UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

PAUL JANCZAK, 

 Plaintiff - Appellant, 

v. 

TULSA WINCH, INC., 

 Defendant - Appellee. 

No. 14-5071 

(D.C. No. 4:13-CV-00154-CVE-FHM) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, EBEL, and LUCERO, Circuit Judges. 

_________________________________ 

After suffering an injury, Paul Janczak took leave under the Family and Medical 

Leave Act (“FMLA”). Immediately upon his return from FMLA leave, his employer, 

Tulsa Winch, Inc. (“TWI”), terminated his employment. TWI claimed that it had decided 

to terminate Janczak’s position while he was on leave. Janczak sued, alleging 

interference and retaliation under the FMLA. The district court granted summary 

judgment in favor of TWI, concluding that Janczak would have been fired even if he had 

not taken FMLA leave. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the 

grant of summary judgment on the retaliation claim. However, because a reasonable jury 

could find that TWI interfered with Janczak’s FMLA leave, summary judgment was 

 *

 This order and judgment is not binding precedent, except under the doctrines 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 

July 30, 2015

Elisabeth A. Shumaker 

Clerk of Court

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prematurely granted on the interference claim. Accordingly, on the interference claim, 

we reverse and remand for further proceedings. 

I 

Paul Janczak was hired by TWI in June 2010 as General Manager (“GM”) of 

Canadian operations. In May 2012, his immediate supervisor, Andrew Masullo, was 

fired for an “inappropriate management style, including bullying of employees.” At that 

time, TWI President Steve Oden stated that Janczak would continue to lead Canadian 

operations at the firm and would have an opportunity to demonstrate his leadership skills. 

The next month, Janczak attended a leadership program alongside other TWI managers, 

and was found to have met performance standards. A summary of Janczak’s leadership 

competencies prepared in mid-July 2012 stated the following: 

Paul has begun demonstrating the leadership you would expect to find in a 

General Manager. Our Canadian organization has significant growth 

initiatives in place that will need strong support and leadership to be fully 

realized. Paul has demonstrated enthusiasm about our new structure and 

the opportunity [sic] demonstrate his leadership skills and I look forward to 

seeing him take full advantage of it. This will be further reviewed at the 

end of Q3.

Oden attests that on June 18, 2012, he visited the site where Janczak worked and 

observed that, after Masullo’s departure, “the business structure in Canada was evolving 

toward a matrix reporting structure wherein almost all of the Canadian department heads 

were reporting directly into [sic] the functional executives at corporate headquarters in 

Jenks, Oklahoma.” He also attests that, at a meeting on June 26, someone raised the 

question “whether there was a need for a GM in Canada,” and that on July 6, Jill Evanko, 

a vice president at TWI, “recommended elimination of [the GM] position.” 

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On July 30, Janczak was injured in a vehicle accident. As a result, he took FMLA 

leave between July 31, 2012 and October 1, 2012. In mid-August, Janczak forwarded his 

FMLA leave certification to TWI. Janczak reports that he provided Oden additional 

information about his medical condition during an August 23, 2012 phone call.

At the start of Janczak’s leave, Oden had not broached the elimination of 

Janczak’s position with him. On August 8, Oden emailed Bill Spurgeon, to whom he 

reported, to inform Spurgeon that although he would “be evaluating Paul’s performance 

as a GM and the need for a GM in general,” he was “generally not a fan of a highly 

matrixed and remote management structure . . . [p]articularly in the case of [the] 

Canadian operation.” Oden suspected that TWI “will need a strong onsite presence to 

make sure things are getting done,” and intended to give Janczak “time to demonstrate 

his capabilities” and show that he is “the guy for that.” In an affidavit, Oden asserts that 

“on or about August 14, 2012,” he decided to eliminate the GM position in Canada and 

terminate Janczak’s employment. 

Nevertheless, on the morning of August 14, Oden emailed Spurgeon to inform him

that he planned to “further evaluate Paul’s ability to provide the necessary leadership” 

after his return from FMLA leave. And on August 21, Oden reported that Dave 

Rowland, another TWI employee, “would be providing oversight of the supply chain and 

manufacturing area during Paul’s absence which is estimated to run for the next three 

weeks.” He also announced on August 21 that two new hires “will report directly to the 

General Manager” in Canada. A contemporaneous announcement from TWI stated that 

Janczak “may be able to travel and return to work sometime around the middle of 

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September.” In an August 24 email, Cheryl Bailey, Director of Human Resources at 

TWI, identified “Supporting Paul (upon his return)” as an agenda item. Bailey’s notes 

from a meeting on August 27 contained a variety of notations regarding Janczak, 

including “Check Paul’s contract,” “Rowland as next GM,” “Spurgeon vs Janczak,” 

“phase PZ out,” “what is plan for Paul – eliminate position.” On August 31, Oden told 

Spurgeon that he planned to eliminate the GM position and end Janczak’s employment. 

