* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-51159

BRIAN MCARDLE

Plaintiff-Appellant

v.

DELL PRODUCTS, L.P.; DELL MARKETING USA, L.P.

Defendant-Appellee

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:06-CV-00841

Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges. 

PER CURIAM:*

Brian McArdle (“McArdle”) appeals from the district court’s grant of

summary judgmentto Dell Products, L.P. (“Dell”). McArdle alleges Dell violated

the entitlement and anti-retaliation provisions of the Family and Medical Leave

Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., when, following the end of his

approved leave, Dell failed to return an important sales account to his portfolio

and terminated his employment. For the reasons set forth below, we conclude the

district court erred by granting Dell’s motion for summary judgment on the

United States Court of Appeals

Fifth Circuit

F I L E D

September 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-51159

2

entitlement claim and the retaliation claim relating to the sales account, but

conclude the district court did not err by granting summary judgment on the

retaliatory termination claim. Accordingly, we affirm in part, reverse in part,

and remand to the district court for further proceedings. 

I. BACKGROUND

McArdle began working for Dell in October 1996 as a sales associate.

Shortly thereafter, Delltransferred McArdle to thePreferred Accounts Division,

where he attained the position of Sales Representative IV by August 2004. His

duties primarily involved handling sales for specific customer accounts,

collectively referred to as his “account set.” In 2002, the internet sites AskJeeves

and eBay were added to McArdle’s account set. Both AskJeeves and eBay were

large, high-activity accounts and became the largest accounts in McArdle’s

portfolio. 

In 2004, McArdle suffered from problems with his back and, in August

2004, he applied to Dell for FMLA leave in order to have surgery. Dell approved

the leave, which was set to run from August 24th to October 18th. When

McArdle began his leave, Dell re-assigned all of McArdle’s accounts to other

sales representatives for them to handle during McArdle’s absence. McArdle

returned to work as scheduled on October 18th as a Sales Representative IV and

received all of his accounts except eBay. The eBay account had been

permanently reassigned to Frank Perry, another sales representative. McArdle

asked his direct supervisor, Brad Lambert, to return the account, but the

account was not returned. 

Frustrated with the loss of the eBay account, McArdle voluntarily

transferred to the Corporate Business Group (“CBG”) in December 2004.

McArdle was given different accounts, which included the account of investment

bank Bear Stearns. According to McArdle, “[i]t was common knowledge at Dell

that the Bear Stearns account was extremely difficult to work with.” In
No. 07-51159

3

September 2005, as a result of McArdle’s poor performance and Dell’s receipt of

customer complaints about him, his supervisor in the CBG, Nichole Gallagher,

placed him on a Performance Improvement Plan (“PIP”). The PIP included a

goal of not receiving any more customer complaints. However, while McArdle

was on the PIP, another customer made a complaint against him. Dell then

terminated McArdle’s employment on November 4, 2005. 

McArdle filed suitin the district court, alleging Dell violated the FMLA by

failing to provide him with an equivalent position upon his return from leave

and engaged in retaliation on account of his taking leave. Dell moved for

summary judgment on all of McArdle’s claims, which the district court granted.

McArdle filed a timely notice of appeal. 

II. STANDARD OF REVIEW

This court reviews a district court’s grant of summary judgment de novo,

applying the same standard as the district court. Turner v. Baylor Richardson

Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). A party is entitled to summary

judgment only if “the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). On a motion for summary judgment, the court must view the facts in the

light mostfavorable to the non-moving party and draw all reasonable inferences

in its favor. See Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 325 (5th

Cir. 2004). In reviewing the evidence, the court must therefore “refrain from

making credibility determinations or weighing the evidence.” Turner, 476 F.3d

at 343.

