “too heavy.” Id. On January 15, 2021, Teal was injured on the job, hurting her back and knee. [Dkt. 26 at ¶ 21]. She worked light duty from the date of her injury until March 16, 2021, after which she was taken off work by her doctor because even the light duty was too difficult for her. [Dkt. 75 at 9].

On March 16, 2021, Teal was placed on leave under both the FMLA and Georgia Pacific's Employee Medical Leave. See [Dkt. 75-2 at 177]. Throughout her time off, Georgia-Pacific approved both types of leave while Teal continued submitting medical support from her doctor, Dr. Terry Wells, that indicated she could not work even with restrictions or accommodations. [Dkt. 75 at 10–13]. On July 1, 2021, Teal also underwent an examination by a different doctor, Dr. Larry Isbell, who determined that she “had 0% whole body impairment,” reached Maximum Medical Improvement (“MMI”), and could return to work with restrictions. Id. at 10–11.

On October 16, 2021, Teal received a letter from Sedgwick—Georgia Pacific's third-party administrator—that her FMLA leave expired on September 27, 2021, and her Georgia-Pacific leave expired on October 11, 2021. [Dkt. 75 at 12; Dkt. 75-2 at 177]. On January 3, 2022, Teal was approved for short-term disability benefits, and her letter reminded her that her FMLA and company leave exhausted. [Dkt. 75 at 13]. On January 18, 2022, Teal's doctor—without providing restrictions or accommodations—provided a diagnosis and estimated she could return to work on April 18, 2022. Id. Finally, on January 19, 2022, Georgia-Pacific denied Teal's request for additional company leave and her short-term disability leave expired. Id.

On January 28, 2022, Georgia-Pacific terminated her allegedly because “she had exhausted all available leave, did not return to work[,] and showed no intention of ever returning to work.” Id. at 13–14. Plaintiff did not seek any accommodation for her disability when she was informed of her termination. Id. at 14. After her termination, Teal alleges—without record—that a Sedgwick representative named Susan H. told her that she had more available leave. Id.

Based on the foregoing facts, Teal sent a letter to Michael A. Gibson, chief counsel for labor and employment of Koch, who later acknowledged receipt on February 10, 2022. [Dkt. 26 at ¶ 14]. On February 24, 2022, Teal filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Texas Workforce Commission Civil Rights Division. Id. at ¶ 31. The EEOC issued plaintiff a right to sue letter on January 31, 2023. Id. at ¶ 32. She then filed suit with the Court on April 28, 2023. [Dkt. 1]. On August 9, 2024, Georgia-Pacific filed its Motion for Summary Judgment. [Dkt. 75]. Teal timely filed her responsive briefing. [Dkt. 78]. The Motion is ripe for review.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, “[s]ummary judgment is proper when the pleadings and evidence demonstrate that no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law.” DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005); Fed. R. Civ. P. 56(c). “An issue is material if its resolution could affect the outcome of the action.” DIRECTV, 420 F.3d at 536. “A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. All reasonable inferences must be drawn in favor of the nonmoving party. Smith v. Amedisys Inc., 298 F.3d 434, 440 (5th Cir. 2002). There is no genuine issue of material fact if, when the evidence is viewed in the light most favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving party. Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (citations omitted).

III. DISCUSSION

Georgia-Pacific's Motion raises three primary issues: (1) whether Teal was discriminated against in violation of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) (“ADA”), (2) whether Georgia-Pacific interfered with Teal's rights under the Family and Medical Leave Act (29 U.S.C. § 2601 et seq.) (“FMLA”), and (3) whether Georgia-Pacific retaliated against Teal for exercising her FMLA rights. [Dkt. 75 at 6].

For the following reasons, the Court GRANTS IN PART AND DENIES IN PART Georgia-Pacific's Motion for Summary Judgment.

A. Disability Discrimination 1

“The ADA prohibits an employer from discriminating against a ‘qualified individual with a disability on the basis of that disability.’ ” E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014) (quoting 42 U.S.C. § 12112(a)). An employee may proceed with a discrimination-termination claim under the ADA by either presenting “direct evidence that she was discriminated against because of her disability” or, absent direct evidence of discriminatory intent, by conducting “the burden-shifting analysis” articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. The latter analysis requires the plaintiff to establish a prima facie case of discrimination. Id. If the plaintiff is successful, the burden shifts to the defendant to “articulate a legitimate, nondiscriminatory reason for terminating” the plaintiff. Id. If articulated, the burden shifts back to the plaintiff to demonstrate that the defendant's reason is pretextual. Id. At the summary judgment stage, “a prima facie case of discrimination plus a showing that the proffered reason is pretextual is typically enough to survive summary judgment.” Id. (citation omitted). Here, Teal did not provide direct evidence of discrimination. See [Dkt. 78 at 24–31].² Thus, the Court proceeds under the burden-shifting analysis. See LHC Grp., 773 F.3d at 694.

