IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20594

NICOLE L. RYDER, 

 Plaintiff - Appellant

v.

SHELL OIL COMPANY; SHELL EXPLORATION & PRODUCTION 

COMPANY, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CV-726

Before DAVIS, JONES, and GRAVES, Circuit Judges.

PER CURIAM:*

Nicole Ryder sued her former employer, Shell Oil Company (“Shell”), 

claiming that it interfered with her ability to take leave in violation of the 

Family and Medical Leave Act (“FMLA”) and breached the terms of her 

employment contract. Shell’s motion for summary judgment on all claims was 

granted by the district court. 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

June 10, 2016

Lyle W. Cayce

Clerk

 Case: 15-20594 Document: 00513542962 Page: 1 Date Filed: 06/10/2016
No. 15-20594

2

I.

On August 1, 2011, Ryder and Shell entered into a Retention Agreement, 

under which Ryder agreed to remain employed at Shell until July 31, 2013 in 

exchange for a cash payment. As part of the agreement, Ryder agreed to meet 

Shell’s expectations for her performance, which included requesting vacation 

time in advance and notifying her supervisor of tardiness and absenteeism.

In 2012, Ryder was repeatedly absent and tardy without proper notice to 

her supervisor, Dawn Suggs. In early 2013, Suggs placed Ryder on a 

performance improvement plan (PIP); despite this warning, Ryder continued to 

miss work without notice to Suggs, who warned Ryder in writing that further 

incidents of job-related problems would result in termination. 

Meanwhile, in the Spring of 2013, Ryder learned that she was pregnant. 

She missed four days of work in May due to morning sickness. At the prompting 

of a Human Resources manager, Ryder contacted Shell’s third-party leave 

administrator, Reed Group, to initiate her request for leave under the FMLA. 

The Reed Group provided Ryder with the FMLA paperwork, which indicated 

that leave may be delayed or denied if the paperwork was returned late or was 

incomplete.

Nonetheless, neither Ryder nor her doctor provided the appropriate 

documentation to the Reed Group to support her May absences. The FMLA form 

eventually submitted by Ryder included nothing about absences or morning 

sickness. In fact, Ryder’s doctor indicated, on the medical certification form 

provided by Ryder, that Ryder was medically capable of performing her job 

duties and no medical necessity existed for Ryder to take any intermittent leave 

prior to delivery. Shell denied Ryder’s FMLA request. 

On July 8, 2013, Ryder was terminated for failing to meet Shell’s 

performance expectations. 

 Case: 15-20594 Document: 00513542962 Page: 2 Date Filed: 06/10/2016
No. 15-20594

3

II. 

We review the district court’s grant of summary judgment de novo.1 If the 

record shows that there is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law, we must affirm.2

Ryder first argues that Shell interfered with her FMLA rights when it 

denied her request for leave for her four absences in May. To prevail on this 

claim, Ryder must show that she was entitled to FMLA leave.3 She has not. 

Under the FMLA, an employer may require medical certification to support an 

employee’s request for leave; if the employee fails to provide that certification, 

the employee is not entitled to FMLA leave.4 Shell requested medical 

certification, and Ryder returned an incomplete form that did not address the

absences at issue. Further, Ryder’s doctor indicated that Ryder was able to work 

on the dates in question despite her pregnancy. Because Ryder failed to show 

that she was eligible for FMLA leave in May, 2013, Shell is entitled to a 

summary judgment on the FMLA interference claim.

Ryder also contends that Shell unlawfully breached the Retention 

Agreement by failing to pay her the retention bonus due under the parties’ 

Agreement. To recover on a breach of contract claim under Texas law, the 

plaintiff must establish, in part, “performance or tendered performance by the 

plaintiff.”5

Ryder has not established that she performed under the contract. The 

Retention Agreement specifically required that Ryder must “remain an 

 

1 Templet v. HydroChem, Inc., 367 F.3d 473, 477 (5th Cir. 2004); Price v. Fed. Exp. Corp., 

283 F.3d 715, 719 (5th Cir. 2002). 

2 Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986). 

3 Comeaux-Bisor v. YMCA of Greater Hous., No. H-06-2836, 2007 WL 3171838, at *4 

(S.D. Tex. Oct. 26, 2007), aff’d, 290 F. App’x. 722 (5th Cir. 2008).

4 29 U.S.C. § 2613(a)-(b); 29 C.F.R. § 825.305(a)-(e).

5 Mullins v. TestAmerica, Inc., 564 F.3d 386, 418 (5th Cir. 2009) (quoting Aguiar v. 

Segal, 167 S.W.3d 443, 450 (Tex. App.-Houston [14th Dist.] 2005, pet. denied)).

 Case: 15-20594 Document: 00513542962 Page: 3 Date Filed: 06/10/2016
No. 15-20594

4

employee of [Shell] throughout the Retention Period” and that she would forfeit 

payment if she “failed to meet performance expectations in [her] assignments 

and responsibilities.” It is undisputed that Ryder was not in Shell’s employ for 

the entirety of the Retention Period. The record also demonstrates that Ryder 

failed to meet Shell’s performance expectations, particularly those set forth in 

the PIP. She has raised no genuine issue of material fact regarding Shell’s stated 

reason for refusing to pay her under the Retention Agreement.

For the foregoing reasons, the judgment of the district court is 

AFFIRMED. 

 Case: 15-20594 Document: 00513542962 Page: 4 Date Filed: 06/10/2016