Jeanne Wallner v. J.J.B. Hilliard, W.L. Lyons LL

NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0824n.06

No. 13-6548

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 31, 2014
JEANNE LEE WALLNER, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE WESTERN
J.J.B. HILLIARD, W.L. LYONS LLC, dba Hilliard )
DISTRICT OF KENTUCKY
Lyons Asset Management, )
)
Defendant-Appellee. )
)

BEFORE: ROGERS and GRIFFIN, Circuit Judges; and VAN TATENHOVE, District Judge.*

GRIFFIN, Circuit Judge.

Plaintiff Jeanne Wallner, a twenty-seven-year employee who was fired by defendant

Hilliard Lyons nine days after returning to work from taking leave under the Family and Medical

Leave Act (“FMLA”), appeals the district court’s entry of summary judgment against her FMLA

interference and retaliation claims. We affirm the entry of summary judgment in defendant’s

favor on Wallner’s FMLA interference claim because she has neither alleged nor demonstrated

that she was denied a statutory benefit to which she was entitled. But, because we conclude that

a reasonable jury could find that Wallner’s exercise of her FMLA rights was a motivating factor

for defendant’s decision to terminate her, we reverse the entry of judgment against her FMLA

retaliation claim and remand for further proceedings.

*
The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
No. 13-6548
Wallner v. Hilliard Lyons

I.

Wallner was hired by Hilliard Lyons, a financial brokerage firm, in 1982 and worked as

an options trader in its three-person options department for twenty-seven years. In 2009, her

supervisor was Denny Moorman, while Cassondra Dunning—a trader like Wallner—rounded

out the department.

In January 2009, Wallner was preparing to leave for vacation but learned on the evening

before her planned departure that her domestic flight had been rescheduled to leave the next day

at 7:00 a.m. rather than at 7:00 p.m. Wallner called Moorman that evening to request the next

day off of work due to the rescheduled flight, and he granted her request. When she returned

from vacation, however, Moorman, who had earlier communicated to human resources his

concerns that Wallner habitually arrived late to work, handed Wallner a written warning for

“chronic tardiness and abuse of unscheduled absences.” The “unscheduled absence” to which

the warning referred was the day that Moorman had given her permission to take off. According

to Moorman, each workday ended at 5:00 p.m., meaning that her call in the evening was the

“next day as far as I’m concerned, which would be [an unscheduled] same day [request for time

off].” Despite the warning’s additional allegation of habitual tardiness, Moorman had never

mentioned chronic tardiness as a deficiency in Wallner’s previous performance appraisals.

In June 2009, Wallner requested FMLA leave in order to have knee-replacement surgery.

Her physician completed the pertinent paperwork, estimating that Wallner would be unable to

work for two months: from August 11 until “approx[imately]” October 11, 2009. As Hilliard

Lyons concedes, Wallner’s FMLA leave was approved through the end date noted by Wallner’s

physician.

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Wallner underwent her scheduled surgery and began taking FMLA leave while

recuperating. Wallner’s short-term disability insurance carrier, however, had calculated

Wallner’s return-to-work date as September 22, 2009. On September 14 and 15, Sharon

Landgraf, a human resources manager at Hilliard Lyons, telephoned Wallner and informed her

that she was expected to return to work on September 22. Wallner, who was still convalescing

from surgery, tried to explain to Landgraf the difference between short-term disability and

FMLA leave and that she could not return to work until her doctor cleared her to do so.

Landgraf nevertheless insisted that Wallner needed to return on September 22. Courtesies

degenerated, and Wallner’s husband, who had been listening to the exchange in the background,

began shouting profanities that Landgraf could hear over the phone.

After conversing with Landgraf, Wallner contacted her short-term disability carrier and

was able to extend her coverage through October 1. Upon receiving the update, Landgraf sent

Wallner a letter that again erroneously conflated short-term disability leave with FMLA leave,

informing Wallner that her FMLA leave had been extended through October 1, 2009, with a

return-to-work date of October 2.