To establish a prima facie case of discrimination under the ADA, the plaintiff must demonstrate “(1) that [s]he has a disability; (2) that [s]he was qualified for the job; (3) that [s]he was subject to an adverse employment decision on account of [her] disability.” Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999) (citing Robertson v. Neuromedical Ctr., 161 F.3d 292, 294 (5th Cir. 1998) (per curiam)); see also Dabbasi v. Motiva Enters., LLC, 107 F.4th 500, 508 (5th Cir. 2024) (saying the same); LHC Grp., 773 F.3d at 697 (saying the same).³ Here, Georgia-Pacific does not dispute that Teal had a disability and that she suffered an adverse employment decision. See [Dkt. 75 at 15–23; Dkt. 78 at 24]. Instead, Georgia-Pacific asserts that Teal cannot establish a prima facie case of discrimination because “she cannot show that she was qualified for her Utility position (or any other position) on the date of her discharge.” [Dkt. 75 at 15–16].

The ADA defines a “qualified individual” as someone “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). To avoid summary judgment, the plaintiff must show that she was “qualified at the time of [her] termination.” Clark v. Champion Nat'l Sec., Inc., 952 F.3d 570, 582 (5th Cir. 2020) (quotation and citation omitted). “The determination of qualification is two-fold: (1) whether the individual meets the necessary prerequisites for the job, such as education, experience, skills, and the like; and (2) whether the individual can perform the essential job functions, with or without reasonable accommodation.” Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 n.14 (5th Cir. 1997) (referencing 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m) (1994)). Thus, for the second prong, the plaintiff must demonstrate either (1) she “could ‘perform the essential functions of the job in spite of [her] disability,’ or, if she could not, (2) that ‘a reasonable accommodation of [her] disability would have enabled [her] to perform the essential functions of the job.’ ” LHC Grp., 773 F.3d at 697 (alterations in the original) (quoting Turco v. Hoechst Celanse Corp., 101 F.3d 1090, 1093 (5th Cir. 1996) (per curiam)).

Here, Georgia-Pacific does not dispute whether Teal possessed the “necessary prerequisites” to qualify for her different job roles. [Dkt. 75 at 15–23]. It argues, however, that she was not qualified because she was unable to perform the essential functions of her job with or without reasonable accommodations. Id. at 16–21. Thus, the Court must decide if there is a genuine issue of material fact as to whether Teal could perform the essential functions of her job despite her disability or if a reasonable accommodation would have enabled her to perform the essential functions of her job. See LHC Grp., 773 F.3d at 697.

A function is “essential” if it “bear[s] more than a marginal relationship to the job at issue.” Chandler v. City of Dall., 2 F.3d 1385, 1393 (5th Cir. 1993), holding modified on other grounds as discussed in Kapche v. City of San Antonio, 304 F.3d 493 (5th Cir. 2002) (citing Chiari, 920 F.2d at 315). The ADA requires courts to consider “the employer's judgment as to what functions of a job are essential,” such as evidence of a job description. 42 U.S.C. § 12111(8). “[A]s several courts have recognized, ‘[a]n essential element of any ․ job is an ability to appear for work[.]’ ” Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (quoting Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994)) (citing Tyndall v. Nat'l Educ. Ctrs., Inc. Cal., 31 F.3d 209, 213 (4th Cir. 1994)); see also Hypes v. First Comm. Corp., 134 F.3d 721, 727 (5th Cir. 1998) (per curiam) (“Other courts are in agreement that regular attendance is an essential function of most jobs.”) (collecting cases); Fuentes v. Krypton Sols., LLC, No. 4:11-cv-581, 2013 WL 1391113, at *4 (E.D. Tex. Apr. 4, 2013) (finding summary judgment appropriate because the plaintiff was aware that presence at work was an essential function for his job, thus making him not qualified for his job at the time he was dismissed).

In several cases, the Fifth Circuit affirmed a district court's granting of summary judgment when, at the time of the employer's adverse decision, the employee failed to provide any indication that he or she would be able to return to work within a foreseeable timeline. For example, the Fifth Circuit found that the employee was not qualified because he was unable to come to work and had not worked for five months, his FMLA leave was exhausted, and he gave his employer “no indication of when he would again be cleared to return to work.’ ” Amsel v. Tex. Water Dev. Bd., 464 F. App'x at 395, 399–400 (5th Cir. 2012) (per curiam). Furthermore, the Fifth Circuit affirmed that the plaintiff was not a qualified individual because her own physician indicated that she could “not return to work in the foreseeable future,” which rendered her unable to “perform the essential functions of her job, with or without reasonable accommodation.” Crews v. Dow Chem. Co., 287 F. App'x 410, 412 (5th Cir. 2008) (per curiam); see also Rogers, 87 F.3d at 757 (finding that the plaintiff “was not a qualified employee under ADA because he was not able to attend work at the time he was terminated, and [the employer] was not required to make reasonable accommodation in the form of an indefinite leave of absence”).

