Filed: Dec. 20, 2002
Latest Update: Feb. 21, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 02-20109 _ GINGER ROOK, Plaintiff-Appellant, versus XEROX CORPORATION, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Texas, Houston Division 01-CV-2966 _ December 18, 2002 Before GARWOOD, JONES, and STEWART, Circuit Judges. PER CURIAM:1 Appellant Ginger Rook (“Rook”) appeals the district court’s grant of summary judgment in favor of appellee Xerox Corporation (“Xerox”) on her claims under
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 02-20109 _ GINGER ROOK, Plaintiff-Appellant, versus XEROX CORPORATION, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Texas, Houston Division 01-CV-2966 _ December 18, 2002 Before GARWOOD, JONES, and STEWART, Circuit Judges. PER CURIAM:1 Appellant Ginger Rook (“Rook”) appeals the district court’s grant of summary judgment in favor of appellee Xerox Corporation (“Xerox”) on her claims under ..
More
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 02-20109
_______________________
GINGER ROOK,
Plaintiff-Appellant,
versus
XEROX CORPORATION,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas,
Houston Division
01-CV-2966
_________________________________________________________________
December 18, 2002
Before GARWOOD, JONES, and STEWART, Circuit Judges.
PER CURIAM:1
Appellant Ginger Rook (“Rook”) appeals the district
court’s grant of summary judgment in favor of appellee Xerox
Corporation (“Xerox”) on her claims under the Family and Medical
Leave Act of 1993 (“FMLA”), the Americans with Disabilities Act of
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1990 (“ADA”), and the Texas Commission on Human Rights Act.2 Rook
appeals on three grounds: (1) that Rook established a genuine issue
of material fact as to each element of her causes of action; (2)
that the district court erred in not allowing her additional time
for discovery under Federal Rule of Civil Procedure 56(f); and (3)
that the district court erred in granting summary judgment on an
issue not raised by the parties and of which Rook had no notice.
Finding no reversible error, we AFFIRM.
BACKGROUND
Xerox hired Rook on February 8, 1999, after she had
worked for Xerox through Manpower, Inc. for nearly a year. On
June 28, 1999 Rook requested and received a 30 day leave of absence
because of pain related to the physical pain of weekly biopsies
Rook was undergoing, weight loss, flu-like symptoms, and
depression. During her leave of absence Rook’s physician found
that Rook’s biopsies indicated the presence of cancerous tissue and
that Rook needed surgery. Rook called her supervisor at Xerox,
Kevin Brown, on July 23, 1999 to inform him that she was scheduled
to have surgery on July 29 and that she might be able to return to
work in mid-August. On July 26, Rook called Brown and informed him
that her surgery had been rescheduled for August 2. On August 2,
2
Rook does not appeal the grant of summary judgment on her
state law claim.
2
Rook underwent surgery in which Dr. Michael Bevers removed a
cancerous tumor and the lymph nodes in Rook’s right leg.
On August 3, Dr. Lynn Parker (a colleague of Bevers)
informed Rook that she could not return to work until September 13,
1999 due to the extent of the surgery performed the preceding day.
On August 6, Parker notified Health International by facsimile that
Rook would not be able to return to work before September 13.3
Rook faxed that same letter to Brown on August 9.4 On August 26,
Brown sent a letter to Rook informing her that “if you [Rook] are
unable to report to work on [August 30, 1999], and you do not
provide me with a satisfactory explanation for your absence, you
will be considered to have voluntarily resigned your employment
with Xerox Corporation, effective June 26, 1999.” Rook called
Brown on August 30 or 31 to remind him that she was on an approved
medical leave of absence through September 13. Brown stated that
he stood by his letter and told Rook that Health International had
informed him that Rook’s disability benefits had been denied and
that Rook was absent without leave.
3
Health International is a company that manages Xerox’s
disability program. Part of Health International’s duties involves
assessing the extent to which a disability limits a Xerox
employee’s ability to work.
4
Xerox contends that Brown never received a copy of Parker’s
letter. However, since we are reviewing a grant of summary
judgment we review the evidence in the light most favorable to
Rook. Rook also claims that Brown confirmed receiving this letter
from Rook. The portions of the record that Rook cites in support
of this contention, however, provide no evidence of any such
confirmation.
