Cuellar v. Keppel Amfels, L.L.C.

• Decision Date: 09 September 2013
• Docket Number: No. 12–40165.,12–40165.
• Citation: 731 F.3d 342
• Parties: Jessica CUELLAR, Plaintiff–Appellant, v. KEPPEL AMFELS, L.L.C., Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

731 F.3d 342

Jessica CUELLAR, Plaintiff–Appellant,

v.KEPPEL AMFELS, L.L.C., Defendant–Appellee.

No. 12–40165.

United States Court of Appeals, Fifth Circuit.

Sept. 9, 2013.

Kathryn J. Youker, Texas RioGrande Legal Aid, Incorporated, Brownsville, TX, Rodolfo David Sanchez, Esq., Texas RioGrande Legal Aid, Incorporated, Weslaco, TX, for Plaintiff–Appellant.

Brian Charles Miller, Royston, Rayzor, Vickery & Williams, L.L.P., Corpus Christi, TX, Keith Neill Uhles, Esq., Royston, Rayzor, Vickery & Williams, L.L.P., Brownsville, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.

PER CURIAM:

Jessica Cuellar alleges that her secondary employer, Keppel Amfels, L.L.C. (“Keppel Amfels”), violated § 2615(a)(1) of the Family Medical Leave Act (“FMLA”) by discouraging her primary employer, staffing agency Perma–Temp Personnel Services, Inc. (“Perma–Temp”), from seeking her reinstatement after an FMLA-authorized maternity leave. The district court granted summary judgment in favor of Keppel Amfels. Because Cuellar fails to present a genuine issue of material fact, we AFFIRM.

I.

Keppel Amfels builds and repairs offshore drilling platforms and marine vessels at the Port of Brownsville, Texas. It relies on lease-labor and temporary staffing agencies, including Perma–Temp, to staff about half of its local work assignments. Although these agencies fill “temporary” positions, some placements last for several years.

Keppel Amfels and Perma–Temp started working together in about 1996. According to Cuellar, the entities developed a course-of-dealing over the years: “When an opening at Keppel Amfels arose, Perma–Temp would select three to four candidates from its pool of available workers and send their resumes to Keppel Amfels. Keppel Amfels would use those resumes to decide which candidates it would interview and which candidate would fill the opening.” Cuellar emphasizes that Perma–Temp never offered to send a worker to fill a new or replacement position unless and until it received a request from Keppel Amfels.

When a Material Information Clerk assignment opened in June 2007, Perma–Temp recommended, and Keppel Amfels hired, Cuellar. Cuellar became pregnant at some time during her employment and notified both Perma–Temp and Keppel Amfels that she would require medical leave following the birth of her child. Cuellar went into pre-term labor on August 17, 2008, and gave birth a few days later.

Cuellar alleges that, on the same day that she informed Keppel Amfels that she had been admitted to the hospital for pre-term labor, Cuellar's supervisor requested a replacement employee. The supervisor noted on a personnel requisition form that the reason for the request was to “temporarily fill in for employee out on maternity leave and permanently replace employee retiring at end of year.” Keppel Amfels selected Geralyn Perez, the daughter of a Keppel Amfels Project Manager, for the position. According to Perez, a Keppel Amfels supervisor told her that “somebody was on maternity leave and [Perez] was taking her place.” Perez started on August 20, 2008.

Cuellar further alleges that, three days into her maternity leave, Keppel Amfels informed Perma–Temp that it had terminated her assignment. Cuellar bases this factual assertion on a note in Perma–Temp's database, which states: “On 8/21/08 Ben Sandoval [of Keppel Amfels's human resources department] just [called] to let us know that he is ending [Cuellar's] job as of today and also stated that she is able to be re-hired.” Sandoval does not remember making this call to Perma–Temp and, in any event, disputes that he would have used the term “ending” regarding Cuellar's position. Sandoval concedes, however, that he probably told Perma–Temp that Keppel Amfels intended to replace Cuellar with another employee. Although Cuellar was eligible for re-hire, meaning that she was not terminated for cause, Keppel Amfels did not hold any position open for her.