To determine whether an employee is “qualified” under the ADA, the Court must also consider whether an employee would be able to perform the essential functions of her job with a reasonable accommodation. Under the ADA, a “reasonable accommodation” may include “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(B). “An employee who needs an accommodation because of a disability has the responsibility of informing her employer.” Chevron Phillips, 570 F.3d at 621 (citing Taylor v. Principal Fin. Grp., 93 F.3d 155, 165 (5th Cir. 1996)). Once the employee makes a request for an accommodation, the employer must engage in a good faith “interactive process” with the employee to find the best way to accommodate her disability. Id. (citation omitted). The employee does not have to initiate the interactive process, however, if “the employer was unquestionably aware of the disability and had received a report from its own doctor recommending accommodations.” Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 594–95 (5th Cir. 2016) (citing Taylor, 93 F.3d at 165). Finally, an employer that does not provide a reasonable accommodation for its employee is liable under the ADA unless it “can demonstrate that the accommodation would impose an undue hardship on the operation of” the employer's business. 42 U.S.C. § 12112(b)(5)(A); see also Chevron Phillips, 570 F.3d at 613–14. A “reasonable accommodation does not require [an employer] to wait indefinitely for [the employee's] medical conditions to be corrected.” Rogers, 87 F.3d at 760 (alteration in original) (emphasis omitted) (quoting Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995)); see also Amsel, 464 F. App'x at 400 (“Indefinite leave is not a reasonable accommodation.”); Fuentes, 2013 WL 1391113, at *5 (granting summary judgment in part because plaintiff never requested an accommodation other than asking for medical leave, which the employer granted).

Here, the Court finds that there is a genuine issue of material fact as to whether Teal could perform her essential job functions. Initially, Teal's situation appears to mirror that of the plaintiffs in Amsel, Crews, and Rogers because, at the time of her termination in January 2022, Teal was away from work since March 2021 except for two days in July 2021 [Dkt. 75 at 18], she exhausted her FMLA and company leave [Dkt. 75-2 at 177],⁴ and her physician, Dr. Wells, consistently extended her leaves of absence without indicating any reasonable accommodations or restrictions that would enable her to attend work until April or June of 2022. Id. at 180, 183–84, 199–201. More specifically, in Dr. Wells's November 22, 2021, evaluation of Teal, he crossed out the capabilities section and stated, “N/A unable to work,” and provided an estimated return date of June 2022. Id. at 183–84. Further, Dr. Wells's January 18, 2022, evaluation marked that Teal was “unable to perform any of his/her job functions” such as lifting, bending, stooping, and climbing, and estimated a return date in April 2022. Id. at 198–201. However, Dr. Larry Isbell—to whom Georgia-Pacific referred Teal for an evaluation—concluded on July 1, 2021, that Teal could return to work with restrictions because she achieved maximum medical improvement (“MMI”),⁵ with 0% whole person impairment. Id. at 109. Because of two conflicting medical opinions—one indicating that Teal could not perform her essential job functions at all and one releasing her to perform her job with restrictions—a genuine dispute of material fact exists as to whether Teal was “qualified” (with or without reasonable accommodations) to perform essential functions of her job, namely, to appear for work and lift, bend, stoop, and climb. See DIRECTV, 420 F.3d at 536.

Because a genuine issue of material fact exists as to whether Teal was qualified, and therefore whether she established a prima facie case of discrimination, the Court declines to proceed with the burden-shifting framework. See LHC Grp., 773 F.3d at 694 (discussing the burden-shifting framework).

Accordingly, the Court denies summary judgment on Teal's ADA discrimination claim.

B. FMLA Claims

The FMLA provides that an employer shall not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the statute. 29 U.S.C. § 2615(a)(1). It further furnishes prescriptive and proscriptive rights to employees. See Haley v. All. Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004). The prescriptive rights include the right for an eligible employee to take up to twelve work weeks of leave in a twelve-month period due a condition that impairs her performance and the right for the employee to return to the same or a comparable position she held before taking leave. Id. (citing 29 U.S.C. §§ 2612(a)(1)(D), 2614(a)(1)). The proscriptive rights “include an employee's right not to be discriminated or retaliated against for having exercised the right to take FMLA leave” brought under 29 U.S.C. § 2615(a)(2). Id.

