John Besser v. Texas General Land Office ( 2020 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 3, 2020
No. 18-50291
Lyle W. Cayce
Clerk
JOHN BESSER,
Plaintiff - Appellant
v.
TEXAS GENERAL LAND OFFICE; COMMISSIONER GEORGE
PRESCOTT BUSH, in his official capacity; KELLY L. MCBRIDE, in her
individual capacity; ANNE IDSAL; KALANI HAWKS,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CV-1010
Before OWEN, Chief Judge, and WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
John Besser, a former employee of the Texas General Land Office (GLO),
sued the GLO and various individuals under the Family & Medical Leave Act
and the Americans With Disabilities Act, alleging discrimination and
retaliation when he used leave to care for his infirm husband. The district
*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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court dismissed the claims for failure to state a cause of action. We affirm the
district court’s judgment.
I
We set forth the facts as alleged in the complaint and accept them as
true, as we are required to do at the motion-to-dismiss stage.1 In March 2016,
John Besser began working with the Texas General Land Office (GLO) as a
contract manager. Kelly McBride was the director of the Contracts
Department at the GLO, which meant that she coordinated all trainings and
approved all leave time within the department. McBride supervised the team
leader and contract managers on Besser’s team. In May 2016, McBride asked
Besser to join a team with responsibility for contracts related to the
preservation and maintenance of the Alamo. Besser’s new team consisted of
three contract managers and Kerry Danieli, the “Team Lead.” On June 13,
2016, Besser’s husband, Gregg Dodson, suffered a heart attack. Dodson was
taken to the ER and the ICU. Besser texted McBride to let her know what had
happened and that he would need to be away from work for the rest of the week
because of the medical emergency. At the time of Dodson’s heart attack, Besser
had worked for the state of Texas for at least a year and had worked for more
than 1,250 hours during the past year, making him eligible for Family &
Medical Leave Act (FMLA) leave.
On June 29, Dodson’s cardiologist certified Besser’s need for FMLA leave
to care for his husband. He certified the duration of the condition as “chronic,”
he retroactively stated that Dodson would be incapacitated through June 24,
and said that Dodson would need rehabilitation therapy for 12 weeks, as well
as follow-up evaluations every 3-6 months thereafter. Besser intended to assist
with Dodson’s care. Dodson’s diagnosed heart conditions qualified as a serious
1 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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health condition under the FMLA as well as a disability under the Americans
With Disabilities Act (ADA).
During the week of June 20, Besser arrived at work late so that he could
provide caregiver services to Dodson in the mornings. On June 24, Danieli said
to Besser that “it must be nice to come in late.” When Besser explained that
the situation was serious because his husband had suffered a heart attack,
“Danieli became defensive and claimed she was only joking.” Besser reported
this interaction to McBride.
On July 1, 2016, a “skeleton crew” was scheduled to work at the GLO.
“Skeleton crew” refers to having minimal operational staff working on a given
day due to the day’s proximity to a major holiday. McBride had told her
employees that if they did not work the first skeleton day of the year, just
before Memorial Day, they should “feel obligated” to work the second skeleton
day on July 1, although it was not a requirement. Besser had anticipated
working on July 1, but because he had to be home to care for Dodson, he was
no longer available to work. On June 30, Besser told Danieli he would not be
able to work the following day. She “rolled her eyes and asked him how long
he was going to ‘milk this’ situation.” Besser again reported this incident to
McBride.
In mid-July, Besser emailed McBride asking to use annual leave to take
off August 12, and August 15, 2016. Besser wished to be present at home when
Dodson had family members visiting on those days. McBride approved his
request. When Besser updated the group calendar to show the dates he would
be away, Danieli came into Besser’s office and berated him. She said that
Besser was “always off,” that his “priority should be the GLO,” and that Besser
was “taking advantage” of his husband’s illness. Other employees were able to
hear Danieli yelling at Besser. Besser asked Danieli to leave his office. When
she would not, he said he would leave instead, which Danieli said she would
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consider an act of insubordination. When a few other employees came by to
see what was happening, Danieli left Besser’s office. After this incident, Besser
texted McBride telling her what had transpired and advising that he intended
to report Danieli to the Human Resources Department (HR). McBride texted
back, asking Besser not to report Danieli because she would be fired if he did.
Besser did not report the altercation, but another staff member who overheard
Danieli did report the incident to HR. Over the next two days, Besser spoke
with two members of HR to discuss Danieli. Several days later, McBride
brought the three contract managers into a conference room to let them know
that Danieli was no longer working at the GLO. McBride “went on her own
tirade,” expressing how upset she was that Danieli was gone and “slamming
her fist on the table in anger at one point.” McBride told them that if she heard
any of them talking about Danieli’s departure from the GLO, they would be
fired.
After the meeting, McBride “made the work environment especially
stressful,” acting in an “unprofessional, cold, curt” manner. All three contract
managers found the work environment unpleasant and discussed among
themselves the prospect of looking for other jobs.
In August, the contract managers were told that Lance White would
become their new team leader. Shortly after White started, he asked Besser
why one of the contract managers had texted White to tell him that she would
be a few minutes late to work. Besser explained that the contract managers
had been “walking on eggshells” since the investigation and Danieli’s
departure, and the other contract manager was likely “just making sure she
protected her job.” White apparently told McBride about the conversation
because two days later, “McBride entered Besser’s office, closed the door, and
went into another tirade, with a side of paranoia,” suggesting that Besser had
discussed her with other employees. Besser told her that he did not know what
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she was referring to. Besser then told McBride that the stressful work
environment had started when Danieli was dismissed, at which point,
“McBride very much lost her temper” and accused Besser of reporting Danieli’s
behavior and causing her termination. Before McBride left Besser’s office, she
told him that he had crossed a line and he had better “watch [him]self.”
