Filed: Feb. 22, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS February 21, 2007 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 06-10885 Summary Calendar _ KAREN BACON, Plaintiff - Appellant, versus EDS, Defendant - Appellee. _ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:05-CV-193 _ Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Karen Bacon sued EDS for retaliatory discrimination under the Fa
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS February 21, 2007 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 06-10885 Summary Calendar _ KAREN BACON, Plaintiff - Appellant, versus EDS, Defendant - Appellee. _ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:05-CV-193 _ Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Karen Bacon sued EDS for retaliatory discrimination under the Fam..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 21, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-10885
Summary Calendar
_____________________
KAREN BACON,
Plaintiff - Appellant,
versus
EDS,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CV-193
_________________________________________________________________
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Karen Bacon sued EDS for retaliatory discrimination under the
Family and Medical Leave Act (“FMLA”). Finding that Bacon failed
to establish the prima facie case for her FMLA claim, the district
court granted summary judgment in favor of EDS. We affirm.
I.
Bacon was employed by Sabre Corporation in 1993 as a project
librarian. In 1999, she transferred to a position in voice network
services (“VNS”) where she installed and supported electronic voice
mailboxes for other employees, under the supervision of Lorinda
*
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this opinion should not be published and is not precedent except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.
Crawford. In the spring of 2001, Bacon received a merit raise and
a promotion based on her performance in VNS, as well as an award
for solving a difficult voice mailbox problem. During the time she
was employed by Sabre, Bacon never received training in any VNS
function other than the installation and support of mailboxes.
In July 2001, EDS bought Sabre and Bacon became an EDS
employee. Bacon requested permission to work from home, and was
told by her manager Patrick Burke that such a move could limit her
professional development by “pigeonholing” her. Bacon told Burke
she was already “pigeonholed” in her current position. Her request
to work from home was subsequently approved by Steve Hallowell,
Burke’s manager.
Shortly thereafter, in August 2001, Bacon was injured in a car
accident. She requested and was granted five days of leave, as
well as time to pursue physical therapy. In September 2001, Bacon
suffered a heart attack. She requested and received four days of
leave to recover.
In September 2001, EDS began to plan a reduction-in-force
(“RIF”). Burke was instructed to rank the members of his group
according to their value. With input from Crawford, Burke drafted
an email to Hallowell ranking the seventeen employees under his
supervision. Burke assigned the lowest ranking to Sharon Wildin-
Dunn, an administrative assistant who had recently joined the team,
explaining that her work could be performed by other team members,
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if necessary. Burke ranked Bacon sixteenth because, he explained,
her skill set was limited to voice mail.
On October 16, 2001, Bacon cut her ankle and requested leave
to recover. While on leave for the leg injury, she severed tendons
in her hand. She requested several leave extensions, all of which
were granted. She ultimately returned to work on December 21. On
October 28, while Bacon was on leave, EDS implemented an RIF,
terminating Sharon Wildin-Dunn and three other VNS employees who
did not report to Burke.
When Bacon returned from leave, she began working from home.
In January 2002, EDS decided to conduct a second RIF, resulting in
the termination of over one hundred employees. Hallowell was
instructed to eliminate four additional positions from the VNS
group. After consulting with Burke as to the continued accuracy of
the September 26, 2001 ranking, Hallowell decided to eliminate
Bacon’s position, along with three positions in other groups.
Bacon was terminated on January 30, 2002 and her workload was
reassigned to Melanie Ainsworth, who had previously shared voice
mail support duties with Bacon. Bacon filed suit alleging
retaliatory discrimination under the FMLA. EDS filed a motion for
summary judgment, which the district court granted. Bacon timely
appealed.
II.
We review the district court’s grant of summary judgment de
novo. Summary judgment is appropriate when the record demonstrates
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that “there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). “We construe all facts and inferences in
the light most favorable to the nonmoving party ....” Cooper Tire
& Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005) (internal
quotation omitted). A plaintiff “must present affirmative evidence
in order to defeat a properly supported motion for summary
judgment,” Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 257
(1986), which “requires that a plaintiff ‘make a showing sufficient
to establish the existence of an[y] element essential to that
party’s case, and on which the party will bear the burden of proof
at trial.’” Nowlin v. Resolution Trust Corp.,
33 F.3d 498, 501
(5th Cir. 1994) (quoting Celotex v. Catrett,
477 U.S. 317, 322-23
(1986)).
III.