On October 1, 2012, the day he returned to work, Janczak was told that his employment 

had been terminated effective immediately “due to the discontinuation of [his] function.” 

Subsequent to Janczak’s firing, a matrix reporting structure was adopted and 

several Canadian management positions were eliminated, with the remaining Canadian 

department heads reporting to executives in Oklahoma. This change resulted in TWI 

firing its longtime Canadian Controller, Garry Jung. 

On March 18, 2013, Janczak filed suit alleging that TWI engaged in retaliation 

under the FMLA and interfered with his exercise of FMLA rights. Following discovery, 

Janczak and TWI filed cross motions for summary judgment. The district court denied 

Janczak’s motion and granted TWI’s motion. Janczak v. Tulsa Winch, Inc., No. 13-CV0154-CVE-FHM, 2014 WL 2197794, at *11 (N.D. Okla. May 27, 2014) (unpublished). 

It concluded that Janczak had established the first two elements of his FMLA interference 

claim but that TWI had shown, as a matter of law, that it would have discharged Janczak 

even if he had not exercised his FMLA rights. Id. at *9-10. The district court also 

concluded that Janczak satisfied the first two elements of a prima facie case of FMLA 

retaliation, but that he had not shown a genuine issue of material fact as to a causal 

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connection between his protected activity and his discharge. Id. Janczak timely 

appealed. 

II 

A district court decision regarding a motion for summary judgment in an FMLA 

case is reviewed de novo on appeal, applying the same standard as the district court. 

Turner v. Pub. Serv. Co., 563 F.3d 1136, 1142 (10th Cir. 2009). We view facts in the 

light most favorable to Janczak as the non-moving party and draw all reasonable 

inferences in his favor. Tabor v. HILTI, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013). “If 

a reasonable jury could return a verdict for the nonmoving party, summary judgment is 

inappropriate.” Riser v. QEP Energy, 776 F.3d 1191, 1195 (10th Cir. 2015) (quotation 

omitted). 

Janczak took leave under an FMLA provision “allowing leave because of a serious 

health condition that makes the employee unable to perform the functions of the position 

of such employee.” Brockman v. Wyo. Dep’t of Family Servs., 342 F.3d 1159, 1164 

(10th Cir. 2003) (citing 29 U.S.C. § 2612(a)(1)(D)) (quotation and alteration omitted). 

We have observed that 

[t]he legislative history accompanying the passage of the FMLA reveals 

two motivations for the inclusion of [this] provision. First, Congress was 

attempting to alleviate the economic burdens to both the employee and to 

his or her family of illness-related job-loss. Second, Congress was 

attempting to prevent those with serious health problems from being 

discriminated against by their employers. 

Id. (citations omitted). The FMLA also contains a provision prohibiting certain acts by 

employers. § 2615. “This circuit has recognized two theories of recovery under 

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§ 2615(a): an entitlement or interference theory arising from § 2615(a)(1), and a 

retaliation or discrimination theory arising from § 2615(a)(2).” Metzler v. Fed. Home 

Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006). “These two theories of 

recovery are separate and distinct theories that require different showings, differ with 

respect to the burden of proof, and differ with respect to the timing of the adverse action.” 

Dalpiaz v. Carbon Cnty., Utah, 760 F.3d 1126, 1131 (10th Cir. 2014) (quotations and 

alteration omitted). In particular, “the employer bears the burden of proof on the third 

element of an interference claim once the plaintiff has shown her FMLA leave was 

interfered with,” whereas the same is not true on a retaliation claim. Campbell v. 

Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007). Because of these 

differences, it is generally easier for a plaintiff to prevail under an interference than a 

retaliation theory. Id. (“Due to this difference in where the burden lies with respect to 

the third element of each theory, it is not unusual for a plaintiff to pursue an interference 

theory while the defendant argues that the evidence may only be analyzed under a 

retaliation theory.”). 