In September, one of the other two contract managers on the team gave
notice that she would be leaving the GLO. Shortly thereafter, McBride met
with the remaining staff members and told them that the other contract
manager had also resigned. Once the meeting was over, McBride asked Besser
and White to stay behind. McBride then went into another “tirade” about
Besser, accusing him of causing the other two contract managers to leave. She
also said that Besser had “messed everything up,” he was disloyal to the
agency, and she “didn’t know if she could work with him anymore.” The next
day, Besser filed a complaint with HR against McBride. Three days after that,
Besser met with someone from HR to discuss the complaint. They discussed
transfer options to resolve the issue. The following day, Besser met with the
GLO Ombudsman to explain what had happened. The Ombudsman said he
would look into it and get back to Besser, which he never did. About a week
later, Besser again met with a member of HR, who had determined that Besser
had not been subjected to a hostile working environment. On November 4,
2016, Kilani Hawks, the HR director, delivered a termination letter to Besser.
Hawks verbally cited to discord between McBride and Besser as the reason for
the termination.
Besser timely filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (EEOC) and it eventually issued a
Notice of Right to Sue. Besser sued in the United States District Court for the
Western District of Texas, alleging violations of the FMLA and the ADA.
Besser initially sued the GLO, George Prescott, head of the GLO, and McBride.
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Besser later added Hawks and Anne Idsal, the Chief Clerk of the GLO, as
defendants in his amended complaint. Defendants filed a motion to dismiss,
which the district court granted. The district court held that Besser “fail[ed]
to allege facts showing a causal relationship between activities protected by
the FMLA and ADA and his termination,” and therefore Besser had failed to
state a claim upon which relief could be granted.2 Besser appeals.
II
We review a district court’s grant of a motion to dismiss de novo, applying
the same standard on review as that applied by the district court.3 In order to
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” 4 A
plaintiff’s “[f]actual allegations must be enough to raise a right to relief above
the speculative level.”5 Although we are bound to accept plaintiff’s factual
allegations as true, “we do not credit conclusory allegations or allegations that
merely restate the legal elements of a claim.”6 A plaintiff is not entitled to
relief when “the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct.”7 Employment discrimination cases do not
call for a heightened pleading standard.8
As an initial matter, Besser argues that the district court erred when it
required him to establish or “prove” a prima facie case to defeat the GLO’s
12(b)(6) motion. While Besser is correct that an employment discrimination
plaintiff “need not plead a prima facie case of discrimination” in order to
2Besser v. Tex. Gen. Land Off., No. A-17-CV-1010-SS, 2018 WL 1353936, at *6 (W.D.
Tex. Mar. 15, 2018).
3 See Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).
4 Twombly, 550 U.S. at 570.
5 Id. at 555.
6 Chhim v. Univ. of Tex., 836 F.3d 467, 469 (5th Cir. 2016) (citing Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)).
7 Iqbal, 556 U.S. at 679.
8 See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 514-15 (2002).
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survive a motion to dismiss,9 we have held that a plaintiff still must “plead
sufficient facts on all of the ultimate elements of a disparate treatment claim
to make his case plausible.”10 Accordingly, we have reasoned that “[t]he prima
facie standard nonetheless has some relevance at the motion-to-dismiss
stage.”11 The district court used the correct legal standard for a motion to
dismiss. Moreover, the district court did not hold that Besser had not proved
each element of a prima facie case of discrimination, rather it used the
language of a prima facie case as a framing device to determine whether Besser
had sufficiently alleged facts to support the ultimate elements of each claim.
The district court’s references to a prima facie case were appropriate.
III
Besser argues that the district court erred when it dismissed his FMLA
retaliation claim. The FMLA entitles an eligible employee to twelve weeks of
leave during any twelve-month period “[i]n order to care for the spouse . . . if
such spouse . . . has a serious health condition.”12 Further, the FMLA makes
it “unlawful for any employer to interfere with, restrain, or deny the exercise
of or the attempt to exercise, any right provided under [the FMLA].” 13 An
employer also may not “discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful by [the FMLA].”14
Retaliation claims under the FMLA without direct evidence of discrimination
9 Id. at 515; see also Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013)
(“Inasmuch as the district court required [the appellant] to make a showing of each prong of
the prima facie test for disparate treatment at the pleading stage, the district court erred by
improperly substituting an ‘evidentiary standard’ for a ‘pleading requirement.’”).
10 Chhim, 836 F.3d at 470.
11 Jenkins v. La. Workforce Comm’n, 713 F. App’x 242, 244 (5th Cir. 2017) (per curiam)
(citing Chhim, 836 F.3d at 470).
12 29 U.S.C. § 2612(a)(1)(C).
13 Id. § 2615(a)(1).
14 Id. § 2615(a)(2).
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are analyzed under the McDonnell Douglas burden-shifting framework.15 As
we have noted, an employment discrimination plaintiff does not need to plead
a prima facie case of discrimination, but we have said that “this court may
consider the McDonnell Douglas framework, and no plaintiff is exempt from
[his] obligation to ‘allege facts sufficient to state all the elements of [his]
claim.’”16 An employee may show a prima facie case by establishing: “(1) [he]
engaged in protected activity; (2) the employer took a materially adverse action
against [him]; and (3) a causal link exists between [his] protected activity and
the adverse action.”17 The employee “does not have to show that the protected
activity is the only cause of [his] termination,” however he is “required to show
that the protected activity and the adverse employment action are not
completely unrelated.”18
A
Besser claims that he was entitled to FMLA protection because he took
FMLA leave, complained about Danieli’s hostility toward his use of FMLA
leave, and he filed a complaint against McBride.
We agree with the district court that “[Besser] sufficiently pleads he was
entitled to FMLA leave to survive a motion to dismiss as he alleges he took
leave on four occasions in the summer of 2016 to care for his spouse, who had
a serious health condition” and therefore engaged in protected activity. 19 In
his complaint, Besser states that Dodson’s cardiologist certified Besser’s need
for FMLA leave to care for his husband. Besser’s most recent use of leave was
15 Wheat v. Fla. Par. Juv. Just. Comm’n, 811 F.3d 702, 705 (5th Cir. 2016) (citing
Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999)).