Because her FMLA leave was not coterminous with her short-term disability coverage,

Wallner—who did not receive Landgraf’s letter until after October 2—was not required to return

to work on the day that her disability coverage expired and did not do so. Her next physician’s

appointment was on Monday, October 5, at which her doctor cleared her to return to work—

almost a week earlier than he had initially estimated would be possible. Immediately upon

receiving clearance from her doctor to return to work, Wallner contacted Hilliard Lyons with the

news that she would be back at work the next day.

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During Wallner’s absence on FMLA leave, Landgraf had twice informed Moorman that

Wallner would be returning to work when she actually would not—first on September 22, then

on October 2. Landgraf does not recall ever informing Moorman that she was incorrect about

Wallner’s return-to-work date, and Moorman does not remember being told that Landgraf had

been mistaken. In fact, Moorman had been “suspicious” that Wallner would not show up on

September 22, and when she did not, he felt that his suspicions had been confirmed. “[T]he

dates were changing,” and Moorman was simply going to “wait until she got back” before he

“believed” that she would actually show up on any given date. In the meantime, running a three-

person department with only two people was difficult for Moorman, who later indicated that the

department was so busy that he could not leave it during Wallner’s FMLA absence to attend

meetings in other locations or even, at times, to take lunch or bathroom breaks.

On October 6—the day of Wallner’s return from FMLA leave—three things happened.

First, she was reinstated to her options trader position. Second, she was issued a final written

warning for her behavior during the September 15 phone call with Landgraf and for purportedly

failing to stay in contact with Hilliard Lyons afterwards. The warning was styled a “final”

written warning despite the fact that Wallner had not received any intermediate warning for her

behavior, as was required by company policy. And third, Wallner’s colleague, Cassondra

Dunning, began making informal records of when Wallner arrived for work each morning.

According to Dunning’s records—which she claims that she gave to Landgraf at some

point but cannot recall whether it was before or after Wallner’s termination—Wallner arrived a

few minutes after 8:00 a.m. on five days following her return to work: specifically, at 8:05, 8:02,

8:06, 8:09, and 8:05 a.m. Moorman himself did not keep any documentation of Wallner’s arrival

times, despite the fact that Landgraf had instructed him to do so if her tardiness was a problem.

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When Wallner arrived at 8:05 a.m. on October 15 (video footage later established that she had

actually arrived at 8:02:52), Moorman decided that she should be fired. Moorman later testified

that “to be five minutes late is not necessarily a swing factor,” but that “five to 15 minutes late

consistently when it affects other employees is a major problem.”

Moorman and several human resources personnel, including Landgraf, terminated

Wallner on the afternoon of October 15, nine days after she returned from FMLA leave.

Moorman later compiled a “document of deficiencies” that he indicated “were basically the

reasons” for Wallner’s termination. It read:

It was company policy to be at work at 8:00 AM. [Wallner] was persistently late
(5-15 minutes) even in view of repeated warnings. This created a morale problem
within the department.

She would occasionally call in the morning before work to inform us that she
would be absent from work that day. Unscheduled absences were not permit[t]ed.

She failed two (2) Series 4 (Registered Option Principal) exams. It wasn’t
required that she take the exams . . .

She had a hip replacement. I believe there was a standard allotment for
recuperation of four (4) weeks. However, in case it was required an additional
two (2) weeks could be allowed in case it was necessary. There was never any
communication from her, to my knowledge, as to when she would return to work.

In a three[-]person department, an absence involved 33% of the work force.

Options trading and surveillance are specialized and critical activities within the
daily operations of the department and can’t be adequately replaced by a worker
(next door).

An accumulation of deficiencies became intolerable.

Moorman later indicated that the “accumulation of deficiencies” referenced at the document’s

conclusion referred to “the ones that are listed in [the] document.”

