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Ion v. Chevron USA, Inc., No. 12-60682 (5th Cir. Sept. 26, 2013)

The Fifth Circuit holds that an unstrung father struggling with child care deserves a jury trial (for FMLA retaliation) against a slew of reasons offered by Chevron for his termination. This case may also prove useful for Title VII litigants. Under that statute, a plaintiff who proves that discrimination was a "motivating factor" in workplace treatment gets a judgment in her favor. Yet an employer that proves that it "would have taken the same action in the absence" of discrimination can avoid paying monetary damages. Courts have reported very few decisions interpreting this "same decision" defense. Here, the Fifth Circuit holds that evidence that would otherwise be sufficient to prevail in a "single motive" case is not necessarily enough to win the day under "same decision."

Ion v. Chevron USA, Inc., No. 12-60682 (5th Cir. Sept. 26, 2013): The employee, Ion, alleged the following facts in opposition to summary judgment.

Ion worked as a chemist for Chevron in Pascagoula, Mississippi. A divorce drove him apart from his five-year-old child, whose mother decamped for Kentucky. Chevron offered leave for "employee[s] going through 'a life-changing event' like a divorce." While there is a dispute between witnesses in the record on this point, Ion stated that - in February 2009 - he asked and received permission for intermittent leave (such as on lunch breaks) during a six-month period when he had custody of the child. When Ion attempted to formalize the agreement, though, his supervisor put him off for five weeks.

In March 2009, Ion was suspended five days for asserted "performance deficiencies and the excessive length of his lunch breaks"; he was also put on a performance improvement plan (PIP/AIP). Yet there was evidence in the record that these deficiencies had not previously been brought to Ion's attention, and that other employees took equally long breaks.

While on suspension, Ion got in contact with Chevron's Employee Assistance Program (EAP), which provides mental and emotional health counseling. Their staff recommended FMLA leave for a serious condition related to child-raising ("too much stress-can't focus on his job-single parent"). Ion did not report back to work after his suspension, but called in sick while weighing the options of leave or short-term disability.

Complicating matters, on March 25, 2009, Ion had an altercation with Chevron nursing personnel when he visited the clinic to register for FMLA, failing (by his account) to get a coherent explanation of the paperwork. The nurses allegedly were requiring Ion to sign a medical release form (a "GO-153") without explaining why it was necessary. Security had to be called to assess the situation, and Ion was banned from the property.

Ion was fired the same day, a decision bolstered by information from Ion's work colleague that Ion supposedly admitted to a scheme to fake a mental disorder to avoid work and receive benefits. He was given a letter that supposedly stated all of the reasons that he was terminated.

The district court - and Fifth Circuit as well - held that Ion presented sufficient evidence for a jury to find that Chevron's termination decision was motivated by hostility against his taking FMLA leave. The termination letter itself stated that "[y]ou haven't returned to work since your suspension," and an email by one of the decision makers (named Meltcher) complained that "I assume the 'paperwork for short-term disability' comment means that he is looking for a doctor to give him some FMLA-qualified time off," and that they should look for "options."

Nevertheless, the district court believed that the panoply of reasons offered by Chevron for firing Ion (absenteeism, poor performance, the alleged "faking" of an illness, and his blow-up at the nurses) was enough - as a matter of law - to justify his termination.

The Fifth Circuit holds that it is for a jury to decide whether this alleged misbehavior would have led to his termination, absent the discriminatory motive. (Curiously, although there is doubt in the wake of University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), whether a mixed-motive analysis applies to FMLA claims, neither party pressed this issue on appeal, and it was deemed waived.)

A jury could find, for instance, that the absenteeism record was enough to get him suspended but not fired. Observes the court:

"Chevron's claim that it would have fired him based on his absences and poor performance is disingenuous and contradicted by the evidence. Chevron had the opportunity to fire Ion based on these deficiencies and chose not to do so. As discipline, Chevron elected to suspend Ion for five days and place him on a PIP/AIP. "

Chevron's other evidence, meanwhile, was equivocal or unexamined by the decision-makers, casting in doubt whether they reasonably believed the reasons:

"Chevron's evidence that Ion was faking FMLA leave is also insufficient because of the doubts raised by Chevron's failure to investigate and Melcher's e-mail. Finally, Chevron's evidence that Ion had been abusive during the clinic incident is insufficient because it was not mentioned in Ion's termination letter, the accounts of the clinic incident are vague and nondescript, and Chevron has failed to establish as a matter of law that its concerns about the clinic incident were not related to Ion's refusal to sign the GO-153 form."

The lesson to draw from this case: the indulgent perspective that courts accord employer explanations for decisions in typical employment disputes does not migrate into the "same decision" defense, where the employer itself bears the burden of proof.

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