FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 6, 2012
                                       PUBLISH                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 MICHAEL T. SABOURIN,

              Plaintiff - Appellant,
       v.                                                No. 10-4150
 UNIVERSITY OF UTAH,

              Defendant - Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF UTAH
                    (D.C. NO. 2:06-CV-01017-TS)


David J. Holdsworth, Sandy, Utah, for Plaintiff - Appellant.

J. Clifford Peterson, Assistant Utah Attorney General, (Mark L. Shurtleff, Utah
Attorney General, with him on the brief), Salt Lake City, Utah, for Defendant -
Appellee.


Before MURPHY, HOLLOWAY, and HARTZ, Circuit Judges.


HARTZ, Circuit Judge.


      Michael T. Sabourin sued the University of Utah in the United States

District Court for the District of Utah, claiming, among other things, that it had

violated the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601–2654, by
deciding to eliminate his position and then firing him for cause while he was on

leave for childcare in June 2006. The district court granted the University

summary judgment. Mr. Sabourin appeals the dismissal of his FMLA claims. We

have jurisdiction under 28 U.S.C. § 1291 and affirm. All the claims fail because

the undisputed facts show that the University’s adverse decisions were not based

on Mr. Sabourin’s taking FMLA leave. The decision to eliminate his position was

made before he sought FMLA leave; and he was fired for engaging in a course of

insubordination.

I.    BACKGROUND

      A.    Events Leading to Termination

      Mr. Sabourin began his employment with the University of Utah as a

contract employee in August 2003. In October 2004 he was switched to full-time

status in the University’s Department of Environmental Health and Safety (EHS).

His position was program manager for emergency preparedness, with

responsibilities that included managing grants from the Department of Homeland

Security as well as training and educating emergency responders and public-

information personnel. His salary and benefits were funded by grants procured by

the University.

      In April 2006 Mr. Sabourin’s supervisor, Marty Shaub, asked the

University’s internal audit department to review EHS’s administrative practices in

handling grants. Later that month she received “a draft report that indicated there

                                        -2-
potentially were systematic problems, resulting in mistakes on individual grants.”

Supp. App., Vol. 1 at 172 (internal quotation marks omitted). She gave

Mr. Sabourin a copy of the report and asked him to generate a response “as

quickly and as efficiently as possible.” 

with him and a University

auditor on May 25, about three weeks after he received his assignment; she was

concerned that she still had not received a draft response and that “despite my

efforts to reassure [Mr. Sabourin, he] had grown defensive in his tone when asked

for updates.” 

meeting Mr. Sabourin presented a spreadsheet on which

he had begun to respond to the auditor’s inquiries. According to Ms. Shaub,

Mr. Sabourin agreed that he could complete a draft memorandum within three or

four days. Ms. Shaub said that she and another supervisor “encouraged Mike to

focus less on each individual line item in the beginning and more effort on the

larger questions.” 

however, said that he had received

contradictory instructions from Ms. Shaub and the auditor and that he had

attempted to be “very thorough” in responding to the audit. Aplt. App. at 59.

      On May 31 Ms. Shaub sent an e-mail to the University’s human resources

department (HRD). The e-mail said that she had attached a memorandum that she

would submit later that day to HRD’s manager of employee relations. The

memorandum stated that she intended to “impose a reduction in force” that would

eliminate Mr. Sabourin’s position on June 30 because of a depletion in grant

money. 

It also stated that Ms. Shaub would provide Mr. Sabourin with

                                        -3-
notice four weeks in advance of the position’s end date, as required by University

policy, and that she understood that Mr. Sabourin would “remain an employee for

30 days from the date of notice.” 

to the e-mail two days

later, indicating that it had not seen the memorandum that Ms. Shaub had

promised to send to the employee-relations manager. HRD asked Ms. Shaub to

fax a signed copy of the memorandum so that it could begin the reduction-in-

force process.

      Independent of the arrangements for a reduction in force, on June 5

Mr. Sabourin discussed with Ms. Shaub taking FMLA leave because of childcare

needs. He explained that his nanny had quit but that his wife (who also worked

for the University) had submitted a shift-change request that would allow them to

cover their childcare needs. Ms. Shaub referred him to HRD. According to

Mr. Sabourin, she was “obviously annoyed” when he mentioned the possibility of

taking FMLA leave and she told him, “Well, what about the internal audit? This

is the only thing on the plate right now. We’re not working on anything else.”