16 Puente v. Ridge, 324 F. App’x, 423, 427-28 (5th Cir. 2009) (unpublished) (quoting
Mitchell v. Crescent River Port Pilots Ass’n, 265 F. App’x 363, 370 (5th Cir. 2008) (per
curiam)).
17 Wheat, 811 F.3d at 705.
18 Mauder v. Metro. Transit Auth., 446 F.3d 574, 583 (5th Cir. 2006).
19 Besser v. Tex. Gen. Land Off., No. A-17-CV-1010-SS, 2018 WL 1353936, at *4 (W.D.
Tex. Mar. 15, 2018).
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on August 15, 2016 when he took a day off to help care for Dodson. Although
defendants argued below that Besser’s latter two absences were not entitled to
FMLA protection, we agree with the district court that “[w]hether each of
[Besser’s] absences qualifies as protected FMLA leave is a fact issue better
addressed by a motion for summary judgment or at trial.”20 Accordingly, we
treat all four instances of leave as protected activity.
Besser argues that his responses to Danieli’s comments constituted
FMLA-protected activity, as did his complaint against McBride “based on her
pervasive abuse and threats of termination occasioned by her belief [Besser]
turned in Danieli, caused Danieli to be fired, and ‘messed everything up.’” We
disagree. “The FMLA bars an employer only from retaliating against an
employee for engaging in conduct[] protected by the Act.”21 Complaints about
an employer’s actions that are not unlawful under the FMLA cannot form the
basis of a retaliation claim.22
This court has held that “comments are evidence of discrimination only
if they are ‘1) related to the protected class of persons of which the plaintiff is
a member; 2) proximate in time to the complained-of adverse employment
decision; 3) made by an individual with authority over the employment
decision at issue; and 4) related to the employment decision at issue.’”23
Comments by co-workers may also be circumstantial evidence of
discrimination when they “demonstrate discriminatory animus and . . . [are]
made by a person primarily responsible for the adverse employment action or
20 Id. at *4 n.2.
21 Harrelson v. Lufkin Indus., Inc., 614 F. App’x 761, 764 (5th Cir. 2015) (per curiam)
(citing 29 U.S.C. § 2615(a)).
22 Id.
23 Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010) (quoting
Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 400-01 (5th Cir.2000)); see also
Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 475 (5th Cir. 2015).
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by a person with influence or leverage over the formal decisionmaker.”24
Besser has not alleged that Danieli had any authority over the decision to
terminate him or that Danieli had influence or leverage over anyone with the
power to terminate Besser. At the time that Besser was terminated, Danieli
was no longer employed by the GLO. Further, the complaint did not suggest
any conversations or communication between Danieli and McBride or anyone
in HR that would be indicative of leverage or influence over Besser’s
termination. Because Danieli’s comments were not evidence of discrimination
under the FMLA, Besser’s opposition to those comments cannot be considered
FMLA-protected activity.
Besser cites to this court’s decision in Zamora v. City of Houston, arguing
that a “cat’s paw theory” should apply here.25 Under a cat’s paw theory, the
“plaintiff must establish that the person with a retaliatory motive somehow
influenced the decisionmaker to take the retaliatory action.”26 In other words,
“a plaintiff must show that the person with retaliatory animus used the
decisionmaker to bring about the intended retaliatory action.”27 Besser has
not alleged facts suggesting that Danieli had any influence over McBride or
HR’s decision to terminate Besser. Furthermore, Danieli was no longer
employed by the GLO by the time Besser was terminated. The cat’s paw theory
does not apply. In any event, Besser has forfeited this argument by failing to
present it to the district court.28
Nor has Besser alleged that McBride harbored any animus towards his
exercise of his FMLA rights. Although Besser was fired shortly after he
24 Laxton v. Gap Inc., 333 F.3d 572, 583 (5th Cir. 2003) (first citing Russell v. McKinney
Hosp. Venture, 235 F.3d 219, 225 (5th Cir. 2000); and then citing Sandstad v. CB Richard
Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002)).
25 798 F.3d 326, 331 (5th Cir. 2015).
26 Id.
27 Id.
28 Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 257 n.15 (5th Cir. 1997).
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complained about McBride’s behavior, McBride’s behavior was not related to
Besser’s use of FMLA leave. By Besser’s own account, McBride was angry
about Danieli’s termination and Besser’s decision to discuss her termination
despite McBride’s instruction not to do so. Besser also contacted McBride on
several occasions about his use of leave, and he does not allege that she
expressed any frustration or animus when he requested time off. Besser has
failed to allege sufficiently that McBride engaged in any activity that was
unlawful under the FMLA, and therefore his complaint against her was not
protected activity. Besser’s protected activity is limited to his four uses of
leave.
B
We agree with the district court that the GLO took a materially adverse
action against Besser when it terminated his employment, and that Besser did
not allege that he suffered any other adverse employment action.
C
Finally, Besser argues that the temporal proximity of his FMLA leave
and his termination shows a causal link sufficient to survive a motion to
dismiss. “When evaluating whether the adverse employment action was
causally related to the FMLA protection, the court shall consider the ‘temporal
proximity’ between the FMLA leave, and the termination.”29 The Supreme
Court has acknowledged that when the temporal proximity is “very close,”
proximity alone suffices to establish causation in a prima facie case of
retaliation.30
Accepting as true that Besser last took FMLA leave on August 15, 2016,
he was terminated approximately two-and-a-half months later on November 4,
29 Mauder v. Metro. Transit Auth., 446 F.3d 574, 583 (5th Cir. 2006).
30 Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001).
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2016. The district court held that “the temporal proximity is not close enough
to establish a causal link by itself.”31 The district court based its holding on
Amsel v. Texas Water Development Board, in which we held in an unpublished
opinion that a two-and-a-half-month gap between the plaintiff’s use of leave
and his dismissal “is not, by itself, enough to show a causal connection based
upon temporal proximity alone,”32 as well as a district court case with a similar
holding.33
There is some tension among unpublished decisions of our court as to
when temporal proximity, standing alone, is sufficient to allow an inference of
causation at summary judgment.34 In Evans v. City of Houston, this court
noted that “a time lapse of up to four months has been found sufficient to
satisfy the causal connection for summary judgment purposes.”35 However, we
cited only two district court decisions,36 and the time period at issue in Evans
was five days.37 That is not binding, or even persuasive, precedent that two
and one-half months is sufficient.