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Wallner v. Hilliard Lyons

Wallner eventually filed suit against Hilliard Lyons in the district court, asserting claims

for interference and retaliation under the FMLA, proceeding on the latter claim on a single-

motive theory or, in the alternative, a mixed-motive theory. Hilliard Lyons moved for summary

judgment. The district court, construing Wallner’s FMLA interference claim as an FMLA

retaliation claim, analyzed them together and ultimately granted Hilliard Lyons’s motion in full.

Wallner appeals.

II.

Wallner contends on appeal that the district court erred in granting summary judgment

against her FMLA interference and retaliation claims. We review the district court’s summary

judgment determination de novo. Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP, 759 F.3d

522, 526 (6th Cir. 2014). Summary judgment is appropriate only 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 factual issue is genuinely in dispute if a reasonable fact-finder

could resolve it either way. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where the disputed issue of fact is material to liability, therefore, premature entry of summary

judgment inappropriately supplants the role of the fact-finder in adjudicating liability. See id. at

248–49. Denial of summary judgment where there is no genuine dispute of material fact, on the

other hand, improperly permits a claim to go to the fact-finder, even though there can be only

one possible outcome. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Anderson,

477 U.S. at 250–52. In determining “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a matter

of law,” Anderson, 477 U.S. at 251–52, the court must view the evidence and draw all reasonable

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Wallner v. Hilliard Lyons

inferences in favor of the nonmoving party. Id. at 255; Shreve v. Franklin Cnty., 743 F.3d 126,

132 (6th Cir. 2014).

III.

Wallner first argues that the district court erred in granting summary judgment against

her FMLA interference claim, primarily asserting that the district court wrongly concluded that

Wallner failed to assert any FMLA interference claim that was distinct from her FMLA

retaliation claim.

On this issue, we affirm the district court and disagree with Wallner. “There are two

theories of recovery under the FMLA: an interference (or entitlement) theory and a retaliation

(or discrimination) theory.” Hunter v. Valley View Local Sch., 579 F.3d 688, 691 (6th Cir.

2009). An interference claim stems from 29 U.S.C. § 2615(a)(1), which provides that an

employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any

right provided under [the FMLA].” Id.; see Wysong v. Dow Chem. Co., 503 F.3d 441, 446 (6th

Cir. 2007). Because an employer interferes with an employee’s exercise of FMLA rights

whenever the employee does not receive the rights that are due to her under the statute, the intent

of the employer is irrelevant to whether an FMLA violation has occurred under the interference

theory. See Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 282 (6th Cir. 2012); Arban v. West

Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003). Although an employer may defeat liability by

showing that the FMLA benefit did not accrue to the plaintiff because the plaintiff was

discharged for some other, legitimate reason, see Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th

Cir. 2012); Arban, 345 F.3d at 401, the only things that a plaintiff must show to establish an

FMLA interference claim are that she was entitled to benefits under the FMLA, notified her

employer of her intent to exercise her FMLA rights, and was denied the FMLA benefits to which

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Wallner v. Hilliard Lyons

she was entitled. See Edgar v. JAC Products, Inc., 443 F.3d 501, 507–08 (6th Cir. 2006). As

long as the plaintiff shows that she was harmed, she does not need to show that the employer

intended to retaliate against her for exercising her rights. See id.

An FMLA retaliation claim, by contrast, arises from 29 U.S.C. § 2615(a)(2), which

prohibits employers from discriminating against anyone “for opposing any practice made

unlawful by [the FMLA].” Id.; see Grace v. USCAR, 521 F.3d 655, 669 (6th Cir. 2008). We

have routinely construed this language as barring retaliation against anyone who has exercised

his rights under the FMLA. See, e.g., Bryant v. Dollar Gen. Corp., 538 F.3d 394, 400–01 (6th

Cir. 2008). Unlike in an FMLA interference claim, an employer’s motive is relevant to an

FMLA retaliation claim “because retaliation claims impose liability on employers that act against

employees specifically because those employees invoked their FMLA rights.” Edgar, 443 F.3d

at 508. Thus, an FMLA retaliation claim is established where the plaintiff shows that she availed

herself of a protected right under the FMLA, that she suffered an adverse employment action,

and that there was a causal connection between the two. Id. Again, an employer may defeat

liability by showing that it would have made the same decision anyway, even if it had not been

impermissibly motivated. See Hunter, 579 F.3d at 692.

