Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—S.D. Tex.: Jury must decide whether FMLA certification concerns were pretext for retaliatory firing of employee with sick child, (Sep 16, 2026)

By Wendy Biddle, J.D.

Fact issues were present regarding whether the employer's false signature theory was pursued in good faith.

A federal court in the Southern District of Texas denied summary judgment to an industrial maintenance company accused of firing an employee in retaliation for seeking FMLA leave to care for her son who was diagnosed with cancer, ruling that a jury must decide whether the company's suspicion of falsified medical certification paperwork was a pretext for retaliation (Jones v. Axios Industrial Maintenance Contractors, Inc., No. 4:25-cv-02232 (S.D. Tex. Sept. 11, 2026)).

Son diagnosed with cancer. In November 2021, the employee began working for the company. She was terminated on November 8, 2024. The dispute arose after the employee sought and was approved for FMLA leave in October 2024 to care for her son, who had been diagnosed with a rare soft-tissue cancer. HR provided the employee with a Certification of Health Care Provider form, instructing that Section III be completed by "the physician" and returned within 15 days.

Form lacked information. After the initial deadline passed, the company followed up twice, and the employee submitted a certification form, but Section III lacked contact information for the certifying provider. The employee explained that her son's original dermatologist was on maternity leave, so she contacted a patient advocate and, based on that conversation, added the names and contact details of two different physicians, before resubmitting the form.

Termination. The employer reviewed the resubmitted form and concluded the signature did not match either physician's name. Its HR generalist contacted the patient advocate, who confirmed neither doctor had signed the document. The advocate's email also suggested that Axios could follow up with the original referring physician and provided her contact information. Axios did not do so. That same day, Axios terminated the employee, citing falsification of FMLA-related documents as a serious violation of company policy and ethics.

Applying the McDonnell Douglas burden-shifting framework as articulated in Fifth Circuit precedent, the court noted that Axios did not contest, for purposes of the motion, that the employee established a prima facie case of retaliation, since her termination occurred while she was on approved leave.

Good-faith belief? The burden then shifted to Axios to articulate a legitimate, nondiscriminatory reason for termination. The court found Axios met this burden of production through its assertion of a good-faith belief that the employee had falsified the certification, supported by its verification effort with the physicians. The employee did not contest that Axios articulated a legitimate reason, shifting the burden back to her to show pretext.

The court's analysis centered on two arguments the employee raised. First, she contended Axios could not have formed a genuine good-faith belief in falsification because it declined to contact the original prescribing physician, despite being directed to her by the patient advocate, and because Axios never asked the employee directly about the discrepancy. The employee also argued, based on the signature's appearance, resembling a "J" and a scribble, that a jury could question whether Axios's suspicion was even reasonable given the doctor’s first name is Jonathan.

Axios countered that the relevant inquiry is not whether its belief was ultimately correct but whether it was honestly held at the time, citing Fifth Circuit authority that a deficient investigation does not itself establish pretext.

Temporal proximity. Second, the employee pointed to the 21-day span between her leave request and termination as further evidence of pretext. Axios responded that temporal proximity, while sufficient to establish causation at the prima facie stage, cannot alone establish pretext, relying on the court's own prior decision in Leal v. BFT, Ltd. P’ship, 423 F. App’x 476 (5th Cir. 2011).

The court agreed that temporal proximity alone would be insufficient, but distinguished this case from Leal, where the plaintiff had not meaningfully challenged the employer's proffered explanation itself. Here, by contrast, the employee directly challenged both the reasonableness of the company’s suspicion and the adequacy of its investigation, particularly the decision not to follow up with the referring physician after the patient advocate identified her as a route to verification. The court characterized this as a "more conclusive" challenge to the proffered explanation than existed in Leal, warranting denial of summary judgment when combined with the temporal proximity evidence.

Weighing the totality of the evidence, the court concluded that a reasonable fact-finder could determine the employer’s stated reason was pretextual. The court therefore denied the employer’s motion for summary judgment.

The case is No. 4:25-cv-02232.

Judge: Ellison, K.

Attorneys: Michael Todd Slobin (Shellist Lazarz Slobin) for Mallory Jones. Akilah Fayola Craig (Troutman Pepper Locke) for Axios Industrial Maintenance Contractors, Inc.

Companies: Axios Industrial Maintenance Contractors, Inc.

Cases: EmployeeLeave Retaliation Discharge TexasNews