Here, Georgia-Pacific seeks summary judgment on Teal's FMLA interference and retaliation claims, arguing that she was provided multiple leaves of absence, and she was not terminated until after her FMLA leave was exhausted. [Dkt. 75 at 7].

i. Interference with FMLA

To establish a prima facie case of interference with an employee's exercise of their FMLA rights, she must show: “(1) [s]he was an eligible employee; (2) [her] employer was subject to FMLA requirements; (3) [s]he was entitled to leave; (4) [s]he gave proper notice of [her] intention to take FMLA leave; and (5) [her] employer denied [her] the benefits to which [s]he was entitled under the FMLA.” Caldwell v. KHOU-TV, 850 F.3d 237, 245 (5th Cir. 2017) (citing Lanier v. Univ. Tex. Sw. Med. Ctr., 527 F. App'x 312, 316 (5th Cir. 2013)); see also McCuin v. Campbell's Soup Co., No. 4:18-CV-221-ALM-KPJ, 2019 WL 7859566, at *4–5 (E.D. Tex. Nov. 25, 2019), report and recommendation adopted, 2019 WL 7183485 (E.D. Tex. Dec. 26, 2019) (applying the same rule to an interference claim where the employer required the employee to call into work on a day off). “As with the ADA ․ even if the plaintiff makes out a prima facie case, he may not overcome a motion for summary judgment if the employer articulates a legitimate non-discriminatory reason for the employment action at issue.” Caldwell, 850 F.3d at 245 (citing Miller v. Metrocare Servs., 809 F.3d 827, 832 (5th Cir. 2016)). “Thereafter, ‘the burden shifts back to the employee to show by a preponderance of the evidence that the employer's articulated reason is a pretext for discrimination.’ ” Tatum v. S. Co. Servs., Inc., 930 F.3d 709, 713 (5th Cir. 2019) (quoting Richardson v. Monitronics Int'l, Inc., 434 F.3d 327, 332–33 (5th Cir. 2005)).

Under Fifth Circuit precedent, however, an employer may be estopped from arguing that the employee was ineligible for FMLA leave:

[A]n employer who without intent to deceive makes a definite but erroneous representation to his employee that she is an “eligible employee” and entitled to leave under FMLA, and has reason to believe that the employee will rely upon it, may be estopped to assert a defense of non-coverage, if the employee reasonably relies on that representation and takes action thereon to her detriment.

Minard v. ITC Deltacom Commc'ns, Inc., 447 F.3d 352, 359 (5th Cir. 2006) (citations omitted) (finding that the employer “unintentionally made a definite misrepresentation to [the plaintiff] that she was an ‘eligible employee’ under FMLA at the time she requested leave; that she reasonably relied upon that misrepresentation in taking leave and undergoing surgery for the protection of her health” but finding a genuine dispute of material fact as to whether the plaintiff relied to her detriment). In other words, to raise a genuine dispute as to equitable estoppel, the plaintiff must provide evidence that: “(1) the employer made ‘a definite but erroneous representation’ that the employee is eligible and entitled to leave; (2) the employer ‘has reason to believe that the employee will rely upon’ the representation; and (3) ‘the employee reasonably relies on that representation and takes action thereon to her detriment.’ ” Sprague v. Ed's Precision Mfg., LLC, 548 F. Supp. 3d 627, 635 (S.D. Tex. 2021) (quoting Minard, 447 F.3d at 359).

In applying the Minard test to a FMLA retaliation claim where the plaintiff sought paid leave to care for a child who could not attend school due to COVID-19, the Southern District of Texas in Sprague found that the record raised genuine factual disputes as to whether the plaintiff could meet each Minard factor. Id. at 635–36. First, the employer falsely “represented to [the plaintiff] that he was eligible for leave under” FMLA when the plaintiff's supervisor signed the leave the plaintiff submitted. Id. at 635. Second, the court found that the employer had a clear reason to believe the employee would rely on the representation that he was eligible because it had reason to know that at least one of the plaintiff's children was not able to attend school during COVID-19. Id. at 636. Finally, the court found a genuine issue of material fact as to whether the plaintiff relied to his detriment on his employer's representation because the employer indicated it fired the plaintiff because of misrepresentation in his application for paid leave, while the plaintiff claims that he would have corrected the misrepresentation if the employer raised it before he took leave. Id. In contrast, the Fifth Circuit in dicta in Ford-Evans v. United Space Alliance, LLC, declined to apply equitable estoppel because neither the employer nor third-party administrator made “any representations to [the plaintiff] that her leave was protected by FMLA during the time of the relevant events at issue.” 329 F. App'x 519, 527 (5th Cir. 2009) (per curiam).

Here, Georgia-Pacific asserts that Teal was not an “eligible employee” when she was denied further FMLA leave on January 19, 2022. [Dkt. 75 at 25]. In response, Teal does not provide evidence of her eligibility for FMLA leave and instead contends that Georgia-Pacific's argument lacks merit because it is estopped from raising an argument that she was not eligible. [Dkt. 78 at 22–24].

a. Equitable Estoppel

The first question is whether Georgia-Pacific is estopped from raising its ineligibility argument. Minard, 447 F.3d at 359. The Court finds that Teal has not created a genuine dispute of material fact demonstrating that Georgia-Pacific or Sedgwick made an erroneous representation about her eligibility or that it was reasonable to rely on such representations.