A 

We begin by considering Janczak’s interference claim. Section 2615(a)(1) states 

that “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the 

exercise of or the attempt to exercise, any right provided in this subchapter,” such as the 

right to take FMLA leave. Three elements are necessary to establish an FMLA 

interference claim: (1) that the employee was entitled to FMLA leave; (2) that some 

adverse action by the employer interfered with the employee’s right to take FMLA leave; 

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and (3) that the employer’s action was related to the exercise or attempted exercise of her 

FMLA rights. DeFreitas v. Horizon Inv. Mgmt. Corp., 577 F.3d 1151, 1159 (10th Cir. 

2009). If an employee demonstrates the first two elements, the employer bears the 

burden of demonstrating that the adverse decision was not related to the exercise of the 

employee’s FMLA rights. Dalpiaz, 760 F.3d at 1132. 

As the district court correctly noted, “unlike in a retaliation claim, an employer 

defending against an interference claim has the burden of proving that it would have 

terminated the employee regardless of the employee’s FMLA leave.” Janczak, 2014 WL 

2197794, at *10 (citing Sabourin v. Univ. of Utah, 676 F.3d 950, 962 (10th Cir. 2012)); 

accord Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 877 (10th Cir. 2004) (“If dismissal 

would have occurred regardless of the request for an FMLA leave . . . an employee may 

be dismissed even if dismissal prevents her exercise of her right to an FMLA leave.”). 

The district court concluded that TWI had established as a matter of law that it would 

have fired Janczak regardless of his FMLA leave on the basis of materials provided by 

TWI showing that it was contemplating Janczak’s position prior to his leave. Janczak, 

2014 WL 2197794, at *10. 

We agree that TWI provided evidence suggesting that it was contemplating 

eliminating the GM position before Janczak was placed on leave. But such evidence 

does not constitute sufficient proof to permit summary judgment. Our precedent requires 

an employer seeking summary judgment on an interference claim to show that 

termination would certainly have occurred regardless of leave. See DeFreitas, 577 F.3d 

at 1160 (considering whether the employee “would have been fired anyway, regardless of 

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leave”); accord Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 548 (4th Cir. 

2006) (holding that “an employer may deny restoration when it can show that it would 

have discharged the employee in any event regardless of the leave”). 

In concluding that evidence of contemplated but not definitive termination was 

sufficient to dismiss an FMLA interference claim at the summary judgment stage, the 

district court relied on Clark County School District v. Breeden, 532 U.S. 268 (2001) (per 

curiam), a Title VII harassment case in which the Court noted that an employer’s 

“proceeding along lines previously contemplated, though not yet definitively determined, 

is no evidence whatever of causality.” Id. at 272. However, because Breeden involved 

only a retaliation claim, see id. at 269, the employee bore the burden of establishing 

causality. In contrast, TWI bears the burden of demonstrating that Janczak’s termination 

was not related to the exercise of his FMLA rights. See Dalpiaz, 760 F.3d at 1132. And 

Breeden does not establish that proceeding along previously contemplated lines negates 

other evidence on which a jury might base its conclusion that a termination was related to 

the exercise of FMLA rights. 

Our cases upholding summary judgment against an employee who was fired while 

validly taking FMLA leave have involved undisputed evidence that the employee in 

question would have been terminated even if FMLA leave had not been taken. E.g. 

Dalpiaz, 760 F.3d at 1134 (employee failed “to comply with a direct and legitimate order 

from her supervisors”); Brown v. ScriptPro, LLC, 700 F.3d 1222, 1228 (10th Cir. 2012) 

(“overwhelming evidence of . . . performance issues” that predated the leave); Bones, 366 

F.3d at 877-78 (employee had repeatedly been tardy and was noncompliant with absence 

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policy on the date she was terminated); McBride v. CITGO Petroleum Corp., 281 F.3d 

1099, 1102 (10th Cir. 2002) (employee, prior to leave, had been tardy, absent from her 

desk, and failed to timely pay invoices or update list of services received from vendors). 

In contrast, we allowed an FMLA claim to go to a jury, even though substantial evidence 

existed supporting the assertion that the employee was fired for reasons unrelated to the 

leave, in a case where the employee had been a strong performer and the employer’s 

proffered evidence contained internal inconsistencies. See DeFreitas, 577 F.3d at 1160-

61. 