3
Rook then called Heidi Sanders, her case manager at
Health International. Sanders confirmed that Rook’s leave had been
extended to September 12 and offered to call Brown so informing
him. Sanders did in fact call Brown and tell him that Rook’s leave
had been extended. Due to Sanders’s call, Brown understood Rook’s
leave to have been authorized through September 12, and he
considered Rook not to have resigned her employment with Xerox.
Sanders then called Rook at her telephone number on record with
Xerox and Health International to inform her that she had not been
terminated. Sanders left a message with Rook’s ex-husband with
whom she was living at the time. Sanders called again the next day
and left another message. Sanders called again on September 9 and
left a message for Rook on the answering machine. Rook did not
return any of these messages. Sanders then sent a letter to Rook
at her address on record with Xerox advising her to contact Health
International immediately. Neither Xerox nor Health International
received any response.
Unknown to Xerox and Health International, however, Rook
moved from Houston to Amarillo, Texas on September 8. Rook did not
advise Xerox or Health International of her move or her change of
address. On September 13, Rook’s doctor advised Health
International that Rook could return to work on September 17. In
response Health International extended Rook’s leave and disability
payments through September 16. On September 15, Sanders again
4
called Rook and left a message. Rook did not return the call.
During this time in September 1999, Rook continued to receive bi-
weekly disability payments from Xerox via direct deposit into her
bank account. Under Xerox policy, these payments would have ended
had she been discharged.
On September 28, because Rook had failed to return to
work or contact either Xerox or Health International, Brown sent
her a letter advising that she must return to work by September 30
or she would be considered to have voluntarily resigned. This
letter went unanswered. On October 1, Brown sent another letter to
Rook informing her that she was deemed to have resigned her
employment.
STANDARD OF REVIEW
We review the district court's grant of summary judgment
de novo. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998). Summary judgment is appropriate when, viewing the
evidence and all justifiable inferences in the light most favorable
to the non-moving party, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.
Hunt v. Cromartie,
526 U.S. 541, 552,
119 S. Ct. 1545, 1551-52,
143
L. Ed. 2d 731 (1999); see also Fed. R. Civ. P. 56(c). At the
summary judgment stage, a court may not weigh the evidence or
evaluate the credibility of witnesses, and all justifiable
inferences will be made in the nonmoving party's favor. Morris,
5
144 F.3d at 380 (citing Anderson v. Liberty Lobby, Inc.,
477 U.S.
242, 255,
106 S. Ct. 2505, 2513-14,
91 L. Ed. 2d 202 (1986)). This
burden is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated
assertions, or by only a scintilla of evidence. Little v. Liquid
Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994)(en banc).
DISCUSSION
The FMLA contains two separate sets of provisions. It
provides both prescriptive, substantive entitlements to eligible
employees and proscribes discrimination against eligible employees
for taking advantage of these statutory entitlements. Hunt v.
Rapides Healthcare Sys. L.L.C., 277 F.3d 757, 763 (5th Cir. 2001);
Bocalbos v. National W. Life Ins. Co.,
162 F.3d 379, 383 (5th Cir.
1998). Rook alleges that Xerox violated the FMLA when it
terminated her in August prior to the expiration of the twelve
weeks of unpaid leave she was entitled to under the FMLA. See 29
U.S.C. § 2612 (a)(1)(D) (2000). Thus, Rook asserts that Xerox is
liable both under the FMLA’s prescriptive entitlements and its
anti-discrimination provisions.
Fundamental to Rook’s FMLA statutory entitlement claim is
the need to establish a genuine issue of material fact that she was
in fact terminated prior to the end of her statutorily mandated
unpaid leave. The parties appear to agree that an employee is
actually discharged “when the employer uses language or engages in
6
conduct that ‘would logically lead a prudent person to believe his
tenure has been terminated.’” Chertkova v. Connecticut General
Life Ins. Co., 92 F.3d 81, 88 (2d Cir. 1996) (quoting NLRB v.
Trumbull Asphalt Co.,
327 F.2d 841, 843 (8th Cir. 1964)) (stating
standard for actual discharge in Title VII cases); see also NLRB v.