As to misrepresentation, Teal argues that she has “overwhelming evidence” that Georgia-Pacific represented that she was protected until April 2022. [Dkt. 78 at 23]. She cites to Georgia-Pacific and Sedgwick's records and an email that she claims exhibit that she had protected leave until April 2022. Id.; see also [Dkt. 78-11; Dkt. 78-13]. However, as noted by Georgia-Pacific, Teal “interchanges FMLA leave and non-protected and discretionary [Georgia Pacific] leave.” [Dkt. 83 at 6]. The exhibits Teal relies upon clearly distinguish between FMLA and discretionary company leave. For example, in the Georgia-Pacific System Log [Dkt. 78-11], several call entries demonstrate that Georgia-Pacific expressly told Teal that her FMLA leave exhausted, even when her company leave had not. Id. at 2–7, 10.⁶ What is more, these records were created after Teal received written notice on October 16, 2021, that her FMLA leave exhausted. See id.; [Dkt. 75-2 at 177]. Some of the records reference the “misinformation” given to her, but Teal fails to produce any record that the conversation with Susan H. that provided the “misinformation” actually occurred. See [Dkt. 78-11 at 11]; see also [Dkt. 75-2 at 37] (when asked whether she recorded the conversation with Susan, she replied “Yes, I did, but I lost it.”). Additionally, Teal relies on an email dated January 28, 2022, from a Georgia-Pacific HR representative, Cathy Dover, that states that Teal indicated “she has not received a letter from Sedgwick concerning the denial and also went on to say that she was told this week by someone at Sedgwick that her job was protected until sometime in April.” [Dkt. 78-13 at 2]. However, Georgia-Pacific provides evidence of the Sedgwick denial letter dated October 16, 2021, and Teal confirmed receipt of that letter during her deposition. [Dkt. 75-2 at 177; id. at 33–35].

One piece of evidence demonstrating a “misrepresentation” originates from hearsay evidence that a Sedgwick representative named Susan H. told Teal that she had FMLA leave exhausted in April 2022. See [Dkt. 75-2 at 37; Dkt. 78-1 at 3]. Hearsay statements “are not competent summary judgment evidence.” Okoye v. Univ. Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 510 n.5 (5th Cir. 2001) (citing Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995)). Hearsay is a statement made out of court that a party offers to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Here, Susan H.'s supposed statement is hearsay because it was made out of court, and Teal offers it in her declaration to prove that a Sedgwick representative misrepresented that she had FMLA leave until April 2022. The Court also finds that the statement does not fall under an exclusion or exception under the Federal Rules of Evidence. See Fed. R. Evid. 801, 803, 804. Furthermore, Teal asserts that she was told that she was eligible for FMLA until September of 2022. [Dkt. 78 at 23]; see also [Dkt. 78-1 at 3] (“I was even told by Sedgwick that I had FMLA leave until September of 2022.”). One of the Georgia-Pacific System Log entries appears to have a typographical error that indicates that “FMLA exhausted on 09/27/2022.” Id. at 10. The Court concludes that, while there was an error in this entry, this alleged misrepresentation was not made until after Teal was terminated. Id. (“EE advised that she was terminated today.”). In Sprague, the court found that the employer misrepresented the employee's eligibility when the supervisor signed the leave form submitted by the employee. 548 F. Supp. 3d at 635. Furthermore, the Fifth Circuit in Minard found that the employer made a “definite misrepresentation” that the employee was eligible “at the time she requested leave.” 447 F.3d at 359. Therefore, because the supposed representation occurred after Teal was terminated, the alleged misrepresentation here is distinguishable from the misrepresentations made in Sprague and Minard.

Even if Teal could prove that Georgia-Pacific and/or Sedwick made an erroneous representation of her eligibility and had reason to know she would rely on the representation, Teal's argument fails because she could not reasonably rely on them. Considering that Teal was given notice that she was no longer eligible for FMLA leave both in writing [Dkt. 75-2 at 177; id. at 33–35] and over the phone [Dkt. 78-11], any reliance on isolated representations made would not have been reasonable.

