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Cuellar v. Keppel Amfels, L.L.C.
Citations: 731 F.3d 342; 21 Wage & Hour Cas.2d (BNA) 189; 2013 U.S. App. LEXIS 18735; 97 Empl. Prac. Dec. (CCH) 44,905; 2013 WL 4789847Docket: No. 12-40165
Court: Court of Appeals for the Fifth Circuit; September 9, 2013; Federal Appellate Court
Jessica Cuellar has alleged that her secondary employer, Keppel Amfels, L.L.C., violated the Family Medical Leave Act (FMLA) by dissuading her primary employer, Perma-Temp Personnel Services, Inc., from reinstating her after her maternity leave. The district court ruled in favor of Keppel Amfels, concluding that Cuellar did not present a genuine issue of material fact, resulting in an affirmation of the summary judgment. Keppel Amfels operates in the offshore drilling and marine vessel repair industry and relies heavily on staffing agencies, such as Perma-Temp, to fill approximately half of its local positions. Although these positions are labeled as 'temporary,' some last for years. Cuellar was hired for a Material Information Clerk position in June 2007. After notifying both Keppel Amfels and Perma-Temp of her need for medical leave due to childbirth, Cuellar went into pre-term labor. On the same day she informed Keppel Amfels of her hospitalization, her supervisor requested a replacement, citing her maternity leave as a reason for the temporary staffing need. Geralyn Perez, the daughter of a project manager at Keppel, was subsequently hired to fill Cuellar's position. Cuellar asserts that three days into her maternity leave, she was informed through Perma-Temp's database that Keppel Amfels had terminated her assignment, though the human resources representative, Ben Sandoval, could not recall making such a call and disputed the terminology used. Despite Cuellar being eligible for rehire, no position was held for her, and upon inquiring about her job after her leave, she was told by Sandoval that the company was managing without her and would reach out if a new opening arose. Cuellar contacted Perma-Temp after a conversation with Sandoval, during which a Perma-Temp employee allegedly advised her to apply for unemployment benefits. Perma-Temp did not facilitate her reinstatement to her position at Keppel Amfels. Cuellar subsequently sued Keppel Amfels, claiming that it (1) interfered with her FMLA rights by persuading Perma-Temp not to reinstate her, violating 29 U.S.C. § 2615(a)(1), and (2) retaliated against her for exercising her FMLA rights, violating 29 U.S.C. § 2615(a)(2). The district court analyzed both claims under the McDonnell Douglas burden-shifting framework, determining that while Cuellar established a prima facie case, there was insufficient evidence to support claims of discriminatory intent in her termination. Consequently, the court granted summary judgment in favor of Keppel Amfels, dismissing Cuellar’s claims with prejudice. Cuellar's appeal focuses solely on the dismissal of her interference claim under 29 U.S.C. § 2615(a)(1). The appellate review of summary judgment is conducted de novo, assessing whether there is any genuine dispute over material facts. The FMLA allows eligible employees to take up to twelve weeks of leave for specific medical reasons and mandates reinstatement to the same or a comparable position upon return. Joint employers under the FMLA may have different responsibilities based on their roles; Perma-Temp was identified as Cuellar’s primary employer, responsible for FMLA leave, while Keppel Amfels was the secondary employer. Job restoration primarily falls under the responsibility of the primary employer, as outlined in § 825.106(e). The secondary employer has a conditional obligation to accept an employee returning from FMLA leave only if it continues to employ individuals from a temporary placement agency that chooses to place that employee with them. However, secondary employers also have independent responsibilities under the FMLA, particularly concerning compliance with provisions that prohibit interference and discrimination against jointly employed employees. Specifically, under 29 U.S.C. § 2615, it is unlawful for employers to interfere with employees’ rights or to discriminate against those opposing unlawful practices, which includes discouraging the use of FMLA leave. The regulations stipulate that the secondary employer must not only accept returning employees but also refrain from interfering with the primary employer’s efforts to restore those employees to their positions. The secondary employer must adhere to FMLA prohibitions, including not obstructing the restoration process. In this context, the case of Cuellar against her secondary employer, Keppel Amfels, centers on allegations that Keppel Amfels discouraged the primary employer, Perma-Temp, from reinstating Cuellar after her maternity leave. The district court dismissed her claim, citing a lack of evidence for discriminatory intent. On appeal, the key issues are whether intent is necessary to prove a violation under 29 U.S.C. § 2615(a)(1) and whether Cuellar can present a genuine issue of material fact regarding her interference claim, with the appeal assuming, for argument's sake, that intent is not required. To establish a claim under 29 U.S.C. § 2615(a)(1), Cuellar must demonstrate that Keppel Amfels interfered with her Family and Medical Leave Act (FMLA) rights and that this interference caused her prejudice. Cuellar argues that Keppel Amfels' actions led both her and Perma-Temp to believe reinstatement was unlikely, noting that Perma-Temp typically did not refer workers back without a request from Keppel Amfels, which had the authority to determine her employment status. Cuellar contends that her replacement and the communication of her termination prevented her from fully exercising her right to reinstatement. Keppel Amfels counters that these actions do not qualify as 'interference' under the FMLA, particularly as the regulations allow a secondary employer to rely on a primary employer regarding FMLA leave. The regulation 29 C.F.R. § 825.106(e) states that the primary employer holds the responsibility for job restoration, and a secondary employer's obligation to reinstate an employee is contingent upon the primary employer initiating a request for reinstatement. Therefore, Keppel Amfels was within its rights to replace Cuellar temporarily and had no duty to reinstate her without such a request from Perma-Temp. The court agrees with Keppel Amfels, indicating that holding it liable would mischaracterize its role as a primary employer and create an employment relationship that did not exist before Cuellar’s leave. The FMLA stipulates that an employee is not entitled to a position they would not have held if leave had not been taken. Cuellar's argument that Moore Wallace should directly reinstate her, regardless of RAS’s consent, would necessitate creating a new employment relationship contrary to the statute's language. Cuellar's claim against Keppel Amfels fails due to her inability to establish that the company's actions exceeded the permissible limits set by the FMLA statutory and regulatory provisions. The court affirmed this conclusion and also upheld the district court's denial of Cuellar's cross motion for summary judgment regarding her interference and retaliation claims. Cuellar did not contest several key findings by the district court: (1) her joint employment status, with Perma-Temp as the primary employer and Keppel Amfels as secondary; (2) Keppel Amfels's lack of liability for failing to reinstate her position, as Perma-Temp did not refer her back after her maternity leave; and (3) the absence of discriminatory intent by Keppel Amfels. Additionally, the court addressed Keppel Amfels's argument that Cuellar waived her right to appeal due to improper citation of an Addendum of Undisputed Facts. The court found that, although her citation method was technically incorrect, it did not constitute waiver since the underlying evidence was still identifiable in the record. Cuellar argued that Perma-Temp believed she could return to Keppel Amfels until being informed by Sandoval, a Keppel Amfels employee, that her assignment was over, leading to the interpretation that a new application was necessary for reinstatement. Cuellar claimed Keppel Amfels confirmed this understanding by stating that her position had been filled.