IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60125

Summary Calendar

SAMMY MOZINGO, 

 Plaintiff - Appellant

v.

OIL STATES ENERGY, INCORPORATED, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:14-CV-924

Before HIGGINBOTHAM, HAYNES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Plaintiff Sammy Mozingo appeals the grant of summary judgment in 

favor of Defendant Oil States Energy, Inc. (“Oil States”) on his claims under 

the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”). 

Because the statute of limitations bars Mozingo’s claim, we AFFIRM.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 5, 2016

Lyle W. Cayce

Clerk

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I. Background

Mozingo worked for Oil States as a field supervisor beginning in 

November 2010. He worked 30 days “on,” and 10 days “off.” His on days were 

spent in Pennsylvania, and on his days off he would return to Mississippi. 

Mozingo’s immediate supervisor was Quentin Breaux, and his regional 

manager was Tim Haynes. 

From January to March 2012, Mozingo took FMLA leave to care for his 

wife. On May 15, 2012, Mozingo learned that his father, who was in declining 

health, was in need of help. According to his declaration submitted in 

opposition to summary judgment, Mozingo notified Haynes that he would need 

FMLA leave to take care of his father.1 Mozingo also spoke to Rhonda Totten 

in Human Resources, who told Mozingo that his leave was covered by FMLA. 

Mozingo’s return-to-work date was left open.2

Once he returned to Mississippi, Mozingo visited his father, and the two 

argued. Mozingo’s father subsequently alleged that Mozingo had assaulted 

him, and Mozingo was arrested and given a June 13 court date. Mozingo 

contacted Breaux sometime between May 18 and May 23 to let him know what 

happened and that he would return to work after the court date. Haynes called 

Mozingo on June 1, 2012, and terminated him for failing to report to work. 

 

1 In his deposition, Haynes stated that he proposed allowing Mozingo to take “his days 

off early, take care of his family, . . . and then come back.” 

2 On May 15, 2012, Haynes sent Mozingo an email stating, “[y]our scheduled days off 

have been moved up, for this time only, to start with your flight home on May 16, 2012, and 

to return to work on May 25. I require a phone call to your Product Line Manager, Quentin 

Breaux, on May 23, 2012[,] to confirm you will be back at work and an estimated time you 

will be arriving.” The email goes on to state, “[b]y now you should have been contacted by 

our HR representative to discuss the possibility of FMLA . . . , if it becomes necessary for you. 

Please follow their[] and the packet instructions completely if this is needed. If you fall within 

the parameters of this process and you are in need of the program, by all means, use it.” 

Mozingo claimed that he never received the email because he did not have access to the email 

address to which it was sent. 

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On December 1, 2014—more than two years after his termination—

Mozingo sued Oil States for alleged violations of the FMLA. Oil States moved 

for summary judgment on the ground that there was no genuine dispute of 

material fact regarding whether any alleged FMLA violation was willful, and 

accordingly the dispute was time barred.3 The district court granted the

motion, and Mozingo appealed.

II. Jurisdiction and Standard of Review

We have jurisdiction over this timely appeal of a final judgment. 28 

U.S.C. § 1291. 

We review the district court’s grant of a motion for summary judgment 

de novo and apply the same standards as the district court. DePree v. 

Saunders, 588 F.3d 282, 286 (5th Cir. 2009). Summary judgment is 

appropriate where “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). “Only 

disputes over facts that might affect the outcome of the suit under the 

governing law will properly preclude the entry of summary judgment.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On summary judgment, we review the facts in the light most favorable 

to the nonmovant. Lincoln Gen. Ins. Co. v. Aisha’s Learning Ctr., 468 F.3d 857, 

858 (5th Cir. 2006). Indeed, “[d]oubts are to be resolved in favor of the 

nonmoving party, and any reasonable inferences are to be drawn in favor of 

that party.” Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir. 2001).

III. Discussion

Under the FMLA, a covered employer may not “interfere with, restrain, 

or deny the exercise of or the attempt to exercise, any [FMLA leave] right.” 29 

 

3 In the alternative, Oil States maintained that summary judgment was proper 

because Mozingo was not entitled to FMLA leave. We do not address this contention on 

appeal. 

