United States Court of Appeals

for the Fifth Circuit

No. 20-11140

James R. Hester, 

Plaintiff—Appellant,

versus

Bell-Textron, Incorporated, 

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:20-CV-514

Before Dennis and Engelhardt, Circuit Judges, and Hicks,* Chief 

District Judge.

Kurt D. Engelhardt, Circuit Judge:

The district court granted Bell-Textron, Incorporated’s (“BellTextron”) Rule 12(b)(6) motion to dismiss James R. Hester’s first amended 

complaint. Hester now appeals that dismissal. For the following reasons, we

REVERSE and REMAND for further proceedings.

* Chief District Judge for the Western District of Louisiana, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

August 23, 2021

Lyle W. Cayce

Clerk

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I.

Hester was employed by Bell-Textron from August 1997 through 

December 2018. During that time, he worked as an engineer, engineer 

technician, quality inspector, technical publications writer, and Federal 

Aviation Administration Organization Designation Authorization unit 

member. Hester suffers from epilepsy and glaucoma. As a result of his 

epilepsy, he suffered at least five grand mal seizures between September 2014 

and April 2017. Hester’s wife suffers from stage-four cancer, and Hester 

assists her with comfort and attending medical appointments.

In March 2017, Hester began reporting to Vance Cribb, who was 

aware of Hester’s medical history, including his seizures and the symptoms 

associated with his glaucoma and epilepsy. In June 2018, Cribb issued Hester 

the first poor performance review of Hester’s career with Bell-Textron. On 

October 11, 2018, Cribb issued Hester a final warning related to a part that 

broke during a testing procedure. Hester protested the final warning to the 

point of being escorted off work premises and was instructed by Cribb to 

apply within the next 24 hours for an “employee assistance program” based 

on his medical conditions. Hester contacted a Bell-Textron human resources 

employee, who suggested that Hester apply for short-term disability 

coverage. Hester applied for and was granted short-term disability coverage 

related to his epilepsy and glaucoma. He additionally applied for and was 

granted leave under the Family and Medical Leave Act (“FMLA”) based on 

those same medical conditions.

A Bell-Textron human resources employee fired Hester by telephone 

on December 6, 2018,1 during the pendency of his FMLA leave. The human 

resources employee cited Hester’s “poor mid-year performance review from 

1 It is important to note that, according to the first amended complaint, Hester’s 

firing occurred almost two months after the final warning and his protest of it; and six

months after the poor performance review cited by the employee who fired Hester.

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June 2018” as a reason for the firing and stated that “it was a good time” for 

Hester to separate from the company. Hester called MetLife Insurance 

immediately after his firing and was informed that he still had 5.4 weeks of 

FMLA leave remaining for 2018 and would have an additional 12 weeks of 

FMLA leave in 2019 to care for his own medical needs and those of his wife.

Hester then filed the underlying lawsuit. Through his first amended 

complaint, Hester alleged two FMLA claims against Bell-Textron: (1) 

discriminatory termination during the pendency of his FMLA leave; and (2) 

interference with his right of reinstatement to his position at the end of his 

FMLA leave. Hester alleged that he was FMLA-eligible based on his fulltime employment with Bell-Textron for more than one year, his serious 

health conditions of glaucoma and epilepsy, and his wife’s serious health 

condition of cancer. He further alleged that Bell-Textron was subject to the 

FMLA, because it employed at least 50 employees within a 75-mile radius of 

his work site for at least 20 work weeks in the prior or current calendar year.

Bell-Textron filed a Rule 12(b)(6) motion to dismiss Hester’s first 

amended complaint, which the district court granted. The district court 

entered a final judgment dismissing the case with prejudice. This appeal 

followed.

II.

Our review of a district court’s order granting a Rule 12(b)(6) motion 

to dismiss is de novo. IberiaBank Corp. v. Ill. Union Ins. Co., 953 F.3d 339, 345 

(5th Cir. 2020). We accept all factual allegations as true and construe the 

facts in the light most favorable to the plaintiff. Alexander v. Verizon Wireless 

Servs., L.L.C., 875 F.3d 243, 249 (5th Cir. 2017).

A complaint must contain “a short and plain statement of the claim 

showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “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 

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face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible if the 

plaintiff alleges facts that allow a court “to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.” Id. “We do not accept as 

true conclusory allegations, unwarranted factual inferences, or legal 

conclusions.” Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting 

Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)).

III.