III. ANALYSIS

TheFMLA entitles eligible employees to twelve work-weeks of leave in any

12-month period for various qualifying events, including a “health condition that

makes the employee unable to perform the functions” of his position. 29 U.S.C.
No. 07-51159

4

§ 2612(a)(1)(D). An employer ordinarily must provide returning employees with

the same position they previously held or “an equivalent position with equivalent

employment benefits, pay, and other terms and conditions of employment.” 29

U.S.C. § 2614(a)(1). An employer’s failure to restore an employee to the same or

equivalent position gives rise to an entitlement claim under 29 U.S.C. §

2615(a)(1). Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004).

The FMLA also “protects employees from interference with their leave as well

as against discrimination or retaliation for exercising their rights.” Bocalbos v.

Nat’l W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998). An employer’s

prohibited discrimination or retaliation gives rise to a claim under 29 U.S.C. §

2615(a)(2). Haley, 391 F.3d at 649. McArdle asserted entitlement and

retaliation claims against Dell. We discuss each of his claims in turn. 

A. McCardle’s Entitlement Claim

The district court concluded McArdle received an equivalent position upon

returning from leave and that the loss of the eBay account was de minimis as a

matter of law. McArdle argues the district court erred by failing to consider

evidence showing he lost approximately $12,000 to $20,000 in annual

compensation because he no longer held the eBay account. Dell contends the

district court properly disregarded that evidence and, in any event, correctly

concluded that any pre- and post-leave differences in McArdle’s position were de

minimis as a matter of law. 

An equivalent position is “virtually identical to the employee’s former

position in terms of pay, benefits and working conditions, including privileges,

prerequisites, and status.” 29 C.F.R. § 825.215(a). Upon return from leave,

“[t]he employee must have the same or an equivalent opportunity for bonuses

profit-sharing, and other similar discretionary and non-discretionary payments.”

Id. § 825.215(e)(3); see Smith v. E. Baton Rouge Parish Sch. Bd., 453 F.3d 650,

651 (5th Cir. 2006) (noting an equivalent position “must . . . have similar
No. 07-51159

5

opportunities for promotion and salary increase.” (emphasis added)). “De

minimis, intangible changes in the employee’s position do not, however, violate

the FMLA.” Id. (citing 29 C.F.R. § 825.215(f); Mitchell v. Dutchmen Mfg., 389

F.3d 746 (7th Cir. 2004)). 

Viewed in the light mostfavorable to McArdle, his affidavit and deposition

testimony show that he received less compensation or had diminished potential

for compensation when he returned from FMLA leave. In his deposition

testimony, McArdle testified that he suffered monetary loss as a result of losing

the eBay account. In his affidavit, McArdle stated the loss of the eBay account

lowered his revenue by one-third and “cost [him] bonus money and the

opportunity to make further bonus money.” McArdle averred the eBay account

historically provided $12,000 to $20,000 in bonuses each year. “Those bonuses

are based on sales of equipment made on that account, so losing eBay from my

account [set], and not receiving a replacement account, meant a certain drop in

my bonus compensation.” Based on that evidence, a reasonable trier-of-fact

could conclude McArdle received $20,000 less per year in compensation as a

result of the change or that he no longer had the opportunity to earn that

compensation. 

In response, Dell first asserts the district court properly ignored McArdle’s

affidavit because it contradicted his prior deposition testimony. “It is well

settled that this court does not allow a party to defeat a motion for summary

judgment using an affidavit that impeaches, without explanation, sworn

testimony.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996).

However, if the affidavit “merely supplements rather than contradicts prior

deposition testimony,” it may be considered when resolving the motion for

summary judgment. Id. at 496. Permissible supplementation includes providing

“greater detail or additional facts not previously provided in the deposition.” Id.
No. 07-51159

6

McArdle’s affidavit did not contradict his prior deposition testimony.

Instead,the affidavit served only to supplement or explain the earlier testimony.