The United States Supreme Court has favorably cited a decision holding
that three months is not within the “very close” requirement.38 We conclude
that two and one-half months between the protected activity and the adverse
31 Besser v. Tex. Gen. Land Off., No. A-17-CV-1010-SS, 2018 WL 1353936, at *5 (W.D.
Tex. Mar. 15, 2018).
32 Amsel v. Tex. Water Dev. Bd., 464 F. App’x 395, 401-02 (5th Cir. 2012) (per curiam).
33 Potts v. United Parcel Serv., No. 3:11-CV-2407-L, 2013 WL 4483080, at *13-14 (N.D.
Tex. Aug. 22, 2013).
34 See Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 948-49
(5th Cir. 2015) (acknowledging that “this court has accepted a two-and-a-half-month gap as
sufficiently close in one case, and rejected nearly the same timeframe in another”).
35 246 F.3d 344, 354 (5th Cir. 2001) (quoting Weeks v. NationsBank, N.A., No. CIV.A.
3:98-CV-1352M, 2000 WL 341257, at *3 (N.D. Tex. Mar. 30, 2000)).
36 Id. (first citing Weeks, 2000 WL 341257, at *3; and then citing Garrett v. Constar,
Inc., No. CIV.A. 397-CV-2575, 1999 WL 354239, at *3 (N.D. Tex. May 25, 1999)).
37 Id.
38 See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citing Richmond
v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (concluding that a three-month period
was insufficient)).
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employment decision, standing alone, is not within the “very close” proximity
that is necessary to establish causation.
Besser also argues that Danieli’s “improper comments” about his use of
leave and McBride’s animosity support an inference that he was terminated
for exercising his FMLA-protected rights, explaining that he “alleged facts
plausibly describing a causal link between his termination . . . , his objection
to Danieli’s behavior, and McBride’s systematic pattern of animus and
retaliation after Danieli was fired.” The district court held these facts
insufficient to support an inference of causation. We agree. As we have
already noted, Besser has not alleged that Danieli had any authority over the
decision to fire him, or that she had any influence over those who did have that
power. Therefore, her comments alone cannot provide the causal link between
Besser’s use of FMLA leave and his termination.
Besser’s argument that McBride’s behavior towards him provides a
causal link similarly fails. Besser has not sufficiently pled that McBride’s
animosity was directed towards his use of leave. When Besser contacted
McBride about taking leave, he does not allege that she expressed displeasure.
Nor does he contend that McBride specifically mentioned his use of leave. As
the district court noted, the complaint suggests that McBride treated all three
contract managers equally badly, even insinuating that McBride’s behavior
caused the other two contract managers to leave the GLO. Nothing in the
complaint suggests that the other contract managers used FMLA leave, so
Besser was treated the same as employees who had not used or requested
FMLA leave. It was only after Besser spoke with White that McBride targeted
him, but Besser does not allege that her anger at that point was related to his
use of leave. At a later meeting McBride accused Besser of causing the other
two contract managers to leave, but never mentioned his use of leave.
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Accordingly, Besser has not shown an additional causal link between his use
of FMLA leave and his termination.
The dissenting opinion contends that 29 U.S.C. § 2615(a)(2) “should be
read to protect not only an employee’s opposition to actual violations of the law,
but also opposition to conduct that the employee reasonably and in good faith
perceives as violating the FMLA.”39 We do not address that question because
Besser’s brief in this court does not raise it. Despite the dissenting opinion’s
assertion to the contrary, Besser did not contend that the FMLA protects his
opposition to conduct that he had a reasonable and good-faith belief violated
the FMLA.
IV
Besser also alleges that the district court erred when it dismissed his
ADA discrimination and retaliation claim. The ADA prohibits an employer
from “excluding or otherwise denying equal jobs or benefits to a qualified
individual because of the known disability of an individual with whom the
qualified individual is known to have a relationship or association.”40
A
Besser alleges that he was terminated due to his association with a
person with a disability. This court has not “explicitly recognized a cause of
action for discrimination based on association with a handicapped
individual.”41 However, we have said that “[i]f such an action were viable,” to
establish a prima facie case the plaintiff would have to show: “(1) [his]
qualification for the job, (2) an adverse employment action, (3) the employer’s
knowledge of the employee’s disabled relative, and (4) that the adverse
39 Post at 18.
40 42 U.S.C. § 12112(b)(4).
41 Spencer v. FEI, Inc., 725 F. App’x 263, 267 (5th Cir. 2018) (per curiam) (quoting
Grimes v. Wal-Mart Stores Tex., L.L.C., 505 F. App’x 376, 380 n.1 (5th Cir. 2013) (per
curiam)).
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employment action occurred under circumstances raising a reasonable
inference that the relative’s disability was a determining factor in the
employer’s adverse action.”42 Regardless of whether we would recognize such
a claim, we agree with the district court that Besser has not adequately pled
facts sufficient to support the fourth requirement. Accepting Besser’s version
of events, Danieli became frustrated with his use of leave and acted
accordingly. After Danieli was fired, McBride expressed her displeasure with
Besser’s role in Danieli’s termination as well as anger that he discussed Danieli
with White when she had explicitly asked him not to. She also accused him of
causing the other two contract managers to leave the GLO. Besser’s complaint
does not contain any facts that allow a reasonable inference that Dodson’s
disability was a determining factor in Besser’s termination. In fact, according
to Besser’s account, Dodson’s disability was only mentioned twice: once when
he texted McBride to let her know about Dodson’s heart attack, and again
when Danieli mentioned that Besser was “taking advantage” of Dodson’s
illness. At no point does Besser suggest that Danieli, McBride, or anyone else
at the GLO expressed animosity regarding Dodson’s condition, or that it played
any role in the decision to terminate him.