(internal quotation marks omitted).

      The next day Ms. Shaub informed Mr. Sabourin that she was changing his

schedule from Sunday through Thursday to Monday through Friday. According

to Mr. Sabourin, he responded that his wife had now changed her schedule and

that his childcare needs would be covered so long as his schedule remained what

it had been. He states that she responded, “That’s not my concern.” Supp. App.,

                                         -4-
Vol. 1 at 147 (internal quotation marks omitted). The reason she gave him for

changing his schedule was that Monday through Friday is “when university

business takes place.” 

marks omitted).

      Mr. Sabourin formally requested FMLA leave on June 6 or 7. Leave was

approved on June 8, to start the following day. According to the HR

representative with whom Mr. Sabourin discussed the leave, he said that “he

would be working from home to ‘clear his name’” and “had a potential job offer

from another employer.” 

      Ms. Shaub learned on June 8 or 9 that Mr. Sabourin was taking approved

FMLA leave. Mr. Sabourin testified that the day before his leave began

Ms. Shaub came to his office and “exploded,” “blew up,” and went “ballistic”

about his leave, saying: “I’m your supervisor and I have to approve it and I don’t

think it’s important enough for you to leave. You need to be answering the

audit. . . . You can’t take FMLA without me. Here’s the form. It has a place for

my signature and I haven’t signed a damn thing.” 

(internal quotation

marks omitted). It appeared to him that “[s]he felt that I had gone over her head

and that’s not something you do to [Ms. Shaub].” 

      The morning of June 9, Ms. Shaub stopped by Mr. Sabourin’s office to look

for “files that would allow me to complete the response to the auditor due that

day” but found that every drawer had been emptied, that he had not left any

copies of the spreadsheet or other paperwork related to the grants or the audit

                                         -5-
process, and that he had removed all his electronic files from the University

server. 

Also that morning, Mr. Sabourin had a conversation with an

HRD employee about his conflicts with his supervisor; he gave her permission to

call Ms. Shaub in an effort to resolve these issues. About 16 minutes after that

conversation, Ms. Shaub left a voice-mail message at Mr. Sabourin’s home,

saying: “I was not aware of your plans to empty out your office” and “I must

request that all of those files come back until we have an opportunity to negotiate

how duplicates will go home with you.” 

at 403. Ms. Shaub also

discontinued Mr. Sabourin’s work cell phone and University e-mail access.

      After his confrontation with Ms. Shaub on June 8 or 9, Mr. Sabourin

“purposely did not speak with [her] directly” until he had a meeting with her and

HRD on June 13. Aplt. App. at 67. At the meeting he returned some paper files,

but not the spreadsheet or an after-action report (which summarized and evaluated

a mock disaster-relief exercise). He said that he had submitted the after-action

report to his instructor for a class at the College of Health and that the

spreadsheet was 50% complete and at his home. He agreed to provide the

spreadsheet the next day. As the meeting concluded he was given written notice

of the reduction in force. The news displeased him. He changed his mind about

providing the spreadsheet, saying that he was not required to work because he

was on FMLA leave and that he would consult an attorney. And the next day he

retrieved his report from the College of Health and took it home.

                                          -6-
      Shortly after Mr. Sabourin picked up the after-action report, Ms. Shaub left

him a voice-mail message requesting that he “immediately” send her the report

and that he provide electronic and hard copies of the spreadsheet “just as soon as

you can get them up here.” Supp. App., Vol. 2 at 403. The message added, “[I]t

was your choice, and it certainly is your right, to not do University business

during your leave,” but “[w]e just need those files back up here, please.” 

came to the office on June 15 but did not return any

documents. Ms. Shaub left him another message that day, saying, “I understand

you were in the office today but you did not leave the intra-action report or the

spreadsheet.” 

in the message that she had “been instructed to

request that you get it back here by 10:00 tomorrow morning or we’ll file a police

report stating that you’ve got University property without authorization.” 

