Filed: Oct. 21, 2013
Latest Update: Mar. 28, 2017
Summary: Case: 13-20239 Document: 00512415104 Page: 1 Date Filed: 10/21/2013 REVISED October 21, 2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITUnited States Court of Appeals Fifth Circuit FILED No. 13-20239 October 18, 2013 Summary Calendar Lyle W. Cayce Clerk ANNIESA L. PARIS, Plaintiff–Appellant, versus SANDERSON FARMS, INCORPORATED; SANDERSON FARMS, INCORPORATED (FOODS DIVISION), Individually and Doing Business as Sanderson Farms, Incorporated; SANDERSON FARMS, INCORPORATED (PRODUCTI
Summary: Case: 13-20239 Document: 00512415104 Page: 1 Date Filed: 10/21/2013 REVISED October 21, 2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITUnited States Court of Appeals Fifth Circuit FILED No. 13-20239 October 18, 2013 Summary Calendar Lyle W. Cayce Clerk ANNIESA L. PARIS, Plaintiff–Appellant, versus SANDERSON FARMS, INCORPORATED; SANDERSON FARMS, INCORPORATED (FOODS DIVISION), Individually and Doing Business as Sanderson Farms, Incorporated; SANDERSON FARMS, INCORPORATED (PRODUCTIO..
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Case: 13-20239 Document: 00512415104 Page: 1 Date Filed: 10/21/2013
REVISED October 21, 2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUITUnited States Court of Appeals
Fifth Circuit
FILED
No. 13-20239 October 18, 2013
Summary Calendar
Lyle W. Cayce
Clerk
ANNIESA L. PARIS,
Plaintiff–Appellant,
versus
SANDERSON FARMS, INCORPORATED;
SANDERSON FARMS, INCORPORATED (FOODS DIVISION),
Individually and Doing Business as Sanderson Farms, Incorporated;
SANDERSON FARMS, INCORPORATED (PRODUCTION DIVISION);
SANDERSON FARMS, INCORPORATED (PROCESSING DIVISION),
Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CV-3119
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 13-20239 Document: 00512415104 Page: 2 Date Filed: 10/21/2013
No. 13-20239
Anniesa Paris, a former employee of Sanderson Farms, Inc. (“Sanderson
Farms”), appeals a summary judgment dismissing her discrimination and retali-
ation claims. We affirm.
I.
In 2008, Paris began working at Sanderson Farms’ poultry processing
plant as a personnel clerk and was shortly thereafter promoted to the position
of employee records clerk. Sanderson Farms has its own Family and Medical
Leave Act Policy for Salaried Employees (“the Policy”) for handling employee
leave under the Family and Medical Leave Act (“FMLA”). The Policy permits
employees to take up to thirteen weeks’ leave annually, rather than the twelve
weeks provided by the statute. The Policy imposes certain protocols employees
must follow before1 and during2 their leave. The Policy also specifies that “an
employee[] who fail[s] to return after exhausting their thirteen weeks of FMLA
leave will be subject to discharge” unless Sanderson Farms grants an extension.3
1
The Policy requires employees to “provide [Sanderson Farms] with sufficient informa-
tion to enable it to determine whether the leave requested qualifies as FMLA leave.” Sander-
son Farms, where appropriate, “will require certification issued by a health care provider of
an employee’s need for leave because of the employee’s own serious health condition . . . .” An
employee must submit this certification within fifteen days after receiving the forms from San-
derson Farms “unless [such submission] is impracticable . . . and the employee has made dili-
gent, good faith efforts to comply with this deadline.”
2
The Policy requires employees on leave to “call the Field Employee Relations Manager
periodically to report on their status and intent to return to work.”
3
The Policy allows “employees who, because of disability, remain temporarily unable
to perform their jobs after exhausting FMLA leave may request extensions of leave beyond the
thirteen-week limit.” The employee must request the extension reasonably in advance of the
expiration of the existing leave, and any such extension “must be approved by [Sanderson
Farms’] Executive Committee.”