Although our cases have sometimes asserted that the interference provision—

§ 2615(a)(1)—also prohibits “retaliatory discharge for taking leave,” this does not mean that all

claims under § 2615(a)(1) are synonymous with retaliation claims under § 2615(a)(2). Chandler

v. Specialty Tires of Am., Inc., 283 F.3d 818, 825 (6th Cir. 2002). The seminal case cited for this

proposition is Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309 (6th Cir. 2001). There, the

plaintiff alleged that he was discharged before he could take his requested FMLA leave. We

analyzed these allegations as raising a retaliation claim, on the theory that the employer could

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have been retaliating against the plaintiff for notifying it of his intent to exercise his right to

FMLA leave in the future. Id. at 314. See Seeger, 681 F.3d at 282; Weimer v. Honda of Am.

Mfg., Inc., 356 F. App’x 812, 815 (6th Cir. 2009); Wysong, 503 F.3d at 447; Arban, 345 F.3d at

403; Chandler, 283 F.3d at 825.

As in Skrjanc, of course, a single act may potentially constitute both interference and

retaliation: firing someone who has just requested FMLA leave before he can take it could be

construed both as retaliation for having asked for leave and as interference with the employee’s

ability to take it. See Skrjanc, 272 F.3d at 314. We have therefore held that “a plaintiff ha[s] not

waived a claim based on the interference theory where the complaint alleged general violations

of 29 U.S.C. § 2615 that could apply to both interference and retaliation claims.” Seeger, 681

F.3d at 282 (citation and internal quotation marks omitted) (construing Wysong, 503 F.3d at

446).

But the mere fact that two statutory provisions may both be implicated by a single act

does not mean that the two provisions are perfectly coextensive. We reiterated in Seeger the

long-standing substantive distinction between interference claims and retaliation claims. See id.

As a rule of thumb, where a plaintiff does not dispute that she has been granted all of the FMLA

leave that she requested, has received all of the leave to which she was entitled, and has been

reinstated upon her return to work, “the essence” of the plaintiff’s claim is likely a retaliation

claim, not an interference claim, regardless of the conclusory labels under which it has been pled.

Id.

Here, although Wallner’s complaint labeled a portion of her allegations as an

“interference” claim, all of the supporting allegations proceeded upon a retaliation theory

without mentioning the deprivation of any FMLA benefit to which she was entitled. This trend

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continued at summary judgment, where the district court correctly perceived that Wallner’s

theory of recovery was exclusively retaliation-oriented rather than entitlement-based. The

district court properly analyzed Wallner’s assertions as raising a retaliation claim, not an

interference one. See Seeger, 681 F.3d at 282.

Even to the extent that Wallner belatedly amplified her interference theory and now

contends that Hilliard Lyons illegally truncated her FMLA leave by depriving her of five days to

which she was entitled, she is incorrect on the merits. Wallner’s doctor determined that she was

able to return to work as of October 6, and Wallner notified Hilliard Lyons that she would do so.

The FMLA does not guarantee Wallner the right to stay at home until the 11th, despite the fact

that both she and her doctor agreed that she was able to return to work before then. See 29

U.S.C. § 2612(a)(1)(D) (guaranteeing an eligible employee up to twelve weeks of unpaid leave if

she has a “serious health condition” that made her “unable to perform the functions” of her

position); Edgar, 443 F.3d at 506. See also Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 578

(6th Cir. 2007) (“The employer may require an employee to provide a doctor’s certification

confirming the existence of a serious health condition.”) (citing 29 U.S.C. § 2613(a)). As of

October 6, therefore, Wallner was no longer entitled to FMLA leave, meaning that her

interference claim—to the extent that she ever raised one—is without merit. See also Ragsdale

v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) (noting that the FMLA “provides no relief

unless the employee has been prejudiced by the violation”); Harris v. Metro. Gov’t of Nashville

& Davidson Cnty., 594 F.3d 476, 484 (6th Cir. 2010). We therefore affirm the district court’s

judgment in favor of defendant on Wallner’s interference claim.