There is no evidence that Janczak ever violated company policy, was deficient in 

his duties, or was insubordinate, as in Dalpiaz, Bones, Brown, or McBride. Nor does the 

evidence proffered by TWI constitute undisputed proof that Janczak’s position was 

definitively slated for elimination before his leave began. Construed in the light most 

favorable to Janczak, the evidence TWI presented, including Evanko’s July 6 

recommendation that the GM position be eliminated and Oden’s report that he 

reevaluated the need for the GM position after firing Masullo, merely establish that the 

company was uncertain about the future of its Canadian operations. This case is not like 

Sabourin, where the evidence was “unequivocal that the reduction-in-force decision had 

already been made” before the employee took FMLA leave. Cf. 676 F.3d at 959. 

Even though TWI provided evidence that might persuade a jury to conclude that 

Janczak’s leave ultimately played no role in his termination, the grant of summary 

judgment prematurely took that determination from the jury. See Brown, 700 F.3d at 

1227 (observing that “summary judgment for the employer is warranted only when there 

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is no genuine dispute as to any material fact regarding the grounds for termination,” and 

that “the question . . . is not whether a reasonable jury could find in favor of [the 

employer], but rather whether the evidence is so one-sided that submission to a jury is not 

required”); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (holding 

that, in deciding whether to grant summary judgment, “the judge must ask himself not 

whether he thinks the evidence unmistakably favors one side or the other but whether a 

fair-minded jury could return a verdict for the plaintiff on the evidence presented”); 

Bullington v. United Air Lines, Inc., 186 F.3d 1310, 1315 (10th Cir. 1999), overruled on 

other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) 

(concluding that summary judgment in employment discrimination case was premature 

despite significant weaknesses in employee’s argument). 

Under the facts of this case, a reasonable jury might conclude that Janczak’s 

FMLA leave directly contributed to the decision to terminate him. For instance, a jury 

could conclude that Oden would not have reconsidered the importance of keeping a GM 

position in Canada, given his stated feeling as late as early August that a strong onsite 

presence was needed, had Janczak not gone on extended leave. This interpretation would 

be further bolstered by Oden’s statements in an August 14 email to Spurgeon 

emphasizing the importance of “further evaluat[ing] Paul’s ability to provide the 

necessary leadership,” his statements in an August 21 email to Spurgeon that “Rowland 

will be providing oversight of the supply chain and manufacturing area during Paul’s 

absence which is estimated to run for the next three weeks,” and TWI’s August 21 

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announcement that “[w]e are hopeful that Paul may be able to travel and return to work 

sometime around the middle of September.” 

Additionally, as Janczak explains, the record makes it arguable that the decision to 

terminate him became definitive not on Oden’s stated date of August 14, but instead later 

that month, shortly after additional information about Janczak’s medical condition had 

been received. See DeFreitas, 577 F.3d at 1160 (observing that “[w]henever termination 

occurs while the employee is on leave, that timing has significant probative force,” and 

describing a termination that “occurred just one day after [the employee] told [the 

employer] that she would need to take a full six weeks off and could not return sooner” as 

involving “particularly suggestive” timing); cf. Brown, 700 F.3d at 1227 (stating that an 

employee’s being “fired only two days after his emails and meeting with [the employer] 

about taking time off” for FMLA reasons “may be enough to prove the third element of 

an interference claim, especially because the employer’s intent is irrelevant”). A 

reasonable jury might rely on this information to infer that the decision to eliminate 

Janczak’s position was related to his medical condition and his exercise of FMLA leave. 

On the record before us, a reasonable jury could conclude that Janczak’s taking 

FMLA leave played a role in his ultimate termination and so find in his favor. Though 

taking advantage of Janczak’s absence to reevaluate the value of his contributions to the 

company might appear a prudent economic decision in the abstract, protecting ill or 

caregiving employees from the effects of such a decision is precisely the purpose of the 

FMLA. See DeFreitas, 577 F.3d at 1161 (observing that “the FMLA was enacted 

because employers had found it in their economic self-interest to fire employees who 

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missed too much work for medical care or other reasons now addressed by the FMLA”); 

Brockman, 342 F.3d at 1164 (recounting the FMLA’s purpose to “alleviate the economic 

burdens to both the employee and to his or her family of illness-related job-loss”); cf. 

Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 959 (10th Cir. 2002) 

(employee prevailed on FMLA interference claim even though “[d]uring [her] absence, 

[the employer] says it became apparent” that she had not fully trained her subordinate). 

TWI is correct that courts are not empowered to be “super-personnel departments” 

that can second-guess business judgments. See Bullington, 186 F.3d at 1318 n.14. But, 

on summary judgment, we must view facts in the light most favorable to Janczak and 

draw all inferences in his favor. Tabor, 703 F.3d at 1215. On the record before us, a 

reasonable jury could—though need not—find in Janczak’s favor on the interference 

claim. Accordingly, the grant of summary judgment was in error. 