2
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No. 13-20239
On October 19, 2009, Paris took FMLA leave to undergo and recover from
a surgical procedure; she returned to work on November 16. Paris claims that,
during her leave, her supervisor, Richard Warner, harassed her regarding her
leave.4 In December, Sanderson Farms terminated Warner for poor job perfor-
mance, including for issuing Paris’s improper write-ups. Also in December, San-
derson Farms received a demand letter from a former employee, Revena Carroll,
alleging claims of discriminatory and retaliatory discharge and claiming that
Paris had witnessed an incident related to Carroll’s claims against Sanderson
Farms.5
Paris began a second FMLA leave on December 17 after receiving treat-
ment at the emergency room. Her treating physician, Gerald Salinas, submitted
a completed FMLA certification on December 30 saying that Paris would be out
of work for “two to three weeks” to give Salinas a chance to determine the cause
of her symptoms.
On January 8, 2010, Orman called Paris to see whether she planned to
return to work or would need additional leave. Because Paris did not know
when she would return, Ormon told her that she would need to submit an
updated FMLA certification to cover any additional leave. On January 22, Paris
submitted an FMLA certification signed by Salinas, indicating a return date of
4
Paris claims Warner told her she was not following the Policy, which required her to
submit a timely doctor’s note to excuse an absence. When Paris returned to work, Warner
issued her two write-ups for excessive lateness and the unauthorized release of information
from personnel files. Paris complained to the Division Manager, Todd Ormon, requesting
those “bogus” write-ups be removed from her files. Ormon determined that the write-ups were
unjustified and removed them.
5
Carroll’s letter alleges the following altercation: “When Anniesa Paris handed [docu-
mentation indicating Carroll required extending her FMLA leave] to Mr. Ormon, he looked at
it, then threw it back at her angrily, and said, ‘I don’t need this, I’ll take care of it myself.’”
3
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January 25.
Paris did not return to work on January 25 but instead submitted a note
from Salinas indicating that Paris needed to remain out of work “until she’s
released by the Gastroenterologist.” That same day, Veronica Campbell, who
was Warner’s replacement, sent a certified letter to Paris that indicated (1) Paris
needed to send a new certification to cover any leave beyond January 25, and
(2) Salinas’s note was insufficient documentation. Two days later, Salinas sub-
mitted an updated FMLA certification stating that Paris could not return to
work until after she saw a gastroenterologist on March 18.
Paris’s FMLA leave expired in February.6 On February 22, Salinas sub-
mitted a note stating that Paris “is still waiting to see GI [on] 3/18/10 and is still
off work.” On February 26, Ormon requested Paris’s leave be extended to
March 18. Sanderson Farm’s Executive Committee approved the extension.
Paris saw her gastroenterologist, Anupama Duddempudi, on March 18,
then called Campbell to say she would be unable to return to work at that time.
On March 23, Salinas sent Sanderson Farms a note stating Paris was “excused
from work until Gastroenterologist, Dr. Duddempudi, gives any indication that
she can return.” In response, on March 25, Campbell sent Paris a certified letter
indicating (1) her extension had expired on March 18, and (2) her employment
would be terminated unless she returned to work or request another extension
by April 9.7
6
Based on Sanderson Farms’ calculations, which Paris does not dispute, Paris’s leave
under the Policy expired on or about February 18, and Paris’s twelve-week statutory leave
expired on or about February 11.
7
The cover letter indicates April 10 as the due date, whereas the attached certification
(continued...)
4
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No. 13-20239
In the afternoon of Friday April 9, Salinas faxed Campbell a medical certi-
fication form indicating that Paris’s expected date to return to work was “today,
4/09/10.”8 Shortly after receiving that certification, Campbell forwarded it to
Jennifer Buster, a Sanderson Farms Human Resources Manager.
Paris did not return to work on April 9. Having not heard from her, Bus-
ter decided that before taking any further action, Sanderson Farms should wait
to see whether she came to work on Monday April 12. Paris claims she left mes-
sages for Campbell on April 2 to inform Campbell that she had a procedure
scheduled for April 5, and on April 8 to inform Campbell that her paperwork
would be delayed because her doctor was out of the country. Sanderson Farms
disputes that Paris left those messages.9
Paris did not come to work on April 12. The next day, Buster spoke with
Ormon and Campbell concerning Paris’s employment status; after that conversa-
tion, Buster10 terminated Paris’s employment. The parties disagree on the effec
7
(...continued)
required Paris to return the certification by April 9. In its brief, Sanderson Farms contends
“April 9, 2010 was the correct date, because April 10 was a Saturday.”