McArdle testified at his deposition thatthe only post-leave change in his position

was the loss of the eBay account, and that the loss of the account affected him

“monetarily.” The affidavit and deposition testimony are entirely consistent in

that respect. Dell additionally argues the affidavit contradicts McArdle’s

deposition testimony because it includes details that he did not provide in the

testimony. However, none of the questions asked of McArdle required him to

provide the specific amount of his lost bonuses. Thus, he “had no occasion” to

reveal the details contained in the affidavit during his earlier deposition. See

Clark v. Resistoflex, Inc., 854 F.2d 762, 766-67 (5th Cir. 1988). Moreover, as

noted above, a party may supplement his deposition testimony with additional,

consistent facts and details via affidavit. See S.W.S. Erectors, 72 F.3d at 495.

Next, Dell argues the district court properly discounted McCardle’s

affidavit because it contained conclusory, unsupported allegations. We disagree.

“Unsupported allegations or affidavit or deposition testimony setting forth

ultimate or conclusory facts and conclusions of law are insufficient to defeat a

motion for summary judgment.” Clark v. America’s Favorite Chicken Co., 110

F.3d 295, 297 (5th Cir. 1997). Dell particularly challenges the statements in

McArdle’s affidavit that eBay “historically meant an additional $3,000-$5,000

in bonus pay” and that the loss of eBay meant McArdle would suffer a “certain

drop” in compensation. However, Dell’s argument focuses too narrowly on the

affidavit’s allegations. The ultimate fact McArdle is trying to prove is that he

lost compensation without the eBay account. He provided a specific monetary

figure to support that allegation and noted the source of bonus was “sales of

equipment made on that account.” McArdle undoubtedly had personal

knowledge of his income and its origin. If he received a certain amount of

compensation from eBay in the past, the trier of fact could reasonably infer that
No. 07-51159

1 McArdle also argues that his loss of the eBay account was not de minimis because his

supervisors and co-workers viewed him less favorably after he lost the eBay account. Because

McArdle offered enough evidence regarding the lack of equivalency in pay, we do not address

his argument that a lessened reputation is a loss of “status” for purposes of 29 C.F.R. §

825.215(a).

7

losing the eBay account would prevent him from earning that compensation in

the future. 

Dellfinally asserts that, even considering the affidavit and other evidence,

the district court properly determined any changes in McArdle’s position were

de minimis as a matter of law. According to Dell, it established compensation

guarantees for the quarter following McArdle’s return that were equivalent to

his pre-leave compensation. Despite that evidence, summary judgment was not

appropriate in light of McArdle’s affidavit and deposition testimony, which

definitively stated that the loss of the eBay account reduced his compensation.

That competing evidence establishes an issue of fact for a jury to resolve.

Moreover, the parties agree that Dell’s guarantee was only temporary. A jury

could find the temporary guarantee was not equivalent to the indefinite eBay

account income and income opportunities.1

B. McArdle’s Retaliation Claims

McArdle alleges Dell removed the eBay account and terminated his

employment as retaliation for exercising his rights under FMLA. Retaliation

claims under the FMLA are analyzed using the McDonnell Douglas burdenshifting framework. See Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757,

768 (5th Cir. 2001). To make a prima facie case of retaliation under the FMLA,

the plaintiff must show that: “(1) she was protected under the FMLA; (2) she

suffered an adverse employment decision; and either (3a) that she was treated

less favorably than an employee who had not required leave under the FMLA;

or (3a) the adverse decision was made because he took FMLA leave.” Id.

(citation omitted). Once the plaintiff makes a prima facie showing, the burden
No. 07-51159

2 Dell argues on appeal, for the first time since offering it as defense in the answer, that

McArdle’s retaliation claim as to the eBay account is barred by the applicable statute of

limitations. To preserve an issue for appeal, “the litigant must press and not merely intimate

the argument during the proceedings before the district court. If an argument is not raised to

such a degree that the district court had an opportunity to rule on it, we will not address it on

appeal.” FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1997). Dell did not press its statute of

limitations argument before the district courtto such a degree that it was preserved for appeal.

8

shifts to the defendant “to articulate a legitimate nondiscriminatory or

nonretaliatory reason for the employment action.” Id. If the defendant makes

such a showing, the plaintiff “must show by a preponderance of the evidence

that [the defendant’s] reason was a pretext for retaliation.” Id.