Accordingly, the Court finds that Teal's equitable estoppel argument fails.

b. Eligibility

Because Georgia-Pacific is not estopped from raising the ineligibility argument, the next issue is whether Teal was eligible to take FMLA leave. An “eligible employee” is one who has been employed “for at least 12 months by the employer with respect to whom leave is requested” and “for at least 1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A). Here, Teal started working for Georgia-Pacific in 2013, and her FMLA leave began in March 2021. [Dkt. 75 at 8–9; Dkt. 78 at 7, 11]. Thus, she was employed by Georgia-Pacific “for at least 12 months.” 29 U.S.C. § 2611(2)(A)(i). However, what is not so clear is whether Teal provided 1,250 hours of work with Georgia-Pacific during the 12-month period before she applied for FMLA benefits in November 2021. Georgia-Pacific produced evidence that Teal exhausted her FMLA leave on September 27, 2021. See [Dkt. 75-2 at 177, 196]. Teal became eligible for FMLA leave and was approved beginning March 16, 2021. Id. at 81. By her own admission, Teal conceded that she exhausted all FMLA and company leave and that she was notified of this fact in writing on October 16, 2021. Id. at 34; see also id. at 177 (October 16, 2021 letter of denial). On January 19, 2022, Sedgwick sent Teal a letter denying her leave of absence request for November 1, 2021, through April 17, 2022, indicating that she was “no longer eligible for FMLA as of [her] first day of absence.” Id. at 204; see also id. at 36 (deposition of Teal admitting as much). Georgia-Pacific contends in its motion that Teal “admits that she had not worked 1,250 hours in the twelve months preceding her request for FMLA leave in November 2021.” [Dkt. 75 at 25]. But, Georgia-Pacific does not cite to any evidence in the record of such an admission. Id. In response, however, Teal does not present contradictory evidence that she met the requisite hours to be eligible for FMLA leave. See [Dkt. 78 at 22–24]. In fact, she does not raise any arguments or evidence creating a genuine issue of material fact as to the prima facie case of FMLA interference. Id.

If a summary judgment movant demonstrates an absence of a genuine issue of material fact, “the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (per curiam) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). When resolving issues of material fact in favor of the nonmovant, the parties must have presented an actual controversy in the first place by “submit[ing] evidence of contradictory facts.” Id. In the absence of proof, courts should not “assume that the nonmoving party could or would prove the necessary facts.” Id. (emphasis omitted) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)); see also Fed. R. Civ. P. 56(e)(2)–(3) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact ․ the court may ․ consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials ․ show that the movant is entitled to it[.]”). Although Georgia-Pacific failed to cite evidence in the record of Teal's admission that she did not meet the requisite hours to be considered an “eligible employee,” it produced other evidence that documented that she was not eligible. See, e.g., [Dkt. 75-2 at 34, 177, 196]. Furthermore, Teal failed to properly address Georgia-Pacific's assertion with contradictory evidence and instead limited her response on an estoppel argument. See [Dkt. 78 at 22–24]. Because the Court cannot “assume that the nonmoving party could or would provide necessary facts,” Little, 37 F.3d at 1075, and because Federal Rule of Civil Procedure 56(e) permits the court to consider the fact undisputed, the Court finds no genuine issue of material fact that Teal failed to meet the eligibility criteria for further FMLA leave.

Accordingly, the Court grants summary judgment on Teal's FMLA interference claim.

ii. Retaliation for Exercising FMLA Rights

To establish a prima facie case of retaliation under the FMLA, the plaintiff must prove “(1) [s]he was protected under the FMLA; (2) [s]he suffered an adverse employment action; and (3) [s]he was treated less favorably than an employee who had not requested leave under the FMLA or the adverse decision was made because [s]he sought protection under the FMLA.” Mauder v. Metro. Auth. Harris Cnty., Tex., 446 F.3d 574, 583 (5th Cir. 2006) (citation omitted). The third element “requires proof of a causal link” between the protected activity and the adverse employment action.⁷ Campos v. Steves & Sons, Inc., 10 F.4th 515, 527 (5th Cir. 2021) (citing Acker v. Gen. Motors, LLC, 853 F.3d 784, 790 (5th Cir. 2017)); Tatum, 930 F.3d at 713. In FMLA retaliatory discharge cases, “the traditional [burden-shifting] framework does not always apply.” Richardson, 434 F.3d at 333. Instead, a “mixed-motive framework applies to cases in which the employee concedes that discrimination was not the sole reason for her discharge, but argues that discrimination was a motivating factor in her termination.” Id. In extending the mixed-motive framework to FMLA retaliation cases, id. at 334, the Fifth Circuit provided the test:

Within the mixed-motive framework, (1) the employee must make a prima facie case of [FMLA retaliation]; (2) the employer must articulate a legitimate, non-discriminatory reason for the adverse employment action; and (3) the employee must offer sufficient evidence to create a genuine issue of fact either that (a) the employer's proffered reason is a pretext for discrimination, or—and herein lies the modifying distinction—(b) that the employer's reason, although true, is but one of the reasons for its conduct, another of which was discrimination. If the employee proves that discrimination was a motivating factor in the employment decision, the burden again shifts to the employer, this time to prove that it would have taken the same action despite the discriminatory animus. The employer's final burden is effectively that of proving an affirmative defense.

