UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ISIDRO MENDIOLA, 

 Plaintiff - Appellant, 

v. 

EXIDE TECHNOLOGIES; RANDALL 

BATES, 

 Defendants - Appellees. 

No. 18-3248 

(D.C. No. 6:17-CV-01097-JWB) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before EID, KELLY, and CARSON, Circuit Judges. 

_________________________________ 

Isidro Mendiola sued his former employer, Exide Technologies, and supervisor, 

Randall Bates, asserting various claims arising from termination of his employment. The 

district court granted summary judgment in favor of Defendants. Mr. Mendiola appeals, 

challenging the district court’s entry of judgment on his claim that Defendants retaliated 

against him for taking leave under the Family Medical Leave Act, 29 U.S.C. §§ 2601-54 

(“FMLA”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 6, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

BACKGROUND 

The following facts are not disputed unless otherwise stated: 

 Exide operates a battery manufacturing plant in Salina, Kansas. Mr. Mendiola 

worked at the plant for 37 years before Exide terminated his employment in 

June 2016. Throughout his employment, Mr. Mendiola worked as an operator in the 

plant’s Formation Department, where he served in various positions on the plant’s 

manufacturing lines. Mr. Bates was a lead and later the supervisor of the Formation 

Department from 2014 through Mr. Mendiola’s termination. Exide’s production 

standards increased during Mr. Mendiola’s employment. 

In December 2015, Mr. Mendiola was unexpectedly hospitalized for an 

infection that required foot surgery. He requested FMLA leave for his hospital stay 

and recovery, and Exide granted his request. Mr. Mendiola returned to work on 

March 13, 2016. 

 Both before and after his leave, Mr. Bates received complaints from 

Mr. Mendiola’s co-workers that Mr. Mendiola was falling behind on the 

manufacturing line and hampering production. Mr. Bates monitored Mr. Mendiola’s 

performance after first receiving these complaints, and concluded Mr. Mendiola was 

having difficulty keeping up with the pace of the manufacturing lines and 

maintaining the quality of the product. Mr. Bates coached Mr. Mendiola multiple 

times before his FMLA leave about the need to improve. He also moved 

Mr. Mendiola to different positions on the manufacturing lines, trying to find one he 

could perform adequately. 
3 

 In Mr. Mendiola’s August 2015 annual review, four months before his FMLA 

leave, Shawn Hogan, the Formation Department Manager and Mr. Mendiola’s former 

supervisor, advised Mr. Mendiola that he was only partially meeting performance 

expectations in the quality and quantity of his work. In the written comments to this 

evaluation, he informed Mr. Mendiola that he needed to improve the quality of his 

work and learn new positions and how to take advice from co-workers. Before the 

2015 evaluation, Mr. Mendiola’s annual reviews had generally indicated that his 

performance met expectations, while also identifying areas for improvement.1

 

After Mr. Mendiola returned from leave in mid-March 2016, Mr. Bates and 

Mr. Hogan both observed that he was having trouble keeping up with the pace of 

production and meeting production and quality standards. Mr. Bates coached 

Mr. Mendiola on the need to improve, arranged for additional training for him, and 

again tried him at different positions on the plant’s three manufacturing lines. 

Mr. Hogan also met with Mr. Mendiola and suggested that he apply for a 

less-demanding position in Exide’s adjacent Distribution Center. Mr. Mendiola 

refused because he was happy in the Formation Department. Mr. Hogan testified that 

he told Mr. Mendiola at this meeting that he should move to the Distribution Center 

 1

 In his 2013 and 2014 annual reviews, for example, areas for improvement 

included Mr. Mendiola getting faster in change-overs, working on keeping the 

manufacturing line full and maintaining the quality of the product, and doing a better 

job of listening to and following instructions. Mr. Mendiola was also rated as only 

partially meeting performance expectations in the quantity of his work in 2013. 
4 

because he could no longer keep up in the Formation Department, but Mr. Mendiola 

denies this aspect of their conversation. 