8
Paris points to several “odd” features of the fax: (1) In spite of the January 25 letter
indicating Paris would remain out of work “until she’s released by the Gastroenterologist,” the
certification came from Salinas, not Duddempudi; (2) the certification came on April 9 instead
of April 15, when Duddempudi was supposed to return to her office; (3) the document was
faxed at 3:15 p.m. on a Friday, “indicating Paris was released to work then, the same day she
was supposed to return to work;” (4) the document was not personally presented by Paris; and
(5) Campbell admitted the release had some odd features.
9
Sanderson Farms points to undisputed testimony indicating that the only means to
send Campbell a message would by leaving a message with the receptionist. That is, phones
in the processing plant do not have voice mailboxes. Per her deposition testimony, Campbell
“does not remember” whether she received a call from Paris before April 5 or on April 8.
10
At his deposition, Ormon testified that although he was involved in the decision to
(continued...)
5
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No. 13-20239
tive date of termination: Sanderson Farms claims it was April 9,11 but Paris
claims it was April 1.12
Paris sued, alleging that Sanderson Farms interfered with her rights
under the FMLA and discriminated and retaliated against her by terminating
her in violation of the FMLA, the Americans with Disabilities Act (“ADA”), and
the Texas Commission on Human Rights Act (“TCHRA”). The district court
granted summary judgment on all claims.
II.
We review a summary judgment de novo, “using the same stan-
10
(...continued)
terminate Paris, the ultimate decision was made by Buster. Paris’s counsel asked Buster dur-
ing her deposition whose decision it was to terminate: “yours or [Orman’s] or somebody’s else?”
Buster responded that the “policy dictated” termination; Campbell testified that she was
involved only in handling the paperwork regarding Paris’s termination. In its interrogatory
responses, Sanderson Farms stated that Buster and Campbell were both involved in the
decision.
11
Sanderson Farms relies on three pieces of evidence for this date: (1) A Sanderson
Farms “Salaried Payroll Authorization” form signed by Ormon and Campbell on April 13 indi-
cates that the effective date of termination was April 9; (2) Paris was told to file her second
extension by April 9; and (3) Salinas’s fax cleared Paris for work on April 9.
12
Paris also relies on three pieces of evidence in support of this date: (1) During a tele-
phone conversation between her and Campbell on April 15, Campbell told her that she had
been terminated on April 1; (2) the “Salaried Payroll Authorization” form originally indicated
April 1 as the termination date, but Sanderson Farms had altered the form to indicate an
effective date of April 9 (According to Paris, the form itself makes this alteration readily
apparent.); and (3) a Consolidated Omnibus Reconciliation Act (“COBRA”) form provided to
Paris after her termination lists “End of employment” as occurring on April 1. Sanderson
Farms disputes these assertions: (1) Campbell denies having a conversation with Paris on
April 15; (2) there is no evidence that the date on the form has been altered; and (3) per Camp-
bell’s testimony, the date on the COBRA form merely reflected that Paris’s paycheck would
be stopped as of March 31 “so she wouldn’t be paid as of April the 1st. But April the 9th was
the actual effective date” of termination.
6
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No. 13-20239
dard as that employed by the district court under Rule 56.” Kerstet-
ter v. Pac. Scientific Co., 210 F.3d 431, 435 (5th Cir. 2000). Sum-
mary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a).
Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012), cert. denied, 2013 U.S.
LEXIS 5708 (U.S. Oct. 7, 2013) (No. 12-1437). We consider “all facts and infer-
ences in the light most favorable to the nonmoving party when reviewing grants
of motions for summary judgment.” Murray v. Earle,
405 F.3d 278, 284 (5th Cir.
2005) (citation omitted).
A.