A. Discrimination Claim

The district court dismissed Hester’s discrimination claim for failure 

to state a prima facie claim. 

To state a prima facie claim for discrimination or retaliation under the 

FMLA, the plaintiff must allege that “(1) he is protected under the FMLA; 

(2) he suffered an adverse employment decision; and either (3a) that the 

plaintiff was treated less favorably than an employee who had not requested 

leave under the FMLA; or (3b) the adverse decision was made because of the 

plaintiff’s request for leave.” Bocalbos v. Nat’l W. Life Ins. Co., 162 F.3d 379, 

383 (5th Cir. 1998). If the plaintiff states a prima facie claim, “the burden 

shifts to the employer to articulate a legitimate nondiscriminatory or 

nonretaliatory reason for the termination.” Id. “Once the employer has done 

so, the plaintiff must show by a preponderance of the evidence that the 

employer’s reason is a pretext for discrimination or retaliation.” Id.

There is no dispute that Hester has alleged a prima facie 

discrimination claim under the first and second elements of Bocalbos; the 

parties disagree on whether Hester has pleaded element (3b) by alleging

causation between Bell-Textron’s termination decision and his FMLA leave 

request. The district court found that Hester failed to allege causation, 

because he pleaded nothing to suggest that Bell-Textron impermissibly 

terminated him beyond mere timing. The district court further found that 

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Hester alleged rationales for Bell-Textron’s termination decision that were 

wholly unrelated to the exercise of his FMLA rights: a poor performance 

review, a workplace protest of a final warning from his supervisor, and an

ejection from work premises.

We have stated the following regarding a plaintiff’s prima facie burden 

of demonstrating causation:

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. Moreover, the plaintiff does not have to show 

that the protected activity is the only cause of her termination. 

The plaintiff is, however, required to show that the protected 

activity and the adverse employment action are not completely 

unrelated.

Mauder v. Metro. Transit Auth. of Harris Cnty., Tex., 446 F.3d 574, 583 (5th 

Cir. 2006) (internal citations omitted).

Hester sufficiently alleges a causal link between his termination and 

request for FMLA leave. There is certainly “temporal proximity” between 

Hester’s termination and his FMLA leave, because Bell-Textron terminated 

him in the middle of his FMLA leave. Id. Moreover, the fact that BellTextron provided non-FMLA reasons for Hester’s termination is not fatal to 

a prima facie causation showing, because Hester is not required to allege that

his protected FMLA activity was the sole cause of his termination. Id. Finally, 

Bell-Textron did not fire Hester at the time of his pre-leave workplace 

performance issues in June and October 2018, but rather waited until 

December 2018 to do so—approximately two months into Hester’s FMLA 

leave. As a pleading matter, the alleged timeline of events indicates that BellTextron’s termination decision was not “completely unrelated” to the

exercise of his FMLA rights. Id.

For the foregoing reasons, the district court erred in finding that 

Hester’s discrimination claim failed under element (3b) of Bocabos. 162 F.3d 

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at 383. Accordingly, we reverse the district court’s Rule 12(b)(6) dismissal of 

that claim and remand for further proceedings.

B. Reinstatement Interference Claim

The district court dismissed Hester’s reinstatement interference 

claim for failure to state a prima facie claim.

“It [is] unlawful for any employer to interfere with, restrain, or deny 

the exercise of or the attempt to exercise, any right” provided under the 

FMLA. 29 U.S.C. § 2615(a)(1). To state a prima facie FMLA interference 

claim, a plaintiff must allege that “(1) he was an eligible employee; (2) his 

employer was subject to FMLA requirements; (3) he was entitled to leave; 

(4) he gave proper notice of his intention to take FMLA leave; and (5) his 

employer denied him the benefits to which he was entitled under the 

FMLA.” Caldwell v. KHOU-TV, 850 F.3d 237, 245 (5th Cir. 2017). Once the

plaintiff states a prima facie claim, it is the employer’s burden on summary 

judgment to articulate “a legitimate non-discriminatory reason for the 

employment action at issue,” which then may be rebutted if “the plaintiff 

raise[s] an issue of material fact that the employer’s proffered reason was 

pretextual.” Id.