1. Retaliation Regarding the eBay Account2

McArdle alleges Dell undertook an adverse employment action by not

returning the eBay account to his portfolio when he returned from leave. Dell

asserts that decision was not an “adverse employment action”for purposes ofthe

FMLA. Dell primarily relies on cases decided before the Supreme Court’s

decision in Burlington Northern & Northern Santa Fe Railway Co. v. White, 548

U.S. 53 (2006). Burlington Northern involved an employee’s retaliation claims

under Title VII of the Civil Rights Act of 1964. Id. at 59. The Supreme Court

held that an employee suffers an “adverse employment action” for purposes of

Title VII if “a reasonable employee would have found the challenged action

materially adverse, which in this context means it well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” Id.

at 68 (internal quotations omitted). In so holding, the Court rejected the

standards previously employed by several circuits, including this one. See id. at

60-61, 68. 

While other employment statutes are instructive for the standard under

the FMLA, they are not dispositive. See Faris v. Willaims WPC-I, Inc., 332 F.3d

316, 321 (5th Cir. 2003). When referencing other statutes, “[w]e must carefully
No. 07-51159

3

In Hunt, the court left open the possibility that “the FMLA may cover a broader range

of employment actions than the anti-retaliation provision in Title VII” in light ofthe applicable

Department of Labor regulations. See Hunt, 277 F.3d at 669-70. While the standards might

not be identical, we have never interpreted the FMLA as covering a narrower range of

employment actions than Title VII. 

4 Because this case involves a substantial loss of compensation, we need not address

whether and what types of “petty and trivial actions” can be deemed non-adverse as a matter

of law. 

9

consider whether there are aspects of [the statutes] that might encourage

differing protections and interpretations.” Id. Prior to Burlington Northern,this

court applied the same “adverse employment action” analysis to FMLA andTitle

VII claims. Compare Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999)

(applying the “ultimate employment decision” standard to a Title VII retaliation

claim), with Hunt, 277 F.3d at 769-70 (applying the “ultimate employment

decision” standard to an FMLA retaliation claim). Our consideration of the

statutes before Burlington Northern revealed no reasons to apply different

interpretations.3 Moreover, the Seventh Circuit, the only other circuit to address

this issue, has applied Burlington Northern in the FMLA context. See Breneisen

v. Motorola, Inc., 512 F.3d 972, 979 (7th Cir. 2008). Accordingly, we conclude

Burlington Northern applies to retaliation claims under the FMLA. 

McArdle offered sufficient evidence to show he suffered an adverse

employment action. Whether a reasonable employee would view the challenged

action as materially adverse involves questions of fact generally left for a jury

to decide. See Burlington Northern, 548 U.S. at 71-73; see also Crawford v.

Carroll, 529 F.3d 961, 973 n.13 (11th Cir. 2008) (“Burlington also strongly

suggests that it is for a jury to decide whether anything more than the most

petty and trivial actions against an employee should be considered ‘materially

adverse’to him and thus constitute adverse employment actions.”).4In this case,

a jury could certainly conclude the potential loss of $20,000 in annual

compensation was materially adverse. 
No. 07-51159

10

Finally, McArdle met his burden of showing Dell did not return the

account because he took FMLA leave. The district court granted summary

judgment to Dell because “[t]here is no evidence that Dell treated McArdle less

favorable than other similarly situated employees.” However, McArdle can

make a prima facie showing either through indirect proof of disparate treatment

or through direct proof of animus. See Hunt, 277 F.3d at 768. McArdle concedes

that he did not offer comparative evidence. Instead, he argues he offered direct

proof of retaliatory animus and that the district court erroneously overlooked

that evidence. 

McArdle primarily points to two pieces of evidence to establish causation.

The first piece of evidence is an e-mail sent by his immediate supervisor, Brad

Lambert, to human resources representative John Adcock on August 24, 2004.