Id. at 333 (quotations, citations, and footnotes omitted).

Here, Georgia-Pacific contends that Teal's FMLA retaliation claim fails because she cannot establish the final element—causation—of a prima facie case, or alternatively, that, even if she could establish a prima facie case of retaliation, Georgia-Pacific had a legitimate, non-discriminatory reason for her termination. [Dkt. 75 at 26–27]. In contrast, Teal asserts that she “has overwhelming direct evidence of a causal link between FMLA-protected activity and Teal's denial of leave,” and that, at the very least, her evidence “establishes that Teal's FMLA leave was a negative consideration under a mixed-motive framework.”⁸ [Dkt. 78 at 17]. The Court first determines whether Teal has created a genuine issue of material fact for the element of causation. See Mauder, 446 F.3d at 583.

When evaluating causation, a court “shall consider the ‘temporal proximity’ between the FMLA leave[ ] and the termination.” Id. (citing Wilson v. Lemington Home for the Aged, 159 F. Supp. 2d 186, 195–96 (W.D.Pa.2001)). The Fifth Circuit concluded that “a month is close enough in time to create a causal connection.” Campos, 10 F.4th at 528 (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 286, 273–74 (2001); Richard v. Cingular Wireless LLC, 233 F. App'x 334, 338 (5th Cir. 2007)). The court in Campos also agreed with the conclusion in Richard, 233 F. App'x at 338, that two-and-a-half months was sufficient to establish causation in a Title VII claim. Id. Therefore, the Fifth Circuit has indicated that causation may be satisfied if the time between an employee's FMLA leave and her termination is within one to two-and-a-half months. See id. Further, the plaintiff need not show that the exercise of FMLA leave was the only reason for her termination, but she is “required to show that the protected activity and the adverse employment action are not completely unrelated.” Mauder, 446 F.3d at 583 (citing Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir.2001)). Thus, in addition to temporal proximity, the circumstances leading up to the termination are relevant. For example, in Miles-Hickman v. David Powers Homes, Inc., the Southern District of Texas concluded that the plaintiff created a genuine issue of material fact because she demonstrated that she was terminated while she was out of the office during FMLA leave for “emergency procedures.” 589 F. Supp. 2d 849, 875 (S.D. Tex. 2008).

Here, the Court finds that Teal has created a genuine issue of material fact as to the causation element of a prima facie case of FMLA retaliation. First, the Court emphasizes that Teal cannot name another employee at Georgia-Pacific who remained employed after taking nearly ten months of leave with no return date or intention to return to work. See [Dkt. 75 at 26]. Additionally, Georgia-Pacific has demonstrated that the temporal proximity between the exhaustion of Teal's FMLA leave and her termination is not close enough to prove causation under Fifth Circuit precedent. Georgia-Pacific granted her all the FMLA leave that she requested without incident until it exhausted on September 27, 2021. See [Dkt. 75-2 at 177 (October 16, 2021, letter explaining that Teal exhausted her FMLA leave)]. Even then, Georgia-Pacific did not terminate her until January 28, 2022, four months after her FMLA leave exhausted. Therefore, unlike Campos (where the Fifth Circuit found a sufficient causal connection when an employee's termination occurred one to two-and-a-half months after exercising her FMLA leave), the Court finds that a four-month gap between the exhaustion of Teal's FMLA leave, and her termination does not have a close enough temporal proximity to create a causal connection.

However, the Court finds a genuine dispute of material fact lies in the reasons why Teal was terminated based on the circumstances of her termination. On one hand, Georgia-Pacific claims that she was discharged because her leave exhausted, not because she used her FMLA leave. Danny Wright, a decision-maker in her termination, stated during a deposition that he did not support additional leave in January 2022 “because her leave had been extended multiple, multiple times․ [E]very time it was time for her to come back to work, something would change and it would get extended longer, and she would change doctors.” [Dkt. 78-6 at 24]. Wright also stated that he “wasn't in support of extending [Teal's] leave [because] she had exhausted all the leave that was guaranteed by FMLA and through our company.” Id. at 23–24. This testimony suggests that Teal was terminated because she exhausted available leave, which attenuates causation. On the other hand, Teal presented evidence that the day after Teal's FMLA leave exhausted (September 28, 2021), Cathy Dover in HR sent an email to her supervisor stating, “This employee has a long history of intermittent and continuous claims.” [Dkt. 78-10]. When asked during a deposition whether Teal's “long history” was relevant when terminating her, Dover said, “At the time, yes.” [Dkt. 78-2 at 15–16]. This raises a question as to whether Teal's use of her FMLA leave ultimately influenced Georgia-Pacific's decision to terminate her because all that she was “required to show that the protected activity and the adverse employment action are not completely unrelated.” Mauder, 446 F.3d at 583; see also DIRECTV, 420 F.3d at 536.