stated that she understood that these items were incomplete, but that she

wanted them back “[i]n that format” by 10 a.m. 

employee also left

Mr. Sabourin two messages that day, warning that the University would file

criminal charges if the property was not returned. Finally, a letter from

Ms. Shaub dated June 15 notified Mr. Sabourin of a predisciplinary conference to

address Mr. Sabourin’s alleged delay and obstruction in returning University

work and property. It expressed her “intent to terminate your employment for

failing to return University files you removed from your office . . . and for

deleting your electronic files.” 

at 222. The letter set the conference

                                         -7-
for June 22 and advised Mr. Sabourin of his opportunity to respond to the

allegations. According to Ms. Shaub, on June 16 Mr. Sabourin “was again on

campus but did not return the U of U documents repeatedly demanded of him.”

In a June 19 conference call, however, Mr. Sabourin agreed to turn in

his work cell phone, laptop, and the spreadsheet.

      Mr. Sabourin, Ms. Shaub, and an HRD employee attended the

predisciplinary conference on June 22. Mr. Sabourin returned the laptop. But he

had erased all the contents except for the spreadsheet and an operating system;

and the spreadsheet could not be opened because the application used to create it

had been deleted. When asked about the other files, Mr. Sabourin said that he

was not required to return them and that “everything was in your email.” 

(internal quotation marks omitted). At his deposition in this case,

Mr. Sabourin clarified this statement, explaining that some deleted programs were

personal and any deleted work-related files were stored on his group-wise e-mail.

Mr. Sabourin also testified that when Ms. Shaub had said in a prior meeting that

she wanted the laptop returned, she had requested only two files on it—the

spreadsheet and the after-action report.

      The University’s general counsel’s office sent Mr. Sabourin’s attorney a

letter on June 30, stating that it had been the University’s “understanding that

Mr. Sabourin would be removing his personal information from the University’s

lap top computer and transferring to that computer all of the work-related

                                           -8-
electronic data that Mr. Sabourin had stored on his personal computer and storage

devices,” but that he instead had “apparently wiped the University’s lap top

computer clean of all documents and programs” and then loaded the spreadsheet

back onto the computer. 

It claimed that he “did not leave . . . any of

the data to which the spreadsheet was supposed to link” and “failed to transfer to

the laptop any other work documents that were contained on his personal

computer and data storage devices.” 

concluded that Mr. Sabourin’s

actions were not in keeping with the agreement reached at the telephone

conference and requested that he “immediately . . . return to the University all

electronic data in his possession that relates to his work at the University of

Utah.” 

the letter stated that the department was missing “a

number of items that were purchased on the grant[,] . . . including some electronic

equipment and various software packages,” and that the University suspected that

Mr. Sabourin had “many of these items.” 

It requested that

Mr. Sabourin return these and any other items belonging to the University.

      Ms. Shaub also sent Mr. Sabourin a letter dated June 30, which informed

him that, with the concurrence of her supervisor, she had decided to terminate his

employment. The letter listed a number of reasons for the termination, including

his removing all the files from his office without informing her or leaving an

inventory of what had been removed, failing to return her June 9 message

requesting that the files be sent to her, failing to return the spreadsheet and the

                                          -9-
after-action report in a timely manner after being instructed to do so at the

June 13 meeting, deleting all his electronic records from the University server,

and deleting files and supporting software from his work laptop before he

returned it. The letter also asserted that the University could suffer a loss of more

than $350,000 from Mr. Sabourin’s actions in obstructing the audit and that it was

still uncertain whether he had returned all the necessary files. In addition to

announcing his termination, the letter stated “that the University has decided to

designate you as ineligible for employment or volunteer opportunities for a

minimum of five (5) years.” 

. The letter advised Mr. Sabourin that he

had a right to appeal his termination and five-year hiring ban and to seek redress

if illegal discrimination had taken place.

      B.     Posttermination Events

      On July 8 Mr. Sabourin submitted his statement of appeal challenging his

termination and the five-year hiring ban. It asserted that “[t]he decision to

terminate my employment was clearly an act of retaliation by my immediate

supervisor, Marty Shaub, because I sought to address, through the Human

Resources Department, interpersonal difficulties that were continually occurring

with her.” 