B 

Janczak also advances an FMLA retaliation claim. We analyze retaliation claims 

using the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 

U.S. 792 (1973). Under this approach, “the plaintiff bears the initial burden of 

establishing a prima facie case of retaliation. If the plaintiff does so, then the defendant 

must 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. “To make out a prima facie retaliation claim, 

[Janczak] must show that: “(1) [he] engaged in a protected activity; (2) [his employer] 

took an action that a reasonable employee would have found materially adverse; and (3) 

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there exists a causal connection between the protected activity and the adverse action.” 

Campbell, 478 F.3d at 1287 (quotation omitted). 

We agree with Janczak that, for reasons similar to those discussed supra, the 

temporal proximity between his leave and his firing, combined with the other evidence he 

provides, suffices to establish a prima facie case of retaliation. See Metzler, 464 F.3d at 

1171-72. We therefore consider whether TWI articulated a legitimate, nonretaliatory 

reason for terminating Janczak. On these facts, we conclude that it articulated such a 

reason. Terminating Janczak as part of a general reorganization of managerial 

responsibilities constitutes a non-retaliatory basis for termination, and TWI has offered 

evidence that such a reorganization has occurred. Cf. Yashenko, 446 F.3d at 551 

(concluding that reorganization constitutes a legitimate, nonretaliatory basis for 

termination). 

Because TWI has articulated a legitimate, nonretaliatory reason for his 

termination, the burden shifts back to Janczak to show that the stated reasons were 

pretextual. We conclude that he fails to do so. Unlike his detailed explanation of why 

TWI’s conduct constituted interference, his argument concerning pretext is conclusory 

and underdeveloped: it consists only of a restatement of his temporal proximity 

argument, which he concedes is insufficient to prove pretext, and conclusory allegations 

that TWI’s real motivations were retaliatory. We do not see how the alleged evidentiary 

discrepancy regarding whether TWI decided to terminate his employment on August 14 

or August 27, absent further corroborating information, demonstrates that the “given 

reasons for terminating [Janczak] are so weak, implausible, inconsistent, incoherent, or 

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contradictory as to support a reasonable inference that [TWI] did not act for those 

reasons.” Metzler, 464 F.3d at 1179. 

Moreover, Janczak does not meaningfully address the fact that TWI restructured 

its operations to permanently eliminate the position he occupied and that another 

managerial employee, Jung, was also fired as part of that restructuring. We have 

observed that “[a] retaliation claim is premised on an adverse employment action that 

was allegedly motivated by the employee’s choice to take the protected leave,” and that 

“[i]n the typical retaliation claim, the employee successfully took FMLA leave, was 

restored to her prior employment status, and was adversely affected by an employment 

action based on incidents post-dating her return to work.” Robert v. Bd. of Cnty. 

Comm’rs, 691 F.3d 1211, 1219 n.6 (10th Cir. 2012). Janczak’s situation does not fit this 

pattern, because he was never restored to his prior employment status; rather, it fits much 

more naturally into an interference theory. 

Accordingly, we conclude that summary judgment was proper as to the retaliation 

claim, even though it was premature as to the interference claim. Resolving the 

interference claim involves a fundamentally causal inquiry: whether Janczak’s taking 

FMLA leave was causally connected to his termination. In contrast, resolving the 

retaliation claim involves an inquiry into motivation: whether TWI’s proffered rationale 

for terminating Janczak was mere pretext for its true, retaliatory motivation. Though 

causation and motivation frequently align, the difference between interference and 

retaliation claims illustrates that such alignment is not always necessary. See Johnson v. 

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Rodriguez, 110 F.3d 299, 313 (5th Cir. 1997) (“The situation of pretext . . . concerns the 

existence of retaliatory motivation, not causation.”). 

We have previously observed that our precedent regarding FMLA claims “could 

well result on occasion in granting or affirming summary judgment to an employer on a 

retaliation claim but not on an equivalent interference claim.” See Sabourin, 676 F.3d at 

962. Because Janczak has offered sufficient evidence for a reasonable jury to conclude 

that his FMLA leave played a causal role in his termination, but not sufficient evidence 

for that jury to conclude that the motivation for terminating him was retaliatory, this case 

represents such an occasion. 

III 

We AFFIRM the grant of summary judgment on Janczak’s retaliation claim, 

REVERSE the grant of summary judgment on his interference claim, and REMAND for 

further proceedings. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

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