Because a genuine issue of material fact exists as to whether causation exists, and therefore whether Teal established a prima facie case of FMLA retaliation, the Court declines to proceed with the burden-shifting framework. See Richardson, 434 F.3d at 333 (discussing the mixed-motive framework).

Accordingly, the Court denies summary judgment on Teal's FMLA retaliation claim.

IV. CONCLUSION

It is therefore ORDERED that Georgia-Pacific's Motion for Summary Judgment [Dkt. 75] is GRANTED IN PART AND DENIED IN PART. The portions of Georgia-Pacific's Motion for Summary Judgment relating to Disability Discrimination and FMLA Retaliation are DENIED, while the portion of the Motion relating to FMLA Interference is GRANTED.

SIGNED this 20th day of November, 2024.

FOOTNOTES

2.   In fact, Teal begins her argument with the prima facie elements of ADA discrimination. See id.

3.   The Fifth Circuit in LHC Group provided an in-depth review of the elements required for a plaintiff to prove a prima facie case of discrimination under the ADA. 773 F.3d at 695–97. It stated that the Fifth Circuit's case law clearly requires a plaintiff to demonstrate that (1) she has a disability and (2) she is qualified for the job she held. Id. at 695. From there, however, the cases “splinter into three distinct lines regarding causal nexus.” Id.First, as in Zenor, the plaintiff must prove that “he was subject to an adverse employment decision on account of his disability.” Id. (citing Zenor, 176 F.3d at 853 and then citing Chiari v. City of League City, 920 F.2d 311 (5th Cir. 1991)). Second, some cases require the plaintiff to prove that she “was subject to an adverse employment decision” and that she “was replaced by a non-disabled person or was treated less favorably than non-disabled employees.” Id. (quoting Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir. 1997)). Finally, some cases require the plaintiff to prove causation twice by demonstrating that she “was subjected to an adverse employment action on account of her disability or the perception of her disability” and that she “was replaced by or treated less favorably than non-disabled employees.” Id. (quoting E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009)).The Fifth Circuit in LHC Group ultimately used the first formulation for several reasons: (1) it was the first formulation in the disability-discrimination context, (2) the second test was imported from a discriminatory hiring—not termination—case, (3) it is in-line with the other sister Circuits, and (4) the third formulation requires proving causation twice. Id. at 695–97.Because of the Fifth Circuit's reasoning, the Court applies the Zenor test to determine whether Teal has alleged a prima facie case of discrimination under the ADA.

4.   See further discussion on Teal's FMLA claims infra Section III.B.

5.   MMI is defined as “the earliest date after which, based upon reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.” Id. at 109.

6.   Many of the entries Teal highlights in the exhibit demonstrate that company leave exhausted in April 2022, but that she was informed that her FMLA leave had exhausted in September 2021. See id.

7.   It is important to note that the standard for proving causation has been repeatedly called into question in the Fifth Circuit. In an unpublished opinion, the Fifth Circuit in Stanton v. Jarvis Christian College detailed the history of the Fifth Circuit's decisions to decline application of a new standard. No. 20-40581, 2022 WL 738617, at *4–7 (5th Cir. Mar. 11, 2022) (per curiam). More specifically, the U.S. Supreme Court interpreted retaliation claims under the Age Discrimination in Employment Act (“ADEA”) and Title VII using a “but for” causation test (e.g., that the retaliation would not have occurred in the absence of the employer's wrongful actions). See Gross v. FBL Fin. Servs., 557 U.S. 167 (2009) (ADEA); Univ. Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (Title VII). The Stanton court detailed the occasions in which the Fifth Circuit declined to apply the “but for” causation standard to FMLA retaliation claims, most notably because neither Supreme Court decision applied the standard to FMLA retaliation. 2022 WL 738617, at *5. “As it stands, Richardson is the law of this circuit, which permits a mixed-motive instruction when there is evidence that both legitimate and illegitimate motives played a role in the challenged employment action.” Id. at *7. Accordingly, the Court proceeds with the Richardson standard in its analysis.

8.   The Court notes that Teal asserts that she has direct evidence of causation, not direct evidence of retaliatory or discriminatory intent. One unpublished Fifth Circuit opinion, Ray v. United Parcel Serv., 587 F. App'x 182, 187–88 (5th Cir. 2014), analyzed whether the plaintiff had direct evidence of discrimination for his FMLA retaliation claim. There, the plaintiff asserted “that summary judgment is forestalled by direct evidence of discrimination.” Id. at 187. Here, Teal claims she has direct evidence of causation [Dkt. 78 at 18], so the Court does not analyze whether she possesses direct evidence of some sort of retaliatory or discriminatory intent.

Michael J. Truncale United States District Judge