It gave a detailed account of Mr. Sabourin’s conflicts with

Ms. Shaub dating back to December 2005, complained that his office was

ransacked and his personal items moved, and accused Ms. Shaub of leaving

threatening voice-mail messages. It claimed that the delay in returning files was

                                         -10-
partly “because Ms. Shaub’s requests were unclear,” 

that he deleted

files from the University server because he had been instructed to eliminate

unnecessary files and those files would still be accessible through his e-mail; that

Ms. Shaub’s termination of his e-mail access had prevented him from retrieving

the files and returning them to the University; that he had offered to search for

items if the University provided him with a list; that he had found and would

return some missing property on a list that the University had given him; that

“Ms. Shaub and Ms. Sorenson [were] already aware they have in their possession”

some outstanding items, 

that any programs removed from his work

laptop were purchased by him; and that the claim that $350,000 in grant money

might have to be refunded was erroneous and exaggerated.

      A September 15 report of the University grievance committee said that

“Mr. Sabourin did not provide evidence showing that it is ‘more probable than

not’” that the University had violated its procedures. 

It found “that

Mr. Sabourin 1) did not complete [the spreadsheet and after-action] reports, or

return any accessible partial reports, 2) did not return all grant-related property

prior to his termination, and 3) deleted all electronic files from the [department’s

shared] drive.” 

“Ms. Shaub’s decision to terminate

Mr. Sabourin is deemed as appropriate and reasonable by the Committee,” 

and recommended that the termination and five-year hiring ban be upheld.




                                         -11-
The vice president of the University ratified the report’s “findings, conclusions,

and recommendations” on September 19, 2006. 

      C.     Litigation

      On December 8, 2006, Mr. Sabourin filed suit against the University. The

first amended complaint alleged (1) that the University had violated the FMLA by

eliminating his position and terminating his employment; (2) that it had breached

his employment contract; (3) that it had wrongfully terminated his employment

for whistle blowing; and (4) that it had deprived him of liberty and property

without due process. On June 14, 2010, the University filed a motion for

summary judgment requesting dismissal of all claims. The district court granted

the motion on July 22. Sabourin v. Univ. of Utah, No. 2:06-CV-1017 TS, 

(D. Utah July 22, 2010). On appeal Mr. Sabourin pursues only his

FMLA claims.

II.   DISCUSSION

      A.     Standard of Review

      “We review the district court’s grant of summary judgment de novo,

applying the same standards that the district court should have applied.”

Merrifield v. Board of Cnty. Comm’rs, 

, 1077 (10th Cir. 2011)

(internal quotation marks omitted). “Summary judgment ‘should be rendered if

the pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant is

                                        -12-
entitled to judgment as a matter of law.’” 

R. Civ. P. 56(c)(2)).

We evaluate the evidence “in the light most favorable to the non-moving party.”

marks omitted).

      B.     Claims

      The FMLA provides that an employer may not “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). It also forbids an employer “to discharge or in

any other manner discriminate against any individual for opposing any practice

made unlawful by [the FMLA].” 

Mr. Sabourin appeals the

dismissal of his four FMLA claims, two for interference under § 2615(a)(1) and

two for retaliation under § 2615(a)(2). He contends that there was sufficient

evidence to support his allegations that the elimination of his position as a

reduction in force constituted both (1) interference and (2) retaliation, and that his

termination also constituted (3) interference and (4) retaliation.

      To establish an interference claim, Mr. Sabourin must show “(1) that he . . .

was entitled to FMLA leave, (2) that some adverse action by the employer

interfered with his . . . right to take FMLA leave, and (3) that the employer’s

action was related to the exercise or attempted exercise of his FMLA rights.”

Metzler v. Fed. Home Loan Bank of Topeka, 

, 1180 (10th Cir. 2006)

(internal quotation marks omitted). Even if Mr. Sabourin shows these elements,

the University will still prevail if it shows that he “would have been dismissed

                                          -13-
regardless of [his] request for, or taking of, FMLA leave.” 

marks omitted).

      As for retaliation claims, we review them at the summary-judgment stage

under the burden-shifting framework for employment-discrimination claims that

originated in McDonnell Douglas Corp. v. Green, 

(1973). To

establish a prima facie case of retaliation, Mr. Sabourin must prove that “(1) [he]

engaged in a protected activity; (2) [the University] 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.”