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IV.

Next, Wallner contends that the district court erred in entering summary judgment in

favor of defendant on her FMLA retaliation claim. We agree.

Although Wallner has pursued an FMLA retaliation claim on both single-motive and

mixed-motive theories—arguing them in the alternative—we see no need to inquire whether

Wallner has marshaled enough evidence to withstand summary judgment on a single-motive

theory. We have observed previously that the pertinent portion of the FMLA—29 U.S.C.

§ 2615(a)—prohibits an employer from using an employee’s exercise of FMLA rights as “a

negative factor” against the employee when making an employment decision. Hunter, 579 F.3d

at 692 (quoting 29 C.F.R. § 825.220(c)). Because this standard “envisions that the challenged

employment decision might also rest on other, permissible factors,” we have held that “the

FMLA, like Title VII, authorizes claims in which an employer bases an employment decision on

both permissible and impermissible factors.” Id. See also Lewis v. Humboldt Acquisition Corp.,

681 F.3d 312, 321 (6th Cir. 2012) (en banc) (declining to revisit Hunter). Because the operative

statutory language permits recovery on a mixed-motive theory, we see no reason to produce dicta

about whether Wallner possesses even more evidence than is required by the statute.

The parties agree that Wallner’s mixed-motive FMLA claim is governed by the Price

Waterhouse1 burden-shifting approach that was applied in Hunter. Under that scheme, if the

plaintiff has presented evidence to establish that her exercise of her FMLA rights “played a

motivating part in an employment decision,” then the defendant may avoid liability “only by

proving by a preponderance of the evidence that it would have made the same decision even if it

had not taken [the plaintiff’s exercise of her rights] into account.” Gross v. FBL Fin. Servs., Inc.,

1
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
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557 U.S. 167, 173–74 (2009) (distilling Price Waterhouse); Hunter, 579 F.3d at 692. Plaintiff

may rely upon either direct or circumstantial evidence to establish that defendant used her

exercise of FMLA rights against her as a negative factor in an employment action. See Desert

Palace, Inc. v. Costa, 539 U.S. 90, 99–100 (2003); Hunter, 579 F.3d at 692 n.2.

Under Hunter, we agree with Wallner that the district court erred in entering summary

judgment against her mixed-motive FMLA retaliation claim. We note, however, that this is not

because Wallner possesses direct evidence of discrimination. Although Wallner contends that

the “document of deficiencies” created by Moorman is direct evidence that Hilliard Lyons used

her FMLA leave as a negative factor in determining whether to terminate her, she overstates the

strength of her case. Contrary to Wallner’s argument, the document does not require, if believed,

“the conclusion that unlawful discrimination was at least a motivating factor in the employer’s

actions.” Demyanovich v. Cadon Plating & Coatings, LLC, 747 F.3d 419, 432 (6th Cir. 2014)

(defining “direct evidence”) (citation omitted). Although Wallner’s FMLA leave featured

prominently in Moorman’s document and certainly could be inferred as one of the accumulated

“deficiencies” that contributed to his termination decision, the document could also be read as

referencing her failure to communicate while on leave, not merely her having taken the leave in

the first place. Because the evidence requires an inferential step before it proves that unlawful

discrimination occurred, it is not direct evidence of an FMLA violation and therefore does not on

its own shift the burden to the employer “to prove by a preponderance of the evidence that it

would have made the same decision absent the impermissible motive.” Daugherty v. Sajar

Plastics, Inc., 544 F.3d 696, 707 (6th Cir. 2008) (citation omitted).