FMLA prohibits employers from “discharg[ing] or in any other manner dis-
criminat[ing] against any individual” who takes FMLA leave or engages in other
protected activity under the Act. 29 U.S.C. § 2615(a)(2) (2012); Bocalbos v. Nat’l
W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998). Where, as here, the employee
has not offered direct evidence of discrimination, this court applies the familiar
three-step burden-shifting analysis established in McDonnell Douglas Corp. v.
Green,
411 U.S. 792, 800-03 (1973).13
First, the employee must establish a prima facie case of discrimination.
Second, if he does that, the burden shifts to the employer to provide a legitimate,
non-discriminatory reason for the adverse action. Finally, if the employer meets
its burden, the employee must show that the reason provided was a pretext for
discrimination.
13
See Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999), partially abro-
gated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 146–49
(2000).
7
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No. 13-20239
Sanderson Farm assumed Paris could establish a prima facie case, so we,
like the district court, assume that. We next must inquire whether Sanderson
Farms produced evidence demonstrating a legitimate, non-discriminatory reason
for terminating Paris. Sanderson Farms put forward evidence demonstrating
it terminated Paris’s employment when she failed (1) to return to work following
her extended FMLA leave and (2) to submit any certification seeking another
extension. Because failure to return following a FMLA leave constitutes a legiti-
mate, non-discriminatory basis for termination, Sanderson Farms has met its
burden under McDonnell’s second step. See Hart v. Comcast of Hous., LLC, 347
F. App’x 978, 980 (5th Cir. 2009).
Thus, moving to McDonnell’s third step, summary judgment must be
affirmed unless Paris can identify evidence that creates a genuine issue of fact
that Sanderson Farms’ justification was pretextual. That is, Paris needs to have
put forward sufficient evidence to show Sanderson Farms terminated her
employment because she took FMLA leave. We agree with the district court:
None of the “plethora of arguments” Paris argued before the district court, and
repeats before this court, creates a genuine issue of material fact on pretext.
First, Paris attempts to show pretext by demonstrating she requested an
extension to her FMLA leave before April 9, 2010. Paris, however, points only
to her testimony regarding messages she left on April 2 and 8. Even if the record
demonstrates Paris left these messages with the receptionist, Paris would not
have complied with Sanderson Farms’ policy. Paris does not dispute any of the
following four findings: (1) She received Campbell’s March 25 letter; (2) that
letter informed her that she needed either to return to work or to submit com-
pleted certification forms by April 10; (3) the letter included blank certification
8
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No. 13-20239
forms; and (4) she did not submit completed certification forms to Sanderson
Farms, exactly the reason Sanderson Farms justified its termination on. The
evidence Paris points to does not demonstrate a genuine issue on pretext.
Second, Paris claims Sanderson Farms’ failure to contact her between
April 9 and April 13 creates a genuine issue on pretext. Paris argues that
because she had complied with company policy thus far, Sanderson Farms’ fail-
ure to clarify the “odd” features of Salinas’s faxed certification suggests pretext.
Paris also theorizes that Sanderson Farms violated its own company policy by
not “ensur[ing] there was no miscommunication,” again suggesting “Ormon was
waiting for a pretext to terminate her” for taking FMLA leave.
Neither of these arguments creates a genuine issue. Paris, contrary to her
assertion, did not comply with “every request of Sanderson Farms.” As dis-
cussed above, Paris does not dispute (1) she received Campbell’s March 25 letter;
and (2) that letter described the exact steps she needed to take to remain
employed. The record therefore indicates Sanderson Farms clearly informed
Paris of what she needed to do to. Even if Salinas’s certification was “odd,” the
Policy still required Paris either to return to work or to submit completed certifi-
cation by April 10. Paris failed to do so.
In terms of her second argument, Paris has not put forward any evidence
showing that the Policy required Sanderson Farms to clarify an employee’s fail-
ure to comply. Paris points only to Campbell’s deposition testimony, in which
Campbell was asked about what she believed a company should do in certain
situations.14 That testimony does not state what Sanderson Farms required its
14
The relevant deposition testimony is as follows:
(continued...)