August 24, 2004 is also the day McArdle filed for leave, the day Dell granted the

request, and the day his leave period began. In the e-mail, Lambert expressed

concern about “Brian McArdle’s time away,” particularly that McArdle’s “extra

curricular” activities, such as golfing and a trip to Las Vegas, exacerbated his

back condition and necessitated additional time off. He asked for Adcock’s

directions and whether “[a]t some point, do we have the right to say his extra

curricular activities are a concern if they interfere with his job performance?”

The second piece of evidence is Adcock’s deposition testimony, stating he thought

Lambert, in his e-mail, “was questioning whether [McArdle’s missed time] was

or wasn’t[legitimate]. He was unsure.” Adcock also testified that Lambert “was

frustrated that he had a rep that was missing time and wanted to figure out how

he could help him one way or the other.” 

Analogous cases have held that such evidence is sufficient to establish

retaliatory causation. In Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st

Cir. 1998),the First Circuit held a supervisor’s warnings that an employee “was

taking ‘too much time off’” and expressions of concern regarding the employee’s
No. 07-51159

11

absenteeism were sufficient to show causation in an FMLA retaliation case. Id.

at 165. Similarly, in this case, there is evidence that McArdle’s supervisor was

“frustrated” with his absences and expressed concern about his attendance. 

McArdle’s supervisor even did so in an e-mail that specifically referenced his

eventual request for FMLA leave. Further, Rachid v. Jack in the Box, Inc., 376

F.3d 305 (5th Cir. 2004), involved an employee who alleged she experienced age

discrimination in violation of the Age Discrimination in Employment Act. The

court held that evidence that her supervisor “repeatedly made ageist comments

to and about” the plaintiff “easily established” a prima facie case of

discrimination. Id. at 313. Although we recognize there is no evidence of

repeated comments regarding McArdle’s absences, the evidence of Lambert’s

negative feelings towards the absences creates an inference of causation. 

There is additional evidence that could support a jury’s finding in

McArdle’s favor. It is undisputed that Dell decided not to return the account

either when McArdle was on leave or shortly after he returned. Shackelford v.

DeLoitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999) (“[T]he combination

of suspicious timing with other significant evidence of pretext, can be sufficient

to survive summary judgment.”). Moreover, there is evidence that Dell returned

accounts to another employee upon his return from an extended absence --

showing that Dell may have deviated from its usual custom in McArdle’s case.

We thus conclude plaintiff met his burden at summary judgment of

demonstrating a prima facie case of retaliation with respectto the eBay account.

The district court concluded Dell offered the following legitimate, nonretaliatory reasons for not returning the eBay account to McArdle: 

(1) eBay was a high activity account that required support during

McArdle’s absence; (2) moving the account and its quota from

McArdle to Perry brought McArdle’s quota in line with Perry’s

quota; and (3) Lambert had received complaints from eBay
No. 07-51159

12

regarding McArdle. . . . The evidence also shows eBay was happy

with Perry and moving the account back to McArdle would have

bothered eBay. 

The district court, applying the “pretext-plus” standard, then held that “despite

Plaintiff’s various attempts to raise a fact issue” regarding the falsity of the

proferred reasons, McArdle failed to prove that retaliation was the real reason

for not returning the eBay account. 

We first note the district court erred in applying the pretext-plus standard

in light of the Supreme Court’s decision in Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000). The pretext-plus standard generally

required plaintiffs to introduce evidence that the employer’s asserted nonretaliatory justification was false and that the employer’s real reason for taking

the adverse action was retaliatory. See Chaffin v. John H. Carter Co., 179 F.3d

316, 320 (5th Cir. 1999). Reeves rejected that standard. See Reeves, 530 U.S. at

146-49. After Reeves, “a plaintiff’s prima facie case, combined with sufficient

evidence to find that the employer’s asserted justification is false, may permit

the trier of fact to conclude that the employer unlawfully [engaged in

retaliation].” Id. at 149. Upon such a showing, summary judgment for the

employer is appropriate only if there are “unusual circumstances” that would

preclude the trier of fact from finding for the plaintiff. See id.; Blow v. City of

San Antonio, 236 F.3d 293, 298 & n. 3 (5th Cir. 2001). 