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U.S.C. § 2615(a). The FMLA also “protects employees from retaliation or 

discrimination for exercising their rights under the FMLA.” Mauder v. Metro. 

Transit Auth. of Harris Cty., 446 F.3d 574, 580 (5th Cir. 2006). The general

statute of limitations for FMLA violations is two years, unless the cause of 

action alleges a willful violation, in which case the statute of limitations is 

three years. 29 U.S.C. § 2617(c). There is no dispute that Mozingo filed his 

claim more than two years—but less than three years—after the alleged 

violation. Accordingly, to survive summary judgment, he must enter evidence 

of a willful violation. 

The FMLA does not define willful. To determine whether conduct is 

willful, courts have looked to case law from other employment contexts. E.g., 

Hillstrom v. Best W. TLC Hotel, 354 F.3d 27, 33 (1st Cir. 2003) (“There is every 

reason to apply [the] FLSA standard for willfulness to FMLA claims.”).

Relying in part on case law under the FLSA, we have determined that “to 

establish a willful violation of the FMLA, a plaintiff must show that his 

employer ‘either knew or showed reckless disregard for the matter of whether 

its conduct was prohibited by statute.’” See Henson v. Bell Helicopter Textron, 

Inc., 128 F. App’x 387, 393 (5th Cir. 2005) (quoting Hillstrom, 354 F.3d at 33 

(citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988))); see also 

Nero v. Indus. Molding Corp., 167 F.3d 921, 929 n.4 (5th Cir. 1999) (noting in 

an FMLA case that the willful conduct standard under the FLSA requires 

reckless disregard). “A negligent violation is not a willful violation, and an 

unreasonable violation does not necessarily constitute a willful violation.” 

Steele v. Leasing Enters., Ltd., 826 F.3d 237, 248 (5th Cir. 2016) (citation 

omitted) (discussing FLSA violations).

Mozingo’s argument that Oil States’s conduct was willful is largely based 

on its alleged failure to send him the proper forms as required by 29 C.F.R. 

§ 825.300. Although Oil States entered the forms as evidence in support of its 

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motion for summary judgment, Mozingo claimed that Oil States never sent 

them. Construing the facts in favor of Mozingo, we will assume that Oil States 

did not send the forms. Mozingo claims a jury could determine that Oil States 

failed to send the forms due to “a conscious decision to wait and see” whether 

Mozingo actually required FMLA leave. In support of this argument, he 

maintains that Haynes restructured his “off” days to cover the absence, with 

the option to apply for FMLA leave thereafter if he needed it. 

Mozingo cites no authority in support of the notion that such conduct

amounts to a willful violation. Furthermore, he has identified no evidence that 

Oil States either knew or showed reckless disregard as to whether its waitand-see approach to sending the paperwork violated the FMLA.4 Compare

Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 553 

(5th Cir. 2009) (affirming district court’s determination that there was no 

evidence of willfulness in the context of the FLSA where the plaintiff provided 

no evidence that the defendant actually knew its pay structure violated the 

FLSA or ignored or failed to investigate complaints), with Singer v. City of 

Waco, 324 F.3d 813, 821–22 (5th Cir. 2003) (upholding a jury’s finding of 

willfulness in the context of the FLSA where the employer admitted that it was 

aware that its employees were being paid incorrectly and the employer’s 

attorney advised the employer not to investigate the matter), and Reich v. Bay, 

Inc., 23 F.3d 110, 117 (5th Cir. 1994) (upholding a district court’s finding of 

willfulness in the context of the FLSA where a government representative 

notified the employer that its overtime payment practices violated the FLSA 

and the employer continued the practices without further investigation). 

 

4 “The party opposing summary judgment is required to identify specific evidence in 

the record and to articulate the precise manner in which that evidence supports his or her 

claim.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

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Accordingly, the district court was correct to apply the two-year statute of 

limitations.

Because Mozingo filed his lawsuit more than two years after the alleged 

FMLA violation, his claims are time barred. Accordingly, the district court’s 

grant of summary judgment was proper.

AFFIRMED.

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