B
Alternatively, Besser alleges that the GLO retaliated against him for
making “protected complaints about disability association discrimination and
retaliation by Danieli, or due to McBride’s perception that he had made
complaints about disability association discrimination and retaliation by
Danieli.” Retaliation under the ADA requires that an employee show: (1) he
engaged in protected activity, (2) an adverse employment action occurred, and
(3) a causal link exists between the protected activity and the adverse
42 Id. (quoting Grimes, 505 F. App’x at 380).
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employment action.43 In this case, Besser did not engage in protected activity.
Here, protected activity includes “oppos[ing] any act or practice made unlawful
by [the ADA].”44 To satisfy this requirement, Besser must show that he had a
“reasonable belief that the employer was engaged in unlawful employment
practices”45 under the ADA.46 In other words, Besser would need to show that
he reasonably believed that someone at the GLO engaged in activity that was
“unlawful under the ADA in order to have engaged in a ‘protected’ activity.”47
Besser did not sufficiently plead facts to suggest that anyone at the GLO was
engaged in unlawful conduct under the ADA.
As we already noted, Besser has not sufficiently alleged illegal
associational discrimination by Danieli or anyone at the GLO. In addition,
under the ADA,
an employer need not provide the applicant or employee without a
disability with a reasonable accommodation because that duty only
applies to qualified applicants or employees with disabilities. Thus, for
example, an employee would not be entitled to a modified work schedule
as an accommodation to enable the employee to care for a spouse with a
disability.48
As the Third Circuit has noted, “there is a material distinction between
firing an employee because of a relative’s disability and firing an employee
because of the need to take time off to care for the relative.” 49 Accepting
Besser’s allegations as true, he complained of Danieli’s criticism of his use of
43 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007).
44 St. John v. Sirius Sols., LLLP, 299 F. App’x 308, 309 (5th Cir. 2008) (per curiam)
(citing 42 U.S.C. § 12203(a)).
45 DeBlanc v. St. Tammany Par. Sch. Bd., 640 F. App’x 308, 313 (5th Cir. 2016) (per
curiam) (quoting St. John, 299 F. App’x at 309).
46 St. John, 299 F. App’x at 309 (emails at issue complain of disclosure, which is not
protected under the ADA).
47 DeBlanc, 640 F. App’x at 313.
48 29 C.F.R. Pt. 1630, App § 1630.8.
49 Erdman v. Nationwide Ins. Co., 582 F.3d 500, 510 (3rd Cir. 2009).
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leave to take care of Dodson. He has not alleged any discriminatory comments
or actions regarding Dodson’s condition, nor has he alleged that Danieli’s
behavior was a result of Dodson’s disability. By his own account, Besser
explains “had [Dodson] not become disabled, [Besser] would not have taken
FMLA leave, Danieli would not have made her inappropriate comments, and
the chain of events leading to [Besser’s] termination would not have been set
in motion.” In other words, it was his use of leave that triggered Danieli’s
“inappropriate comments.” Besser’s complaint regarding those comments and
McBride’s frustration with Besser do not constitute opposition to unlawful
activity under the ADA because the ADA does not require employers to
accommodate non-disabled workers by restricting their work schedule or
allowing them to miss work to care for a disabled relative.50
Even accepting as true that Besser was fired for his use of leave, or for
opposing comments by Danieli or McBride regarding his use of leave, such
actions are not prohibited under the ADA, and opposition to those actions
cannot constitute protected activity in support of Besser’s ADA retaliation
claim.
* * *
Accordingly, we AFFIRM the district court’s judgment.
50 29 C.F.R. Pt. 1630, App § 1630.8.
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JAMES L. DENNIS, Circuit Judge, concurring in part and dissenting in part:
I disagree with the majority’s conclusion that John “Besser’s protected
activity is limited to his four uses of leave.” Majority at 11. I would hold that
Besser plausibly alleged protected activity by stating that he informed human
resources (“HR”) about Project Team Lead Kerry Danieli’s hostile response to
his use of leave to which he was entitled under the Family and Medical Leave
Act (“FMLA”). Because Besser plausibly alleged that he was terminated from
his job at the Texas General Land Office (“GLO”) due to animosity that
Contracts Department Director Kelly McBride bore towards him as a result of
this protected activity, Besser’s complaint properly stated a claim for relief. I
would therefore reverse the district court’s dismissal under FEDERAL RULE OF
CIVIL PROCEDURE 12(b)(6).
I
The majority affirms by disregarding several of Besser’s allegations of
protected activity, which it justifies with a blanket statement that
“[c]omplaints about an employer’s actions that are not unlawful under the
FMLA cannot form the basis of a retaliation claim.” Majority at 9.
Respectfully, I believe this is an incorrect and overly restrictive interpretation
of the FMLA’s “opposition clause,” codified at 29 U.S.C. § 2615(a)(2). Instead,
the provision should be read to protect not only an employee’s opposition to
actual violations of the law, but also opposition to conduct that the employee
reasonably and in good faith perceives as violating the FMLA.1
1 The majority contends that it need not address this argument because it was not
raised in Besser’s briefing. Majority at 14. But Besser squarely asserts throughout his
briefing that his complaints about Danieli and participation in the ensuing investigation
were protected activities for which he was unlawfully terminated. It is inherently necessary
for this court to determine whether these activities were protected under the FMLA in order
to evaluate his arguments, and the majority’s failure to undertake that task is clearly
unjustifiable.
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A wide range of federal antidiscrimination statutes protect employees
who report conduct they reasonably and in good faith believe to be unlawful,
irrespective of whether the complained-of activity actually violates the law.