An employee generally has the right to be reinstated to his previous 

position or an equivalent position upon his return from FMLA leave. 29 

U.S.C. § 2614(a)(1)(A)–(B). However, the FMLA does not impose a strict 

liability standard requiring employers, in all circumstances, to reinstate 

employees following their FMLA leave. Shirley v. Precision Castparts Corp., 

726 F.3d 675, 681–82 (5th Cir. 2013). Under the FMLA, an employee is only 

entitled to those rights to which he would have been entitled had he not taken 

FMLA leave. Id. at 681 (citing 29 U.S.C. § 2614(a)(3)(B)). Accordingly, an 

employee claiming a violation of his right to reinstatement “must actually be 

entitled to the position to which he seeks reinstatement.” Id. at 682. “Thus, 

although denying an employee the reinstatement to which he is entitled 

generally violates the FMLA, denying reinstatement to an employee whose 

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right to restored employment had already been extinguished—for legitimate 

reasons unrelated to his efforts to secure FMLA leave—does not violate the 

[FMLA].” Id. (emphasis in original).

There is no dispute that Hester has alleged a prima facie interference 

claim under the first four elements of Caldwell; the parties disagree on the 

fifth element. Citing our decision in Shirley, the district court stated that 

Caldwell’s fifth element required Hester to allege that Bell-Textron would 

not have terminated him had he not taken FMLA leave. Because Hester 

failed to do so, the district court found that Hester failed to state an 

interference claim.

The district court erred by applying Shirley—a summary judgment 

case—to a Rule 12(b)(6) motion to dismiss. Shirley explained that the 

employer has an evidentiary burden on summary judgment to prove that the 

plaintiff would have lost his position even if he had not taken FMLA leave. 

Id. at 682 (citing 29 C.F.R. § 825.216(a)). If the employer satisfies this 

burden, then the plaintiff must present evidence “sufficient to raise a jury 

question that [the employer’s] stated reason for firing him . . . was 

pretextual.” Id. at 683. By requiring Hester to allege that he would not have 

been terminated had he not taken FMLA leave, the district court erroneously 

applied the employer’s evidentiary burden on summary judgment as a 

pleading burden that the plaintiff must satisfy to survive a Rule 12(b)(6) 

motion to dismiss. See id. at 682–83; see also Caldwell, 850 F.3d at 245.

To plead the fifth element of a prima facie interference claim, Hester 

was required to allege that Bell-Textron denied him a benefit to which he was 

entitled under the FMLA. Caldwell, 850 F.3d at 245. He did exactly that by 

alleging that Bell-Textron interfered with his right to reinstatement by failing 

to restore him to his position upon the termination of his FMLA leave. See

29 U.S.C. § 2614(a)(1).

Bell-Textron arguesthat Hester pleaded himself out of an interference 

claim by alleging several legitimate justifications for his termination, 

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including the poor performance review, workplace protest of a final warning 

from his supervisor, and being escorted off work premises. Bell-Textron 

contends that Hester’s allegations show that he would have been fired even 

if he had not taken FMLA leave; thus, he was not entitled to reinstatement, 

and his interference claim fails under Caldwell’s fifth element.

We disagree. It is true that “denying reinstatement to an employee 

whose right to restored employment had already been extinguished—for 

legitimate reasons unrelated to his efforts to secure FMLA leave—does not 

violate the [FMLA].” Shirley, 726 F.3d at 682. However, Hester does not 

allege that Bell-Textron fired him at the time of his poor performance review 

in June 2018. Nor does he allege that Bell-Textron fired him at the time of his 

final warning from his supervisor, workplace protest, and ejection from work 

premises in October 2018. Instead, Hester clearly alleges that Bell-Textron 

first notified him of his termination in December 2018—approximately two 

months after his FMLA leave commenced and while he still had several 

weeks of leave remaining. Moreover, Hester alleges that immediately after 

his ejection from the workplace, he was instructed by his supervisor to apply 

for an “employee assistance program” based on his medical conditions. BellTextron’s human resources department subsequently aided Hester in 

gaining approval for FMLA leave. As a pleading matter, the allegation that 

Bell-Textron directed Hester to an employee assistance program and guided 

him through the FMLA application process—rather than simply firing him 

outright on the basis of poor workplace performance—indicates that 

Hester’s right to restored employment was still intact when he secured

FMLA leave.

For these reasons, the district court erred finding that Hester’s 

discrimination claim failed under the fifth element of Caldwell. 850 F.3d at 

245. Accordingly, we reverse the district court’s Rule 12(b)(6) dismissal of 

that claim and remand for further proceedings.

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IV.

For the foregoing reasons, we REVERSE the district court’s Rule 

12(b)(6) dismissal of Hester’s FMLA interference and discrimination claims 

and REMAND for further proceedings.

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