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But even though Wallner lacks direct evidence of discrimination, she has presented

circumstantial evidence of retaliation sufficient to forestall summary judgment on her claim.2

Hilliard Lyons relies on only one putatively legitimate reason for firing Wallner: her “excessive

tardiness between October 7 and October 15, 2009.” But, again, Wallner may succeed on her

FMLA retaliation claim even if multiple factors contributed to Hilliard Lyons’s decision to

discharge her; she is entitled to a jury so long as a reasonable one could find that both

permissible and impermissible factors motivated the termination decision. Hunter, 579 F.3d at

692. And on the evidence presented by Wallner, a reasonable jury could find that the decision to

terminate Wallner did not depend upon her tardiness alone. Several considerations convince us

that the district court erred when it concluded that no reasonable jury could find that Hilliard

Lyons used Wallner’s exercise of her FMLA rights as “a negative factor” when deciding to

terminate her employment. Id.

First, the district court understated the strength of the causal connection suggested by the

facts of this case. Temporal proximity between “the plaintiff’s exercise of protected rights” and

an adverse action is relevant to whether the former is causally connected to the latter. Nguyen v.

City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000); see Mickey v. Zeidler Tool & Die Co.,

516 F.3d 516, 525 (6th Cir. 2008). The district court focused on the length of time between

Wallner’s initial request to take FMLA leave in June 2009 and her discharge in October 2009,

2
Because the parties agree that the Price Waterhouse scheme should be applied to
Wallner’s mixed-motive claim, we follow Hunter in declining to decide whether to adopt in the
FMLA context the recognition in White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir.
2008), that mixed-motive plaintiffs generally do not need to resort to the McDonnell Douglas
burden-shifting scheme in order to forestall summary judgment. See Hunter, 579 F.3d at 692
n.2. We note that in none of the FMLA retaliation cases published in this circuit after Hunter
were the plaintiffs pursuing a mixed-motive theory of recovery. See Demyanovich, 747 F.3d at
432; Seeger, 681 F.3d at 283; Donald, 667 F.3d at 762.
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reasoning that most of the causal connection had evaporated during the four-month interim.

Rejecting the argument that temporal proximity should be measured from Wallner’s return from

FMLA leave until her discharge—a total of only nine days—the district court cited Skrjanc for

the proposition that “the better-reasoned approach looks instead to the date on which the

employee requests FMLA leave” in order to measure temporal proximity. But Skrjanc involved

an employee who was discharged before he was ever able to take the leave that he requested.

272 F.3d at 317. Skrjanc, not surprisingly, therefore measured temporal proximity from the only

time that the plaintiff had ever exercised his FMLA rights: the date of the plaintiff’s request for

leave. The district court erred in concluding that Skrjanc’s selection of that particular benchmark

was the product of a more nuanced rationale.

As Skrjanc in fact suggests, the causality determination should instead be informed by

what we have always advised: namely, by reference to the temporal proximity between “the

plaintiff’s exercise of protected rights” and the subsequent adverse action. Nguyen, 229 F.3d at

563. The fact that Wallner took FMLA leave rather than continue working—and the fact that

she persisted in taking FMLA leave until the earlier of (1) the end of the twelve-week statutory

allotment or (2) the abatement of her serious medical condition—was an exercise of her FMLA

rights. After all, if merely asking for FMLA leave is a protected activity, then surely actually

taking the time off is, as well. Skrjanc, 272 F.3d at 314. The temporal proximity that is relevant

to Wallner’s FMLA retaliation claim, therefore, is the length of time between when she was

absent from work on FMLA leave and when she was discharged. This was a total of nine days,

not four months. Thus, the inference of causality generated by temporal proximity is stronger

than recognized by the district court.

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Second, the “document of deficiencies” created by Moorman could reasonably be

interpreted as identifying Wallner’s FMLA-related absence as one of several reasons for her

termination. The document, which Moorman characterized as comprising essentially “the

reasons” that Wallner was discharged, described at least four separate reasons for her

termination. It concludes that “[a]n accumulation of deficiencies became intolerable.”