Cement Masons Local No. 555,
225 F.2d 168, 172 (9th Cir. 1955).
Since the parties agree that this is the standard to be applied,
and finding no controlling precedent of this court to the contrary,
we will assume that it is in fact the proper standard.
After carefully reviewing the record, we conclude as a
matter of law that Xerox’s conduct would not have led a prudent
person to believe that Rook’s employment had been terminated. The
only event that could have given Rook such an impression would be
her conversation with Brown on or about August 30 regarding
Brown’s letter of August 26. Rook, in her brief, states that in
this conversation Brown said that Rook’s disability claim had been
denied and that she was “absent without leave.” Brown did not say
that Rook was terminated; he said he stood by the August 26 letter,
which plainly left it in Rook’s hands to furnish proof of her
ongoing disability. There is no evidence in the record that anyone
from Xerox told Rook that she was terminated at any point prior to
October 1. Furthermore, when Rook spoke to Sanders soon after her
conversation with Brown, Sanders stated that Rook was on approved
leave through September 12 and offered to contact Brown to clear up
7
the misunderstanding. Rook apparently failed to follow up with
either Sanders or Brown concerning Sanders’s offer to clarify the
situation with Brown. She does not dispute that Sanders repeatedly
attempted to call her during September, and she offered no summaray
judgment evidence disputing her awareness of these calls. Finally,
she offered no evidence that she was unaware of the deposits of
disability benefits into her account in September or that those
payments would not have been paid unless she was still employed by
Xerox.
Under these circumstances, no prudent person could have
believed that she was terminated in August. Thus, Rook was not
discharged, or considered to have resigned voluntarily, until
October 1, after the expiration of the leave she was entitled to
under the FMLA. We affirm the district court’s grant of summary
judgment in favor of Xerox on Rook’s claim based on the FMLA’s
substantive entitlements.
Rook also alleges that Xerox’s termination of her
employment constitutes discrimination based on her exercising her
statutory rights under the FMLA. See 29 U.S.C. § 2615(a)(2)
(2000). When an employee claims that an employer has discriminated
against her for taking FMLA leave, and there is no direct evidence
of discrimination, that claim is analyzed under the framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct.
1817,
36 L. Ed. 2d 668 (1973). Chaffin v. John H. Carter Co., 179
8
F.3d 316, 319 (5th Cir. 1999). Under McDonnell Douglas, Rook must
first establish a prima facie case of discrimination.5 To
establish a prima facie case of discrimination under the FMLA, Rook
must show that “(1) she was protected under the FMLA; (2) she
suffered an adverse employment decision; and either (3a) that she
was treated less favorably than an employee who had not requested
leave under the FMLA; or (3b) the adverse decision was made because
she took FMLA leave.”
Hunt, 277 F.3d at 768. Since Rook was not
fired, she did not meet the second element of her prima facie case.
Thus, summary judgment on her FMLA claim was proper.
The ADA prohibits discrimination "against a qualified
individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of
employment." 42 U.S.C. § 12112(a) (2000). As with the FMLA, this
court applies the McDonnell Douglas framework to discrimination
claims brought under the ADA.6 McInnis v. Alamo Community College
Dist., 207 F.3d 276, 279 (5th Cir. 2000). And as with
5
In her brief, Rook does not argue that there is a genuine
issue of material fact under a direct evidence theory. She only
argues that she can create a prima facie case of discrimination
under the McDonnell Douglas framework.
6
One can also prove discrimination under the ADA by direct
evidence. Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999).
Rook, however, does not argue that there is any direct evidence of
discrimination.
9
discrimination claims brought under the FMLA, Rook must as part of
her prima facie case establish that she was subject to an adverse
employment action. Id. Since this court has found that as a
matter of law Rook was not terminated by Xerox, she cannot
establish this element of her prima facie case. Summary judgment
in favor of Xerox on Rook’s ADA claim was proper.