On April 18, 2016, Mr. Bates met with Mr. Mendiola again to discuss his 

performance issues. In a follow-up email to Mr. Hogan and Exide’s HR department, 

Mr. Bates reported that he notified Mr. Mendiola at the meeting that he had not met 

production or quality standards at any of his recent positions in the Formation 

Department and that disciplinary action would be taken if he did not meet these 

standards at his next position. Five weeks later, on May 24, Mr. Bates and 

Mr. Hogan met with Mr. Mendiola and delivered a written notice informing him that 

he had not met production and quality standards at his most recent position, that he 

had not succeeded in performing any role in the Formation Department, and that his 

poor performance had created downtime and costs for the company. The notice 

further informed Mr. Mendiola that this job performance could no longer be tolerated 

and that “immediate improvement [was] required to avoid termination.” Aplt. App. 

Vol. I at 119. Shortly thereafter, it is undisputed that Mr. Mendiola was responsible 

for production problems and downtime on the manufacturing line to which he had 

been assigned. On June 7, Exide terminated Mr. Mendiola’s employment, effective 

June 15, 2016, citing his inability to meet performance standards.2

 2

 We also note that at some point after his termination, Mr. Mendiola applied 

for Social Security disability benefits, asserting he was physically unable to work as 

of June 7, 2016, his last day of work with Exide. The Social Security Administration 

found Mr. Mendiola was disabled as of this date and awarded him benefits. 
5 

Mr. Mendiola filed this action against Exide and Mr. Bates, alleging claims 

under the FMLA and Age Discrimination in Employment Act. He brought this 

appeal after the district court granted Defendants’ motion for summary judgment on 

all claims. 

DISCUSSION

In his appellate brief, Mr. Mendiola challenges only the district court’s grant of 

summary judgment against his FMLA retaliation claim. As a result, we limit our review 

to this issue. See, e.g., Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) 

(appellant generally forfeits appellate review of issues omitted from opening brief). 

A. Standard of Review 

“[W]e review summary judgment decisions de novo, applying the same legal 

standard as the district court.” Talley v. Time, Inc., 923 F.3d 878, 893 

(10th Cir. 2019) (internal quotation marks and alterations omitted). Under this 

standard, summary judgment is granted when “the movant shows that 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). “A dispute is genuine when the evidence is 

such that a reasonable jury could return a verdict for the nonmoving party, and a fact 

is material when it might affect the outcome of the suit under the governing 

substantive law. Bird v. W. Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016) 

(internal quotation marks and alterations omitted). “[W]e view the evidence and 

draw reasonable inferences therefrom in the light most favorable to the nonmoving 

party.” Talley, 923 F.3d at 893 (internal quotation marks omitted). 
6 

B. FMLA Retaliation Claim 

“Retaliation claims under the FMLA are subject to the burden-shifting analysis of 

McDonnell Douglas.” Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170 

(10th Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 

(1973)). “Under this analysis, the plaintiff bears the initial burden of establishing a prima 

facie case of retaliation, by proving that (1) [he] engaged in a protected activity; (2) the 

defendant took an action that a reasonable employee would have found materially 

adverse; and (3) there exists a causal connection between the protected activity and the 

adverse action.” Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1318 (10th Cir. 2017) 

(internal quotation marks and alterations omitted). If the plaintiff successfully asserts a 

prima facie retaliation case, then the burden shifts to the defendant to “offer a legitimate, 

non-retaliatory reason for the employment action. The plaintiff then bears the ultimate 

burden of demonstrating that the defendant’s proffered reason is pretextual.” Metzler, 

464 F.3d at 1170 (citation omitted). 

 Mr. Mendiola claimed Defendants violated the FMLA by terminating his 

employment in retaliation for him taking FMLA leave. The district court granted 

summary judgement against this claim, concluding Mr. Mendiola had established a prima 

facie case of retaliation, but had not met his burden of demonstrating that Defendants’ 

asserted non-retaliatory reason for discharging him—poor job performance—was 

pretextual. 
7 

 For purposes of appeal, we assume Mr. Mendiola established a prima facie case of 

retaliation.3 We also conclude Defendants met their burden of showing a legitimate, 

non-retaliatory reason for discharging Mr. Mendiola, namely his failure to meet job 

performance standards. As a result, to avoid summary judgment Mr. Mendiola must raise 

a genuine issue of fact as to pretext by presenting evidence that would allow a 

reasonable jury to conclude that Defendants did not in fact discharge him because of 

poor job performance. He may make this showing by revealing “such weaknesses, 

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s 

proffered legitimate reasons for its action that a reasonable factfinder could rationally 

find them unworthy of credence and hence infer that the employer did not act for the 

asserted non-[retaliatory] reasons.” Dewitt, 845 F.3d at 1307 (internal quotation marks 

omitted). 