Although the document certainly could be read as denoting other factors (such as lapses

in communication) as reasons for Wallner’s termination, a jury could also readily conclude that

the document’s three paragraphs describing the negative impact of Wallner’s FMLA absence on

Moorman’s department were identifying her FMLA-related absence as one of the

“accumulat[ed] . . . deficiencies” that motivated her termination. In fact, Moorman later

admitted that he was irritated by Wallner’s constantly changing return-to-work date, which

prompted him to be “suspicious” that she would not return from leave when she allegedly was

required to. This suspicion was, of course, engendered by Hilliard Lyons’s own conduct, when

Landgraf communicated several erroneous return-to-work dates to Moorman without ever

notifying him of her error.

It would be reasonable for a jury to infer from this evidence that Wallner’s FMLA leave

generated ill-will toward her from Moorman, her direct supervisor, and that it factored into his

decision to terminate her. After all, Moorman’s dissatisfaction with Wallner over her failure to

return from FMLA leave when he expected her to is not far removed from his stated rationale for

ultimately terminating her—both involve her perceived unwillingness to be at work when she

was supposedly required to be there. Although Hilliard Lyons now contends that the document’s

reference to Wallner’s FMLA absence was only to indicate dissatisfaction with her failure to

communicate with her supervisors regarding her return-to-work date, Hilliard Lyons’s FMLA

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policy does not require any such communication. At most, Hilliard Lyons sent Wallner a letter

requiring her to keep it apprised of her “status and intention to return to work,” and there is no

dispute that Wallner informed Hilliard Lyons as soon as her status changed—i.e., when her

doctor cleared her for a return to work.

None of this, in any event, changes the fact that the document could reasonably be

interpreted by a jury as an admission by Moorman that Wallner was terminated partially because

of the fact that she took FMLA leave, not merely because she failed to communicate her return

date to him. On its face, the document is easily susceptible to the interpretation that Wallner’s

FMLA-related absence was one of four or five reasons motivating her discharge, and it certainly

does not support Hilliard Lyons’s argument that tardiness was the sole factor contemplated by

Moorman when he decided to fire Wallner. The document is, on its own, fairly significant

evidence that more went into Hilliard Lyons’s decision to terminate Wallner than solely her

continuance of a years-long trend of tardiness.

Hilliard Lyons nevertheless insists that no reasonable jury could conclude anything other

than that Wallner would have been fired anyway, even if her FMLA leave had not been

considered. See Gross, 557 U.S. at 173–74 (explaining the Price Waterhouse standard); Hunter,

579 F.3d at 693–94.3 We think not. Although Wallner does not dispute that she arrived late to

3
Although we do not decide whether White applies to mixed-motive FMLA claims, we
note that the typical examination of pretext, which is geared toward single-motive claims, is only
imperfectly applicable to mixed-motive cases. See White, 533 F.3d at 400–02. In a mixed-
motive case, even if the employer’s FMLA-neutral reason did have a basis in fact, did motivate
the employer’s action, and was sufficient on its own to motivate the employer’s action, see Chen
v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009) (stating the generic pretext standards), a
mixed-motive FMLA plaintiff may still withstand summary judgment so long as her exercise of
her FMLA rights also contributed to the employer’s action. See Hunter, 579 F.3d at 692.
Because a mixed-motive plaintiff does not need to disprove the employer’s stated reason for the
adverse employment action but must show only that it was not the only reason for the employer’s
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work on five of the seven days after her return from FMLA leave, a jury could reasonably find

that Hilliard Lyons is overstating how seriously it viewed her late arrivals. Notably, Moorman

himself did not keep any records of Wallner’s arrival times, despite the fact that human resources

personnel had instructed him to do so if her tardiness was a problem. According to the

contemporaneous estimates kept by Wallner’s co-worker Dunning, Wallner arrived at 8:05, 8:02,

8:06, 8:09, and 8:05 a.m. on the five days in question. But neither Landgraf nor Moorman

claims to have received Dunning’s estimates prior to Wallner’s termination, meaning that

Wallner ostensibly was fired for tardiness without reliance upon any actual record of how often

or how late she arrived. Further, video footage later established that Wallner actually entered the

building on the days in question earlier than Dunning claimed she did—at 8:04:37, 8:01:41,