(footnote omitted). If he establishes a prima facie case,

the University must then produce a “legitimate, nonretaliatory reason for its

termination decision.” 

If the University produces such a reason, the

burden shifts back to Mr. Sabourin to “show that there is a genuine dispute of

material fact as to whether [the University]’s explanations for terminating [his]

employment are pretextual.” 

motion for summary judgment the University conceded most elements

of Mr. Sabourin’s FMLA claims and challenged only his assertions regarding its

reasons for the reduction in force and the termination. We first address the

reduction-in-force claims and then turn to the termination claims.

             1.    Reduction-in-Force Claims




                                         -14-
      While Mr. Sabourin was on FMLA leave, he was informed that his position

was being eliminated in a reduction in force because of inadequate funds. He

contends that there were ample funds to support his position and that the true

reason for the reduction in force was Ms. Shaub’s outrage at his going over her

head to obtain FMLA leave.

      The flaw in Mr. Sabourin’s reasoning is that the uncontradicted evidence

shows that Ms. Shaub decided to lay off Mr. Sabourin before she learned that he

might take FMLA leave. There is no dispute that Ms. Shaub submitted a request

to eliminate his position on May 31, 2006, yet she did not learn that he was

seeking FMLA leave until June 5. Perhaps there was enough money to continue

Mr. Sabourin’s position and perhaps Ms. Shaub knew that; but even if

Ms. Shaub’s stated reason was pretextual, the true reason could not have been the

later request for FMLA leave. (We note that Mr. Sabourin’s July 8 statement

appealing his termination recited his interpersonal conflicts with Ms. Shaub

dating back to December 2005.)

      Mr. Sabourin argues that although Ms. Shaub “contemplated imposing a

reduction in force . . . , [she] hadn’t yet decided to implement such a reduction in

force or to notify Mr. Sabourin that she was going to go ahead and actually

implement the reduction in force until after he started taking FMLA leave.” Aplt.

Br. at 19. He contends that “[j]ust because Ms. Shaub had gone through the

necessary steps to obtain approval to impose a reduction in force, such does not

                                        -15-
mean she had decided to go ahead and implement such reduction of force or that

she had to go ahead with her plan.” 

      But contrary to Mr. Sabourin’s theory, Ms. Shaub’s May 31 letter is

unequivocal that the reduction-in-force decision had already been made. It

begins, “The purpose of this memorandum is to inform you of my intent to

impose a reduction of force within EHS.” It later states: “I intend to eliminate the

position of Program Manager,” “The employee to be affected by this action is

Mike Sabourin,” and “I plan to eliminate the position(s) effective June 30, 2006.”

Supp. App., Vol. 1 at 208.

      Mr. Sabourin suggests that Ms. Shaub’s decision must have still been

tentative on May 31, because (1) she planned to eliminate the position as of

June 30; (2) she knew, as stated in the May 31 letter, that she needed to give him

four weeks’ notice, so notice would need to be provided by June 2; but (3) she

failed to give notice until June 13, after he began his FMLA leave. Mr. Sabourin

fails, however, to provide evidence of any hesitation or reconsideration by

Ms. Shaub. On the contrary, the only relevant evidence in the record suggests

that the delay in giving notice resulted from bureaucratic causes. The May 31

letter concluded: “I am coordinating this action through Diane Nelson, HR

Generalist.” 

explained in an affidavit that she had “asked for

assistance from HR to understand the Reduction in Force rules and procedures.”

Aplt. App. at 134. On June 2 Ms. Nelson sent Ms. Shaub an e-mail saying that

                                        -16-
she had not yet seen the letter that Ms. Shaub had sent over, but that once

Ms. Shaub faxed her a signed copy, “Employee Relations can start the process.”

Supp. App., Vol. 1 at 209. There is no evidence of further involvement in “the

process” by Ms. Shaub before notice was given to Mr. Sabourin on June 13.

      Thus, there is no genuine issue that the reduction in force was wholly

independent of Mr. Sabourin’s request for FMLA leave. His interference claim

fails because the reduction in force was not “related to the exercise or attempted

exercise of his FMLA rights.” 