See Singletary v. Howard Univ., 939 F.3d 287, 297 n.2 (D.C. Cir. 2019)
(collecting federal statutes). This includes 42 U.S.C. § 2000e–3(a), the
antiretaliation provision in Title VII of the Civil Rights Act of 1964 after which
29 U.S.C. § 2615(a)(2) was modeled, and the legislative history of the FMLA
indicates the two prohibitions are “intended to be construed in the same
manner.” Gordon v. U.S. Capitol Police, 778 F.3d 158, 161 (D.C. Cir. 2015)
(quoting S. Rep. No. 103–3, at 34–35 (1993); H.R. Rep. No. 103–8, at 46
(1993))); Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1140
(5th Cir.1981). The Department of Labor’s (“DOL”) official interpretation of
the FMLA’s opposition clause is more consistent with this broader reading
than the interpretation employed by the majority: Employees are “protected if
they oppose any practice which they reasonably believe to be a violation of the
Act or regulations,” regardless of whether the practice is in fact unlawful. 29
C.F.R. § 825.220(e).
The purpose of federal discrimination laws also supports this reading of
§ 2615(a)(2). In enacting these laws, Congress selected “[c]ooperation and
voluntary compliance” as the “preferred means for achieving” the statutory
goals—namely, bringing about “equality of employment opportunities by
eliminating those practices that discriminate” on impermissible bases. Berg v.
La Crosse Cooler Co., 612 F.2d 1041, 1045 (7th Cir. 1980) (quoting Alexander
v. Gardner-Denver Co., 415 U.S. 36, 44 (1974)). Limiting retaliation
protections to only those employees who oppose practices that are actually
unlawful would undermine Congress’s central purpose of encouraging “the
frank and nondisruptive exchange of ideas between employers and employees.”
Id. “Such a narrow interpretation . . . would not only chill the legitimate
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assertion of employee rights . . . but would tend to force employees to file formal
charges rather than seek conciliation or informal adjustment of grievances.”
Id. (quoting Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir.
1978)). This is because the filing of formal charges is explicitly protected under
the statute regardless of the merits of a claim.2 And the negative effect on
informal discourse would not be balanced by any reciprocal benefit, as the
restrictive interpretation “serves no redeeming statutory or policy purposes of
its own.” Id.
Given Congress’s unequivocal statement that it intended the opposition
clause in the FMLA to be “construed in the same manner” as the
antiretaliation provision in Title VII, Gordon, 778 F.3d at 161 (quoting S. Rep.
No. 103–3, at 34–35), as well as the deference that we presumably owe to the
Department of Labor’s interpretation of the FMLA, see Chevron, U.S.A., Inc. v.
2 Both the FMLA and Title VII also contain a “participation clause” that prohibits an
employer from retaliating against an employee who institutes or participates in
investigations or proceedings related to the respective statutes. See 29 U.S.C. § 2615(b); 42
U.S.C. § 2000e–3(a). Most courts that have considered the issue have held that Title VII’s
participation clause prohibits only retaliation based on an employee’s participation in an
Equal Employment Opportunity Commission (“EEOC”) investigation, and the clause
accordingly does not protect cooperation with an employer’s internal investigation. See, e.g.
Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41, 49 (2d Cir. 2012); E.E.O.C. v. Total Sys.
Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000); Vasconcelos v. Meese, 907 F.2d 111, 113
(9th Cir. 1990). However, in so holding, courts have generally relied at least in part on the
plain language of Title VII’s participation clause, which prohibits retaliation for participation
“in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e–3(a)
(emphasis added). By contrast, the language of the FMLA participation clause is much
broader, protecting an employee who institutes “any proceeding, under or related to this
subchapter” or who gives “information in connection with any inquiry or proceeding relating
to any right provided under this subchapter.” 29 U.S.C. § 2615(b)(1)-(2). The caselaw on this
point is sparse, but considering this difference in statutory language, it is at least arguable
that Besser’s participation in the HR interviews regarding the harassment he endured for
exercising FMLA rights would alternatively qualify for protection under the FMLA’s
participation clause, as the conduct would on its face seem to constitute “providing
information in connection with an inquiry . . . relating to [a] right provided under” the FMLA.
29 U.S.C. § 2615(b)(2).
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Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984),3 I would hold that
employees may state a claim for relief under the FMLA by plausibly alleging
that they suffered an adverse employment action as a result of their opposition
to conduct or practices that they reasonably believed violated the FMLA. To
survive the GLO’s motion to dismiss under Rule 12(b)(6), then, Besser need
only plausibly allege that he honestly and reasonably believed Danieli’s
harassment violated his rights under the FMLA, and that his opposition to her
behavior motivated the GLO to terminate him. See Turner v. Pleasant, 663
F.3d 770, 775 (5th Cir. 2011) (“We construe facts in the light most favorable to
the nonmoving party, as a motion to dismiss under 12(b)(6) is viewed with
disfavor and is rarely granted. Dismissal is appropriate only if the complaint
fails to plead enough facts to state a claim to relief that is plausible on its face.”
(cleaned up)). Besser has done so.
II.
Instead of recognizing Besser’s allegations that he believed in good faith
that Danieli’s hostile comments violated the FMLA, the majority instead
analyzes Danieli’s hostile comments under the frameworks set forth in Jackson
v. Cal-Western Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010), and Laxton
v. Gap Inc., 333 F.3d 572, 583 (5th Cir. 2003), in which this court evaluated
when comments by employers or coworkers may be evidence that
discriminatory intent motivated an adverse employment action. Majority at 9-
10. This misframes Besser’s contention. His complaint did not allege that
Danieli’s comments were evidence that a different employment action was
discriminatory. Rather, Besser asserted that the harassment was itself
unlawful discrimination, and that his opposition to it was therefore protected
activity. Specifically, Besser alleged that the GLO violated his rights by
3 See also Woods v. START Treatment & Recovery Centers, Inc., 864 F.3d 158, 168–69
(2d Cir. 2017) (applying Chevron deference to a related provision of 29 C.F.R. § 825.220).
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“harassing and terminating [him] . . . due to his protected complaints regarding
FMLA interference and retaliation by Danieli.” (Emphasis added.) Jackson
and Laxton are thus inapposite. Instead, our inquiry should turn on the
analysis set out in the preceding discussion: whether Besser was objectively
reasonable in believing that Danieli’s harassment violated the FMLA,4
whether Besser’s reporting Danieli’s behavior to McBride and later HR
constituted opposition, and whether Besser has alleged a causal connection
between this reporting and Besser’s termination. See supra Part I.
