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Click here for the full text of this decision FACTS:Pamela Richardson began working for Monitronics International Inc. in July 2000. In January 2001, she was diagnosed as having carpal tunnel syndrome. She applied for leave under the Family and Medical Leave Act, but because she had not worked for the company for a year, as required by FMLA, her request was denied. Nonetheless, she took a two-month paid leave under Monitronics’ occupational-injury program. During the first four months of 2002, Richardson accumulated 12 absences and 22 tardies, so Monitronics suspended her. In April 2002, Richardson again applied for FMLA leave, which she was granted. While she was on leave, Monitronics began using a new software program. When Richardson returned to work in her same position and salary, Monitronics said that she could not work any overtime shifts until she’d been trained on the new software; as soon as she was trained, Richardson was given overtime shifts. In September 2002, Richardson sued Monitronics for violating her rights under FMLA, citing the disciplinary actions for her late and tardy incidents, and also for retaliating against her by not letting her work overtime shifts until she was trained. The district court found no FMLA violation, and this court affirmed. After the first suit was resolved, Richardson’s attendance problems progressed. Monitronics developed a new, across-the-board attendance policy that counted absences as one occurrence, and a tardy as a half occurrence. The policy then set out a specific progression of discipline for one, two, three and four occurrences. After a fourth occurrence, an employee could be fired. The policy defined a “tardy” as being late, leaving early, exceeding one’s break or violating the dress code. In May 2003, Richardson incurred four tardy days, twice for leaving early, once for exceeding a break and one for being away from her desk for too long. With two occurrences, Richardson was issued a written warning. At the end of May, Richardson asked for intermittent FMLA leave for her carpal tunnel syndrome. She was granted the request, even though she did not specify the days she wanted to take off. During the following summer, Richardson was tardy five times. She was able to prove that one of the days was approved by her supervisor under the FMLA leave. Though she said the other days were pre-approved FMLA leave days, she could not prove it. Because she now had two more occurrences under the attendance policy, for a total of four, Richardson was given a final warning. It said she would be terminated if there was another occurrence. On Oct. 21, 2003, Richardson wore a polo shirt to a company-sponsored self-defense workshop. Though polo shirts were prohibited in the workplace, Richardson did not change when she went to work after the workshop. This dress-code infraction amounted to half of an occurrence and Richardson was suspended for three days. Later, Monitronics fired her. Richardson filed another lawsuit, saying she was fired in retaliation for filing her first FMLA lawsuit. Monitronics moved for summary judgment, saying Richardson could not establish a prima facie case of retaliation under the traditional McDonnell Douglas Corp. v. Green, 411 U.S. 782 (1973), framework. The district court agreed and granted the motion. HOLDING:Affirmed. The court first holds that the district court erred in analyzing this case under the traditional McDonnell-Douglas framework. The court says the proper analysis is the McDonnell-Douglas mixed-motive framework. Current case law requiring a mixed-motive analysis literally applies only to the Age Discrimination in Employment Act, but the court says the holding applies equally to the FMLA, which has very similar provisions. Consequently, Richardson did not have to prove that retaliation was the only reason she was fired, she has to prove only that it was one of the reasons she was fired before the burden shifts back to Monitronics. The court agrees with Richardson that she raised a fact issue that retaliation was a factor in her firing. The court notes the evidence of hostile remarks that could have been interpreted as being in response to her first FMLA suit. The court adds, however, that some of Richardson’s evidence does not raise a fact issue. For instance, though she says all of her tardy days in the summer were FMLA-approved, she could only substantiate one of those assertions. Though Richardson says her dress-code violation was suspect, the fact remains that she did violate the policy’s terms. She did not show, either, that Monitronics departed from its established policy in disciplining her for her attendance violations. Since Richardson did raise a fact issue, though, on the hostile comments front of things, Monitronics was required to provide sufficient evidence that it would have fired her despite any retaliatory motive. Monitronics did this by showing Richardson’s repeated attendance problems. Consequently, even under the mixed-motive framework, judgment for Monitronics is proper. OPINION:Wiener, J.; Reavley, Davis and Wiener, JJ.

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