(internal quotation

marks omitted); see Taylor v. Smith’s Food & Drug Ctrs., Inc., 127 F. App’x 394,

397 (10th Cir. 2005) (employer’s decision to terminate plaintiff was unrelated to

the plaintiff’s FMLA request because it would have terminated plaintiff anyway;

it “had already begun to process [plaintiff]’s termination two days prior to her

request for the FMLA forms” (emphasis added)).

      Likewise, the reduction in force cannot support an FMLA retaliation claim

because there is no genuine issue that there was no “causal connection between

the protected activity [the request for FMLA leave] and the adverse action [the

reduction in force].” 

.

             2.    Termination Claims

      Mr. Sabourin claims that the University interfered with his FMLA leave

and retaliated against him for taking FMLA leave by converting the reduction in

force into a termination for cause. The factual basis for Mr. Sabourin’s claim

                                        -17-
consists essentially of (1) the temporal coincidence of his firing and his FMLA

leave; (2) the extreme anger displayed by the person who initiated the firing,

Ms. Shaub, when he informed her of his leave; and (3) Ms. Shaub’s imposing

work duties on him while he was on FMLA leave and then justifying his firing on

the ground that he had failed to perform those duties. We agree that temporal

proximity, expressions of anger in response to protected activity, and the

improper imposition of work duties on one taking FMLA leave could all be

persuasive evidence in support of claims like Mr. Sabourin’s. But these

circumstances must be viewed in context. And in the context of the undisputed

evidence in this case, there is no genuine issue that Mr. Sabourin’s claim is

unsupported.

        To begin with, although Mr. Sabourin testified in his deposition that

Ms. Shaub “exploded” when she learned of his FMLA leave, Supp. App., Vol. 1

at 163, he explained that she reacted in that way because “[s]he felt that I had

gone over her head and that’s not something you do to [her],” 

Ms. Shaub’s initial reaction certainly has some probative value, but not a great

deal.

        More importantly, the decision to fire Mr. Sabourin is supported by

extensive undisputed evidence of his efforts to impede and obstruct efforts by his

employer to perform his job in his absence. When he left on FMLA leave, he

removed all tangible files from his office, removed all his electronic files from

                                         -18-
the University server, and kept the laptop on which he maintained files

electronically. When this was discovered on the morning of his first day of leave,

June 9, Ms. Shaub left him a voice-mail message at home “request[ing] all of

those files come back until we have an opportunity to negotiate how duplicates

will go home with you.” 

at 403. Mr. Sabourin did not respond until a

meeting with Ms. Shaub on June 13. At that time he returned some paper files

but not an after-action report or the spreadsheet with his preliminary responses to

the auditor report.

      It is Mr. Sabourin’s responses to the requests for those two documents that

unequivocally demonstrated his insubordination. At the June 13 meeting he

originally stated (1) that the after-action report was in the hands of an instructor

to whom he had submitted the report for a class he was taking and (2) he would

provide the spreadsheet the next day. But after being informed of the reduction in

force, he changed his mind. Certainly he could properly be upset upon hearing

the news that he would be losing his job. If, however, he chooses to react by

being an obstructive, rather than a faithful, employee, he cannot expect to retain

his position, even until the reduction in force takes effect. And Mr. Sabourin’s

reaction cannot be characterized as anything but obstructive.

      First, rather than being passive and allowing his employer to pick up the

after-action report from the instructor, Mr. Sabourin preempted his employer by

retrieving the report from the instructor on June 14 and taking it home. As for the

                                         -19-
spreadsheet, his response to the reduction-in-force notification was to tell

Ms. Shaub that he had changed his mind about providing it the next day because

he was not required to work while on FMLA leave. On June 14, Ms. Shaub left

him a voice-mail message at home, saying that “it was your choice, and it

certainly is your right, to not do University business during your leave,” but that

“[w]e just need those files back up here, please.” 

to his office on

June 15 but returned no documents. Upon hearing of this, Ms. Shaub left a

stronger message that day, warning that a police report would be filed if he did

not bring the spreadsheet (and the after-action report) by the next morning. Only

on June 19 did Mr. Sabourin agree to return his laptop and the spreadsheet. But

he did not return the laptop until June 22, and even then everything had been

erased from it except for the spreadsheet and the operating system, and the

spreadsheet could not be opened because the application used to create it had

been deleted. Additional undisputed facts recited earlier in this opinion further

establish Mr. Sabourin’s disloyalty and vindictiveness, but what has been said

here will suffice.