8:05:04, 8:08:55, and 8:02:52, respectively. Despite the fact that Hilliard Lyons claims that this

is proof positive that Wallner needed to be fired, Moorman himself testified that “to be five

minutes late is not necessarily a swing factor; five to 15 minutes late consistently when it affects

other employees is a major problem.” According to Hilliard Lyons’s own evidence, Wallner was

more than five minutes late on only two days during the time in question—exceeding

Moorman’s cut-off once by five minutes and once by four seconds. She did not exceed the five-

minute acceptable limit on the day that Moorman decided to fire her. Although Hilliard Lyons

certainly could have fired Wallner for arriving late to work (or for any other legal reason, for that

conduct, the traditional pretext analysis can be grafted only imperfectly upon a mixed-motive
claim. See White, 533 F.3d at 400–02. See also Hollis v. Chestnut Bend Homeowners Ass’n,
760 F.3d 531, 539 (6th Cir. 2014) (noting that the McDonnell Douglas test reflects “an effort to
zero in on the specific intent underlying the defendant’s conduct” and rejecting its application to
disparate-impact claims); Smith v. Xerox Corp., 602 F.3d 320, 326 (5th Cir. 2010) (noting that
McDonnell Douglas is not perfectly compatible with mixed-motive analysis, as it is intended to
“discern[ ] . . . the true reason for the employer’s action”), abrogated on other grounds by Univ.
of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).
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matter), a jury weighing these facts could well be suspicious of the argument that Wallner’s

tardiness was the only reason that she was fired.

Moreover, despite Hilliard Lyons’s assertion that Wallner was “chronically” late for

work, the evidence on this is thin, consisting mainly of Moorman’s assertion that he had verbally

warned Wallner about it for years. Wallner’s recent performance evaluations, for example, made

no mention of chronic tardiness. But even assuming that Wallner’s tardiness did contribute to

the ultimate decision, the timing is suspicious. If she had been chronically late for twenty-seven

years, why fire her only now? Why did her co-worker begin chronicling Wallner’s arrival times

only on the very morning that she returned to work from FMLA leave? Why did Wallner

receive a “final” written warning on the day she returned from FMLA leave for conduct

indisputably associated with her assertion of FMLA rights when the reprimand was not

consistent with protocol, which required an intermediate written warning prior to a “final”

written warning? Of the possible competing explanations, it would not be unreasonable for a

jury to select the one that Wallner urges: that, particularly in light of Moorman’s “document of

deficiencies,” Hilliard Lyons’s conduct was at least partially responsive to her decision to take

FMLA leave and the significant conflict over her correct return-to-work date that erupted while

she was exercising her statutorily protected rights.

Of course, this is not to say that Hilliard Lyons must necessarily be disbelieved when it

argues that Wallner’s decision to take FMLA leave, despite Hilliard Lyons’s repeated attempts to

compel her to return before she was required to, had nothing to do with her termination nine days

after she returned. Hilliard Lyons is free to make that argument to a jury. But, as indicated, we

do not agree with Hilliard Lyons that a jury would necessarily be unreasonable if it failed to

accept Hilliard Lyons’s version of events. A reasonable jury could find that Wallner’s exercise

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of her FMLA rights may have been a motivating factor in Hilliard Lyons’s decision to terminate

her. See Gross, 557 U.S. at 173–74; Hunter, 579 F.3d at 693–94. That is all that is required for

Wallner to defeat summary judgment on her FMLA retaliation claim, and the district court erred

in concluding otherwise. See Desert Palace, 539 U.S. at 101; Hunter, 579 F.3d at 692.

V.

For these reasons, we affirm the entry of summary judgment against Wallner’s FMLA

interference claim, reverse the entry of judgment against her FMLA retaliation claim, and

remand for further proceedings consistent with this opinion.

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ROGERS, Circuit Judge, dissenting. Essentially for the reasons given in Judge

Simpson’s opinion below, I would affirm the judgment of the district court.

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