Unaware of these events, Cuellar called her supervisor at Keppel Amfels when she was released to return to work. Cuellar's supervisor transferred her to Sandoval in Keppel Amfels's human resources department. According to Cuellar, Sandoval told her that Keppel Amfels was “doing fine without her” and that the company would call her if there was another opening in her department. Cuellar then called Perma–Temp and relayed her conversation with Sandoval; she claims that a Perma–Temp employee encouraged her to seek unemployment benefits, which she did. Perma–Temp did not refer Cuellar back to Keppel Amfels or ask Keppel Amfels to reinstate her to the Material Information Clerk position.

Cuellar filed suit against Keppel Amfels, asserting that Keppel Amfels (1) interfered with her FMLA rights by “convincing” Perma–Temp not to seek her reinstatement in violation of 29 U.S.C. § 2615(a)(1), and (2) retaliated against her based on her exercise of FMLA rights in violation of § 2615(a)(2). On summary judgment, the district court “merged” Cuellar's claims and analyzed them both pursuant to the McDonnell Douglas burden-shifting regime. It held that Cuellar stated a prima facie case, but concluded that both of her claims failed because there was “no evidence in the record that [Keppel] Amfels acted with a discriminatory animus by terminating Cuellar's assignment.” Accordingly, the district court granted KeppelAmfels's motion for summary judgment and dismissed Cuellar's claims against Keppel Amfels with prejudice.¹ Cuellar appeals only the dismissal of her § 2615(a)(1) “interference” claim.²

II.

We review de novo a district court's grant of summary judgment, applying the same standard as the district court. Ford Motor Co. v. Tex. Dep't of Transp., 264 F.3d 493, 498 (5th Cir.2001) (citation omitted). Summary judgment is appropriate “if the movant shows that 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). “A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “On cross-motions for summary judgment, we review each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party.” Ford, 264 F.3d at 498 (citing Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir.1994)).³

III.

Congress enacted the FMLA to permit eligible employees “to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 372 (5th Cir.2008) (citing 29 U.S.C. § 2601(b)(2)). The statute guarantees eligible employees a total of twelve weeks of leave in a one-year period when the leave relates to the birth of a child. 29 U.S.C. § 2612(a)(1). Upon the employee's timely return, the employer must reinstate the employee “to the same position as previously held or a comparable position with equivalent pay, benefits, and working conditions.” Smith v. E. Baton Rouge Parish Sch. Bd., 453 F.3d 650, 651 (5th Cir.2006) (citing 29 U.S.C. § 2614(a)(1)).

Where two businesses “exercise some control over the work or working conditions of the employee, the businesses may be joint employers under FMLA.” 29 C.F.R. § 825.106(a). Under the relevant regulations, a joint employer's obligations under the FMLA depend on whether it is the “primary” or “secondary” employer. Id. § 825.106(c). Where an employee obtains employment through a temporary placement agency, “the placement agency most commonly would be the primary employer.” Id. Applying the regulations here, we conclude that Perma–Temp was Cuellar's primary employer, and Keppel Amfels was her secondary employer.

Only the primary employer is responsible for providing FMLA leave. Id. § 825.106(c). In addition, “[j]ob restoration is the primary responsibility of the primary employer.” Id. § 825.106(e). A secondary employer bears only a conditional burden: it “is responsible for accepting an employee returning from FMLA leave ... if [it] continues to utilize an employee from the temporary placement agency, and the agency chooses to place the employee with the secondary employer.” Id. (emphasis added).

A secondary employer is not without independent FMLA obligations, however. In addition to its conditional job-restoration duty, a secondary employer is “ also responsible for compliance with the prohibited acts provisions with respect to its jointly employed employees....” Id. (citing § 825.220(a)) (emphasis added). The “prohibited acts provisions” appear in § 2615, and include two relevant categories of illegal behavior:

(1) Exercise of rights

It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.

(2) Discrimination

It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.

29 U.S.C. § 2615(a). The regulations provide that “interfering with” the exercise of an employee's rights “would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave” and “manipulation by a covered employer to avoid responsibilities under FMLA.” 29 C.F.R. § 825.220(b). The comments to the final rule implementing the FMLA's joint-employment regulations explain:

[A]lthough job restoration is the responsibility of the primary employer, the purposes of the Act would be thwarted if the secondary employer is able to prevent an employee from returning to...