McArdle offered evidence that establishes a genuine issue of the reasons’

falsity. First, the fact that eBay was a high activity account that demanded

attention during McArdle’s leave explains only why it needed to be transferred

in his absence; that reason provides no explanation for why Dell did nottransfer

the account back to McArdle when he returned. Second, although Dell claims

it received complaints about McArdle from eBay, when asked via interrogatory

who complained about McArdle’s performance, Dell’s response did not include
No. 07-51159

13

eBay—even though other customers, such as Bear Stearns, were listed. A jury,

viewing the inconsistency between Dell’s interrogatory response and its current

argument, could doubt the veracity of its reason. Finally, a jury could choose to

disbelieve the remaining reasons in light of evidence that, approximately four

months after McArdle returned from leave, Dell again transferred the eBay

account, this time from Perry to another sales representative. Additional

movement of the eBay account casts doubt on Dell’s explanations that Perry

needed the eBay account for quota equality, that Dell wanted to avoid undue

turnover among account representatives, and that “moving the account [from

Perry] would have bothered eBay.” 

2. Retaliatory Termination

McArdle next alleges Dell terminated his employment in retaliation for

taking FMLA leave. Even assuming McArdle met his burden of demonstrating

a prima facie case of retaliation regarding his termination, we find no error in

the district court’s grant of summary judgment to Dell on his retaliatory

termination claim. Dell presented evidence that McArdle was fired for poor

performance. Shortly after his transfer to CBG, his supervisor, Nichole

Gallagher, placed him on a PIP because of performance issues he was

experiencing. Gallagher explained that she terminated McArdle’s employment

because “[t]here was ongoing poor performance in terms of customer experience,

following-through on the basics of the job in order to be successful and . . .

attendance issues.” She testified that customers complained about his

performance, he failed to file timely reports, his phone talk-time was low, and

his attitude towards customers and management was poor. 

McArdle acknowledged in his deposition that he actually had those

performance-related issues. Because McArdle does not argue this case should
No. 07-51159

5 We have recognized the mixed-motive framework’s applicability in FMLA cases. See

Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 334-35 (5th Cir. 2005). However, McArdle

did not argue before the district court nor does he argue on appealthat Dell acted with a mixed

motive. Accordingly, we do not apply a mixed-motive analysis in this case. See Nasti v. Ciba

Specialty Chems. Corp., 492 F.3d 589, 595 (5th Cir. 2007). 

14

be analyzed under a mixed-motive framework,5 he must “produce evidence

rebutting all of [the] defendant’s proferred nondiscriminatory reasons.”

Machinchick v. RB Power, Inc., 398 F.3d 345, 351 (5th Cir. 2005). He conceded

that he had a poor attitude, was the subject of customers’ complaints, and did

not do his work in a timely manner. For example, McArdle testified that

towards the end of his time at Dell, his “attitude went to shit with Nichole and

the [CBG] team” and that “I sucked there for a while at the end.” He also

acknowledged that a customer complained about him, even though his PIP listed

“[n]o future issues from . . . customers” as a goal. Finally, McArdle testified that,

although he “felt . . . defeated before [he] started” at CBG, he agreed that he “did

have a lot of other issues that went along with it, and, you know, Nichole

documented them all, and those are accurate.” In light of that evidence,

McArdle failed to show that all of Dell’s proferred legitimate, non-retaliatory

reasons were pretextual. Accordingly, the district court properly granted

summary judgment to Dell on the retaliatory termination claim. 

IV. CONCLUSION

For the foregoing reasons, we affirm in part and reverse in part the

judgment ofthe district court and remand this matter for proceedings consistent

with this opinion. 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.