To the first point, 29 U.S.C. § 2615(a)(1) prohibits an employer “from
interfering with or restraining an employee from exercising, or attempting to
exercise, their FMLA rights.” The term “interference” includes “not only
refusing to authorize FMLA leave, but discouraging an employee from using
such leave.” Cuellar v. Keppel Amfels, L.L.C., 731 F.3d 342, 346 (5th Cir. 2013)
(quoting 29 C.F.R. § 825.220(b)). Under the provision, “[a]n employer’s action
that deters an employee from participating in protected activities constitutes
an ‘interference’ or ‘restraint’ of the employee’s exercise of his rights.” Stallings
v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006) (citing Bachelder v.
Am. W. Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir.2001)). Trial courts have
often found that statements by an employer that discourage an employee from
taking FMLA leave violate 29 U.S.C. § 2615(a)(1). See, e.g., Jones v. Children’s
Hosp., 58 F. Supp. 3d 656, 669 (E.D. La. 2014) (finding employer could have
violated FMLA when plaintiff alleged that supervisor told her she could not
take FMLA leave because employer was short staffed).5
4 At this stage, an evaluation of whether Besser alleged that he subjectively believed
in good faith that Danieli’s harassment violated the FMLA is trivial given that Besser’s
complaint asserted that Danieli’s harassment did in fact violate the FMLA. The sincerity of
this belief is a factual question that we need not consider on review of a 12(b)(6) dismissal.
5See also Brown v. Lassiter-Ware, Inc., No. 6:11-CV-1074-ORL-36, 2013 WL 4456546,
at *18 (M.D. Fla. Aug. 16, 2013), (finding employer could have violated FMLA when plaintiff
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Besser alleged that Danieli made numerous harassing comments in
response to his use of FMLA leave that would likely discourage a reasonable
employee from taking further FMLA leave to which the employee was legally
entitled. Specifically, Besser asserted that when he used FMLA leave to come
in late for a week so that he could provide caregiver services to his husband,
Danieli told him “it must be nice to come in late” and became defensive when
he explained the gravity of his husband’s health problems. Besser stated that
another time when he informed Danieli of his intent to use FMLA leave,
Danieli rolled her eyes at him and accused him of “milk[ing]” his husband’s
serious health condition. And, most pointedly, Besser alleges that when he
updated a shared calendar to show that he would be taking two additional days
of leave, Danieli came to his office and yelled and berated him for “always
[being] off,” and “taking advantage” of his husband’s illness. Under the facts
that Besser asserts, Danieli indicated that Besser should not take any more
FMLA leave by telling him his “priority should be the GLO.” When Besser
asked Danieli to leave his office, he alleges, she refused and informed him that
she would consider it insubordination if he declined to stay and suffer further
browbeating. Besser states that Danieli’s tirade was so loud and severe that
his coworkers came to see what was wrong, and that another staff member
alleged that supervisor told him to “push through” if symptoms of his chronic illness
recurred); aff’d, 620 F. App’x 888 (11th Cir. 2015); Nixon v. Silverado Hospice of Houston, No.
CIV.A. H-12-0985, 2013 WL 3973980, at *4 (S.D. Tex. July 31, 2013) (finding employer could
have violated FMLA when plaintiff alleged that office manager responsible for HR telephoned
her while she was on FMLA leave and pressured her to return to work); Traxler v. Multnomah
Cty., No. CIV. 06-1450-KI, 2008 WL 282272, at *16 (D. Or. Jan. 29, 2008) (finding employer
could have violated FMLA when plaintiff alleged that her supervisor complained about the
amount of FMLA leave she had used and told her that she “dropped the ball” by taking FMLA
leave); Lynch v. City of Largo, Fla., No. 8:10-CV-1064-T-33TGW, 2011 WL 4634020, at *8
(M.D. Fla. Oct. 5, 2011) (finding employer could have violated FMLA when plaintiff alleged
head of department repeatedly interrogated her about what was wrong with her and why she
was using so much FMLA leave).
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found Danieli’s treatment of Besser unacceptable enough to report the incident
to HR without any prompting from Besser.
Clearly, this kind of repeated, escalating harassment could amount to
discouragement from taking FMLA leave. The question remains whether
Danieli’s acts can be fairly attributed to the GLO, as 29 U.S.C. § 2615(a)(1)
prohibits only “an employer” from interfering with FMLA rights. The FMLA
defines “employer” to include “any person who acts, directly or indirectly, in
the interest of an employer to any of the employees of such employer.” 29
U.S.C. § 2611(4)(A)(ii)(I). In interpreting the nearly identical definition
appearing in the Fair Labor Standards Act, 29 U.S.C. § 203(d), this court has
stated that “[t]he term employer includes individuals with managerial
responsibilities and ‘substantial control over the terms and conditions of the
[employee’s] work.’” Lee v. Coahoma Cty., Miss., 937 F.2d 220, 226 (5th Cir.
1991) (quoting Falk v. Brennan, 414 U.S. 190, 194 (1973)) (second alteration in
original). At this early stage of the proceeding, it is difficult to assess the
degree to which Danieli’s status as “Team Lead” granted her managerial
responsibilities and control over Besser’s working terms and conditions. But
based on Besser’s allegations, Danieli at least held a leadership title that
seemed to carry with it some authority to discipline Besser for insubordination,
and she indeed appears to have considered Besser a subordinate who was
obligated to follow her directives. Given that we must construe facts and make
inferences in favor of Besser at this stage, and that we need only consider
whether Besser—who was not trained as a lawyer—was reasonable in his
belief that Denieli’s harassment was unlawful under the FMLA, I do not think
it is necessary for us to engage in a nuanced legal evaluation to determine
whether the employee nominally denoted Besser’s direct superior in fact
wielded enough control over him to be subject to the FMLA prohibition on
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interference.6 See EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 242 & n.5 (5th
Cir. 2016) (evaluating the reasonable belief standard from the point of view of
an employee who has not been trained or instructed on the law (citing Boyer–
Liberto v. Fontainebleau Corp., 786 F.3d 264, 290 (4th Cir.2015) (en banc)
(Wilkinson, J., concurring in part and dissenting in part))). Accordingly, I
conclude that Besser plead facts that made his belief that Danieli’s harassment
constituted a violation of the FMLA reasonable.