To establish a prima facie case of retaliation, Bacon must
demonstrate that she was protected under the FMLA; that she
suffered an adverse employment action, and that the adverse
employment action was taken because she sought protection under the
FMLA. Hunt v. Rapides, Healthcare Sys., 277 F.3d 757, 768 (5th
Cir. 2001). There is no dispute that the first two prongs of the
prima facie case have been met. In determining whether a causal
link has been shown, we have found three factors helpful: (1) the
extent of the employee’s disciplinary record; (2) whether the
employer followed its policies and procedures in dismissing the
4
employee; and (3) the temporal relationship between the protected
action and the termination. Nowlin, 33 F.3d at 508. To support
her prima facie case, Bacon presented evidence that her low ranking
and termination occurred within close temporal proximity to her
second and third FMLA leaves, that Crawford’s attitude toward her
changed after she began to take FMLA leave, and that EDS failed to
follow its regular procedures in ranking the employees for the RIF.
As the district court concluded, Bacon’s claim fails because
she cannot present evidence that her termination was causally
linked to her medical leaves of absence. Bacon alleges that
Crawford’s resentment toward her for taking leave in September and
October motivated the low ranking Bacon received in September 2001.
Bacon’s only evidence of Crawford’s alleged change in attitude is
her own declaration of January 11, 2005, in which she said that
Crawford’s “inflection, tone of voice and attitude was cold, heavy
and distant as opposed what had been warm, light and friendlier
before.” The scant strength of this evidence of animus is
dissipated by Bacon’s deposition testimony of August 29, 2005, in
which she stated that she “got along well” with Crawford, that
Crawford was “concerned” about her after her accident, and that
Crawford worked with her to adjust her schedule so that Bacon could
attend physical therapy. Despite Bacon’s attempt to reconcile her
two accounts, she can point to no place in her deposition testimony
in which she testified that Crawford displayed any sort of
5
hostility to her after her leaves.** A party cannot “raise an issue
of fact simply by submitting an affidavit contradicting [her] own
prior testimony ....” Doe v. Dallas Indep. Sch. Dist., 220 F.3d
380, 386 (5th Cir. 2000) (citations omitted).
Bacon’s allegation that EDS failed to follow its regular
policies and procedures is also unsubstantiated by the evidence she
produced at summary judgment. To support this claim, Bacon
introduced excerpts from the “EDS Leaders’ Guide” and other related
documents, which we have reviewed under seal. Bacon does not,
however, make any specific allegations as to how EDS violated this
protocol with respect to her termination. After reviewing the EDS
materials, we agree with the district court’s conclusion that the
“guidelines are nonbinding and, as can be determined from the
summary judgment evidence, were substantially followed by Crawford
and Burke.”
This leaves only the temporal proximity between Bacon’s FMLA
leaves of absence and her ranking and termination as support for
her claim of a causal link. Temporal proximity is a “significant,
although not necessarily determinative, factor” in finding
**
Bacon did complain in her deposition that Crawford was
displeased that Bacon was unable to return to work after her final
hand injury. She admits, however, that she was not forced to
return to work and that she was granted the leave time she needed
to recover. Additionally, this injury did not occur until October
2001, after the September 2001 ranking was already completed.
Therefore any alleged hostility that Crawford demonstrated after
the final leave was not causally related to the low ranking that
resulted in her termination.
6
causation. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092
(5th Cir. 1995). In this case, however, it is insufficient
because the sequence of events preceding Bacon’s termination does
not give rise to any inference that it was linked to her FMLA
leave.
In August and September of 2001, Bacon requested and received
two leaves of absence from EDS. In September 2001, while on her
second leave, Bacon received a low ranking in the RIF planning.
This low ranking was based on Bacon’s limited skill set, a concern
of which she had previously been made aware. Bacon alleges,
however, that this low ranking was given in retaliation for her use
of FMLA leave. She was not, however, terminated on the basis of
this ranking despite the fact that she was on her third leave at
the time that the first RIF was conducted. In fact, in the email
Burke sent to Hallowell ranking his team, he drew a line below
Bacon and above Wildin-Dunn to indicate that he did not wish to
eliminate Bacon and “would struggle” if forced to do so.
Bacon’s employment thus continued through her third leave of
absence, which was extended due to a fourth injury. When she
returned from leave in early January, she was permitted to work
from home as she had previously requested. She was then laid off,
based on the September 2001 ranking, as part of a second RIF in
which more than one hundred workers were laid off, including four
in the VNS group. She was not replaced. Bacon provides no
coherent explanation of how this series of events demonstrates any
7
link between her FMLA leave and her ultimate termination. We agree
with the district court’s conclusion that the “mere fact that
Bacon’s FMLA leave coincided with a reduction in force does not
prove, even prima facie, a case of retaliation.” Because Bacon
cannot make out the causation prong of her prima facie case, her
retaliation claim fails.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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