      Reviewing the evidence presented by Mr. Sabourin, we see no improper

imposition of work duties on him during his FMLA leave. The requests by

Ms. Shaub were for items necessary for his employer to perform his work while

he was absent. There will undoubtedly be occasions when an employee on FMLA

leave cannot respond to any request by the employer, or the request may simply

                                         -20-
be unreasonably burdensome. But this was not such an occasion. If Mr. Sabourin

had done nothing, his employer would have retrieved the after-action report from

the instructor, but Mr. Sabourin went out of his way to keep that from happening

by preemptively retrieving the report to take home. And the spreadsheet could

easily have been provided with the laptop on occasions when Mr. Sabourin went

to the campus without returning anything. Indeed, he again went out of his way

to impede his employer’s access to the spreadsheet by erasing the application

from the laptop. It is also worth noting that the records sought by the University

were removed by Mr. Sabourin from his office when he took FMLA leave; they

were not records ordinarily maintained only at his home. In short, the

University’s request for materials from Mr. Sabourin was not an impermissible

demand for work during FMLA leave. It was a request for a modest,

unburdensome effort to enable Mr. Sabourin’s work to be performed while he was

on leave. See Daughtery v. Wabash Ctr., Inc., 

, 751 (7th Cir. 2009)

(employer’s requests for keys and passwords were modest and would enable

employer to operate without the employee).

      We can summarize as follows: The University states that it fired

Mr. Sabourin for his disloyal and obstructive conduct while on FMLA leave, not

because he requested or took FMLA leave; the undisputed evidence fully supports

that explanation; and Mr. Sabourin has provided no evidence to show that the

explanation is pretextual. Under our precedents, summary judgment on

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Mr. Sabourin’s retaliation claim was therefore required. He had the burden to

“show that there is a genuine dispute of material fact as to whether [the

University’s] explanations for terminating [his] employment are pretextual.”

. He failed to satisfy that burden and therefore

succumbs to summary judgment on the claim.

      Our analysis of Mr. Sabourin’s interference claim is on its face somewhat

different, but in substance it is the same. Under this circuit’s somewhat

inconsistent precedents, the summary-judgment analyses of FMLA retaliation and

interference claims differ in their consideration of an employer’s contention that

the employee was fired for reasons wholly independent of his request for or

taking of FMLA leave. For an FMLA retaliation claim, although we grant

summary judgment only when a jury could not reasonably decide otherwise, see

Berry v. T-Mobile USA, Inc., 

, 1216 (10th Cir. 2007), and even

though a jury is not to be instructed on the McDonnell Douglas framework, see

U.S. Postal Serv. Bd. of Governors v. Aikens, 

, 713–16 (1983);

Kendrick v. Penske Transp. Servs., Inc., 

, 1226 (10th Cir. 2000); cf.

Wells v. Colo. Dept. of Transp., 

, 1227 (10th Cir. 2003) (Hartz, J.,

concurring), we use the burden-shifting rules of that framework in assessing

whether to affirm summary judgment. See 

. In other

words, all the employer need do is assert a nonretaliatory motive, and the

employee must then provide evidence showing that the asserted motive is

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pretextual. See 

other hand, when an employer defends an FMLA

interference claim on the ground that it would have terminated the employee

anyway, we place the burden of persuasion on the employer to prove that defense.

See 

This disparate assignment of the burden of persuasion 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. On some future

occasion this court may wish to justify these contrasting standards of review or

alter one of them. But we need not do so here. The University has satisfied its

burden under an interference claim as well as under a retaliation claim. It has not

merely asserted its reason for its decision to fire Mr. Sabourin. It has produced a

sufficient body of undisputed evidence that a reasonable juror could not find

another reason.

III.   CONCLUSION

       We AFFIRM the district court’s grant of summary judgment.




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