Turning next to whether Besser’s complaints to McBride and
participation in HR interviews regarding Danieli’s harassment constituted
6 Even if it would be unreasonable for Besser to believe Danieli exercised enough
control over his working terms and conditions to be prohibited from interfering with his
FMLA rights under 29 U.S.C. § 2615(a)(1), courts have held in the Title VII context that
reporting even a single isolated incident of harassment by a coworker can be protected
activity if the harassment is so threatening or humiliating as to engender a reasonable belief
that a hostile work environment is in progress. Boyer-Liberto v. Fontainebleau Corp., 786
F.3d 264, 268 (4th Cir. 2015); see also Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998) (noting that an isolated harassment incident may amount to a negative change in
terms and conditions of employment if very serious). Although the district court correctly
noted that federal courts have not yet recognized an FMLA cause of action based on a hostile
work environment, see Smith-Schrenk v. Genon Energy Sen's., L.L.C., No. CIV.A. H-13-2902,
2015 WL 150727, at *4 (S.D. Tex. Jan. 12, 2015), there are principled reasons to believe that
such an action should be cognizable.
Under Title VII, hostile work environment liability rests on a theory that, by using
statutory language that prohibits discrimination in “terms, conditions, or privileges of
employment,” Congress intended “to strike at the entire spectrum of disparate treatment . . .
in employment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (quoting 42 U.S.C.
§ 2000e–2(a)(1); Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707 n. 13
(1978)). Accordingly, the statute prohibits harassment that is severe and pervasive enough
to negatively alter the conditions of the target’s employment. Id. at 67. By the same token,
29 U.S.C. § 2614(a)(1) requires an employer to restore an employee who returns from FMLA
leave to a position with equivalent “benefits, . . . terms and conditions of employment” as the
position the employee held prior to taking the leave, and it would follow that an employer
could violate the FMLA by allowing severe or pervasive harassment to negatively alter the
conditions of a returning employee’s employment. Such a legal theory would be novel, but,
again, we are not concerned with whether Danieli’s harassment actually violated the FMLA,
but only whether Besser was reasonable in believing that it did. Given that a nonfrivolous
argument can be put forth that Danieli’s behavior was in fact unlawful even if she qualifies
only as Besser’s coworker and not his superior, I would hold that Besser’s belief was
reasonable in either event.
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opposition, the Supreme Court has defined “opposition” broadly. In Crawford
v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 276 (2009),
the Court adopted EEOC guidelines, stating, “When an employee
communicates to her employer a belief that the employer has engaged in a form
of employment discrimination, that communication virtually always
constitutes the employee’s opposition to the activity.” Crawford, 555 U.S. at
276 (citing 2 EEOC Compliance Manual §§ 8–II–B(1), (2), p. 614:0003 (Mar.
2003)) (cleaned up). The Court elaborated that the protections apply not only
when an employee affirmatively makes an internal complaint on the
employee’s own initiative, but also when an employee responds to questions
posed by an employer in an internal investigation:
There is, then, no reason to doubt that a person can
‘oppose’ by responding to someone else’s question just
as surely as by provoking the discussion, and nothing
in the statute requires a freakish rule protecting an
employee who reports discrimination on her own
initiative but not one who reports the same
discrimination in the same words when her boss asks
a question.
Id. at 277–78. Again, this broad reading makes sense given that the “central
purpose” of federal discrimination statutes is to eliminate discrimination by
encouraging “the frank and nondisruptive exchange of ideas between
employers and employees,” Berg, 612 F.2d at 1045. Though a Title VII case,
as discussed, this reasoning applies equally here. Gordon, 778 F.3d at 161
(quoting S. Rep. No. 103–3, at 34–35; H.R. Rep. No. 103–8, at 46). And, under
such a standard, Besser’s complaints to McBride and the statements Besser
gave during his interviews with HR plainly constitute opposition.
What remains is the question of whether Besser has alleged a causal
connection between his protected conduct and his termination. As the majority
acknowledges, Besser asserts that McBride was angry about his role in
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Danieli’s termination—that is, because Besser provided information to HR
during its investigation of Danieli’s harassment. Majority at 9. Besser alleges
that when he commented to McBride that her treatment of the project
managers following Danieli’s dismissal had created a stressful work
environment, “McBride very much lost her temper,” accused Besser of
reporting Danieli’s behavior and causing her termination, told Besser that he
had crossed a line, and warned him that he had better “watch [him]self.”
Besser states McBride later accused him of being disloyal to the GLO and
stated that he had “messed everything up.” Drawing reasonable inferences in
favor of Besser, as we are required to do at this stage of the proceeding, see
Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013), we can surmise that these
comments were also in reference to the role Besser played in Danieli’s
termination. The majority accurately states that “Besser has not sufficiently
pled that McBride’s animosity was directed towards his use of leave.” Majority
at 13. But Besser has alleged that McBride’s animosity was directed towards
another FMLA protected activity—opposing Danieli’s harassment that he
reasonably believed to be a violation of the FMLA. And after Besser filed a
complaint with HR regarding this animosity, he was explicitly fired because of
the discord between him and McBride. Unlike the cases the majority cites, this
is not a case where Besser relies on “temporal proximity alone” to show the
requisite causal connection. Majority at 12. Rather, Besser has alleged that
McBride and a representative from HR made express statements linking his
termination to activity protected by the FMLA.
***
In sum, Besser has sufficiently alleged that he engaged in protected
activity when he reported Danieli’s harassment that he reasonably believed
violated the FMLA, and that this protected activity resulted in his termination,
which is indisputably an adverse employment action. I would therefore reverse
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the district court’s dismissal and hold that Besser has stated a plausible claim
for relief. Respectfully, the majority errs by concluding otherwise.
28