UNITED STATES COURT OF APPEALS September 26, 2022 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _______________________________________

JEANNIE PARKER,

Plaintiff - Appellant,

v. No. 21-4093

UNITED AIRLINES, INC.,

Defendant - Appellee.

___________________________________________

Appeal from the United States District Court for the District of Utah (D.C. No. 2:19-CV-00045-BSJ) ___________________________________________

Peter M. Katsaros, Hahn Loeser & Parks LLP (Eugene E. Endress and Rashmi D. Shivnani, Hahn Loeser & Parks LLP with him on the briefs), Chicago, Illinois, for Plaintiff-Appellant.

Jessica E. Whelan, Holland & Hart LLP, Las Vegas, Nevada (Bryan K. Benard, Holland & Hart LLP, Salt Lake City, Utah, with her on the briefs), for Defendant-Appellee. __________________________________________

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges. ___________________________________________

BACHARACH, Circuit Judge. ___________________________________________

This case involves provisions of the Family and Medical Leave Act

(FMLA), 29 U.S.C. §§ 2601–54. This statute prohibits employers from Appellate Case: 21-4093 Document: 010110744428 Date Filed: 09/26/2022 Page: 2

retaliating against employees for taking FMLA leave. 29 U.S.C.

§ 2615(a)(2). We may assume for the sake of argument that the prohibition

would ordinarily apply when an employer adopts an immediate

supervisor’s recommendation to fire an employee for taking FMLA leave.

With that assumption, we must decide whether the prohibition would apply

when the employee obtains consideration by independent decisionmakers.

We answer no. Retaliation entails a causal link between an

employee’s use of FMLA leave and the firing. That causal link is broken

when an independent decisionmaker conducts her own investigation and

decides to fire the employee.

I. Ms. Parker’s supervisor recommends the firing of Ms. Parker, and two independent decisionmakers consider the recommendation.

Ms. Parker fielded calls for United, booking flight reservations. Ms.

Parker took FMLA leave because she had a vision disorder and her father

had cancer. About five months after approving the leave, Ms. Parker’s

supervisor suspected that Ms. Parker was avoiding new calls by telling

customers that she would get additional information, putting the customers

on hold, and chatting with coworkers about personal matters while the

customers waited. The supervisor characterized Ms. Parker’s conduct as

“call avoidance.”

2 Appellate Case: 21-4093 Document: 010110744428 Date Filed: 09/26/2022 Page: 3

This suspicion led to a meeting between the supervisor, Ms. Parker,

and a union representative. At the meeting, the supervisor played

recordings of three calls between Ms. Parker and customers:

1. On the first call, Ms. Parker had talked to a customer for about 4 minutes. But she stayed on the line for another 54 minutes. Ms. Parker admitted that she had “failed to disconnect the call when saying goodbye” or “watch the time,” which “resulted in a hung call for a huge amount of time.” Appellant ’s App ’x vol. 2, at 383, 390.

2. On the second call, Ms. Parker had put a customer on hold for 15 minutes. Right after putting the customer on hold, Ms. Parker asked another supervisor for help. After getting the help, Ms. Parker and the ot