Rook also argues that the district court improperly
granted summary judgment in Xerox’s favor on her ADA claim because
the district court may have relied upon grounds not previously
raised or addressed by either party. Rook states that the district
court suggested at the summary judgment hearing that her ADA claim
failed because there was no nexus between her physical limitation
and the reasonable accommodation she sought. Rook argues both that
this “nexus” theory is incorrect and that even if it is correct, it
was not raised by Xerox and thus Rook did not have notice of this
argument or an opportunity to respond.
We need not address either the correctness of the “nexus”
theory or whether the district court improperly relied upon a
theory not raised by Xerox. We may affirm the grant of summary
judgment for any reason supported by the record, even if not relied
upon by the district court. LLEH, Inc. v. Wichita County, Tex.,
289 F.3d 358, 364 (5th Cir. 2002). In fact, “an appellate court may
affirm even though the district court relied on the wrong reason in
reaching its result.” Letcher v. Turner,
968 F.2d 508, 510 (5th
10
Cir. 1992) (per curiam) (quoting Davis v. Liberty Mutual Ins. Co.,
525 F.2d 1204, 1207 (5th Cir. 1976)). Since Rook failed to
establish that she was terminated, we affirm the summary judgment
on this ground.
Rook appeals the district court’s denial of her motion
for additional time to conduct discovery under Rule 56(f). Under
Federal Rule of Civil Procedure 56(f), a summary judgment non-
movant may seek a continuance to conduct additional discovery
necessary to discover facts necessary to the non-movant’s
opposition to the summary judgment motion. Fed. R. Civ. P. 56(f).
A district court’s denial of a motion for additional time for
discovery under Rule 56(f) is reviewed for abuse of discretion.
Beattie v. Madison County School Dist., 254 F.3d 595, 605 (5th Cir.
2001). Rook argues that the district court’s denial of her motion
prevented her from discovering evidence she required to respond to
the motion. Specifically, Rook states that she should have been
permitted additional discovery regarding (1) whether Health
International had the authority to make employment decisions for
Xerox, (2) Xerox’s receipt of Parker’s note stating that Rook could
not return to work until September 13, and (3) Xerox’s attempts to
contact her after August 30.
We conclude that the district court did not abuse its
discretion in denying additional discovery. Health International’s
authority to make employment decisions is not relevant to whether
11
or not Xerox terminated Rook. Neither party suggests that Health
International discharged Rook from her employment at Xerox.
Furthermore, whether Health International had the authority to
reinstate Rook’s employment is not relevant because Rook was never
terminated. Health International’s involvement is relevant only
with respect to whether Rook could reasonably conclude she had been
terminated by Xerox in light of the actions taken by Sanders.
Additional discovery regarding whether Xerox received
Parker’s note would likewise not raise an issue of material fact.
In fact, in this opinion, we have assumed that Xerox did receive
the note. Finally, Rook argues that she required additional
discovery regarding Xerox’s attempts to contact her. Xerox,
however, had produced copies of the letters they sent to her at her
address on record with Xerox as well as documentation of Health
International’s attempts to contact Rook after August 31. Rook
does not identify what other discovery she required in order to
obtain “facts essential to justify [her] opposition.” Fed. R. Civ.
P. 56(f). She simply states that she is entitled to additional
discovery on how Xerox attempted to contact her. In light of
Xerox’s having already produced documentation of its attempts to
contact Rook after August 30, we cannot say that the district court
abused its discretion in denying additional discovery regarding
this issue.
12
Finally, Rook appeals the district court’s denial of her
motion to strike certain hearsay evidence in Xerox’s motion for
summary judgment. Rook, however, simply states that she re-urges
her objections made before the district court without providing any
argument or analysis. Thus, she has waived this issue on appeal.
L & A Contracting Co. v. Southern Concrete Servs., 17 F.3d 106, 113
(5th Cir. 1994)(issues inadequately briefed are deemed waived).
CONCLUSION
Upon review of the record, we find no genuine issue of
material fact supporting Rook’s ADA or FMLA claims because she
cannot establish that she was terminated by Xerox. Furthermore,
the district court did not abuse its discretion in denying
additional time for discovery under Rule 56(f). Finally, the
district court did not impermissibly grant summary judgment without
proper notice to Rook. Finding no reversible error, we AFFIRM.
AFFIRMED.
13