 Mr. Mendiola has not met this burden. He claims the evidence shows that his job 

performance was consistent and satisfactory throughout his long career at the plant, 

including before and after his FMLA leave. But the record shows that Defendants 

became dissatisfied with his job performance no later than August 2015, when 

Mr. Mendiola received a subpar annual evaluation months before his unexpected surgery 

and FMLA leave. This evidence does not necessarily negate the possibility that 

 3

 Defendants argued below and again on appeal that Mr. Mendiola did not 

establish a prima facie retaliation case because he failed to demonstrate a causal 

connection between his FMLA leave and his discharge. We do not address this 

question because we affirm the district court’s summary judgment decision on other 

grounds. 
8 

Defendants’ subsequent reliance on his poor job performance was a pretext for FMLA 

retaliation, see Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1218-19 (10th Cir. 2002), 

but it does not create a genuine issue as to pretext when, as in this case, there is simply no 

evidence suggesting that Defendants’ “criticism of [Mr. Mendiola] was inflated and 

exaggerated as a means of retaliating against [him],” Metzler, 464 F.3d at 1175 (internal 

quotation marks and alterations omitted). See also Dewitt, 845 F.3d at 1307 (“Mere 

conjecture that the employer’s explanation is a pretext for intentional discrimination 

is an insufficient basis for denial of summary judgment.” (internal quotation marks 

and alterations omitted)). 

 In addition, even viewed in the light most favorable to Mr. Mendiola, the evidence 

if anything tends to show that Defendants were looking for ways to maintain 

Mr. Mendiola’s employment with the company rather than end it. Mr. Mendiola does not 

dispute, for example, that Mr. Bates coached him on his performance problems before 

and after his leave, that Mr. Bates and/or Mr. Hogan met with him multiple times after he 

returned from leave to discuss his performance problems, that Mr. Bates offered him 

additional training and moved him to different positions within the Formation 

Department, and that Mr. Hogan suggested that Mr. Mendiola apply for a less-demanding 

position in the company’s Distribution Center. A reasonable jury could not infer pretext 

from this evidence. Nor are we persuaded that a reasonable jury could find Defendants’ 

explanation for discharging Mr. Mendiola was pretextual because the company opted to 

respond to its long-time employee’s performance issues in this manner instead of issuing 

formal written warnings to him pursuant to the non-binding progressive discipline policy 
9 

in its employee handbook. See Fassbender v. Correct Care Sols., LLC, 890 F.3d 875, 

889 (10th Cir. 2018) (“[T]he mere fact that an employer failed to follow its own internal 

procedures does not necessarily suggest that . . . the substantive reasons given by the 

employer for its employment decision were pretextual.” (internal quotation marks 

omitted)). 

 To the extent Mr. Mendiola seeks to demonstrate pretext by disputing Defendants’ 

assessment of his job performance, we note that the issue is not whether Defendants were 

correct in their assessment, but rather whether they honestly believed he could no longer 

meet performance standards in the Formation Department and acted in good faith on this 

belief. See Hiatt v. Colo. Seminary, 858 F.3d 1307, 1316 (10th Cir. 2017). Mr. Mendiola 

has not come forward with evidence from which a reasonable jury could find that 

Defendants lacked such a belief.4 Accordingly, considering the totality of the evidence, 

we conclude there is no genuine dispute as to the authenticity of Defendants’ 

legitimate, non-retaliatory reason for terminating Mr. Mendiola’s employment. 

Defendants were entitled to summary judgment. 

 AFFIRMED. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge 

 4

 The record does not support Mr. Mendiola’s suggestions that Mr. Bates and 

Mr. Hogan were inconsistent in testifying about his job performance.