9
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No. 13-20239
employees to do in this situation. Even if this testimony somehow revealed San-
derson Farms’ policy, it does not provide evidence that it violated its policies. At
best, the testimony shows Sanderson Farms has a general duty to communicate
with its employees while they were on medical leave, which it certainly did here.
Furthermore, even if this testimony shows Sanderson Farms violated its
internal policiesSSwhich it does notSSsuch evidence does not preclude summary
judgment.15 It is true that such violation of internal policies, depending on, inter
alia, the nature of the internal policy and the extent of the deviation in the par-
ticular case, could give rise to evidence of pretext in light of all the other relevant
facts. See, e.g., Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005).
Here, however, the undisputed evidence shows Sanderson Farms repeatedly
14
(...continued)
[Plaintiff’s Counsel]: Do you believe that a company should take care to ensure that it
has good reason to terminate an employee?
[Campbell]: Yes.
[Plaintiff’s Counsel]: Do you believe that a company should take care to ensure that it
has a good reason to terminate an employee?
[Campbell]: Yes.
[Plaintiff’s Counsel]: Do you believe that a company should take care to ensure that it
has its facts straight before terminating an employee?
[Campbell]: Yes.
[Plaintiff’s Counsel]: Do you believe that a company should take care to ensure it’s not
terminating an employee based on wrong information?
[Campbell]: Yes.
[Plaintiff’s Counsel]: Do you believe that a company should take care to ensure it is not
terminating an employee based on false information?
[Campbell]: Yes.
...
[Plaintiff’s Counsel]: And is it also important for a company to communicate with an
employee when the employee is out on medical leave?
[Campbell]: Yes.
15
See Grubb v. Sw. Airlines, 296 F. App’x 383, 390 (5th Cir 2008) (per curiam) (“Failure
to follow internal procedures is generally not enough to create a genuine issue of fact as to dis-
criminatory motives.”).
10
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No. 13-20239
communicated with Paris and told her the specific obligations to remain
employed. Even if the record clearly showed Sanderson Farms’ policy required
it to have communicated with Paris between April 9 and the time of termination,
and Sanderson Farms failed to do so, that evidence does not give rise to a genu-
ine issue on pretext.
Third, Paris attempts to show pretext by arguing she has put forward
sufficient evidence showing her effective termination date was April 1. She
relies on three pieces of evidence that Paris believes create a dispute on the ter-
mination date: (1) According to Paris, the Sanderson Farms Salaried Payroll
Authorization form “has been altered to change the Effective Date and Term
Date from ‘4/1/10’ to ‘4/9/10’ ”; (2) the COBRA letter states Paris’s medical bene-
fits ended on April 1; and (3) Campbell’s allegedly telling Paris that her employ-
ment had been terminated effective April 1. According to Paris, “[a] termination
date of April 1, 2010 is incompatible with Sanderson Farms’ proffered reason for
termination—Paris’s alleged failure to return to work on April 12, 2010—and is
evidence of a factual issue that should have precluded summary judgment.”
As the district court decided, none of these assertions gives rise to a mate-
rial factual dispute on pretext. With respect to the allegedly altered date, with-
out pointing to any expert testimony or other objective criteria, Paris merely
asserts the form makes it clear that the date has been altered. She does not
explain why or how the document was altered, and she ignores Buster’s and
Ormon’s testimony: Both stated under oath that they did not, nor did they
instruct anyone else to, alter the document.
As to the second contention, the undisputed record explains the discrep-
ancy between the effective termination date (April 9) and the date listed on the
11
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No. 13-20239
COBRA letter (April 1). Under Sanderson Farms’ salary-continuation policy,
Paris’s pay continued only through March 18 (when her certification from Sali-
nas expired). The date on the COBRA form merely reflected that Paris’s pay-
check would be stopped as of March 31, because no further pay was due.
Finally, as to her third contention, like the altered date, without any sub-
stantiation, Paris merely asserts Campbell called her and told her that April 1
was her effective termination. That “evidence” amounts to nothing more than
“conclusory statements, speculation, and unsubstantiated assertions” and, there-
fore, cannot defeat summary judgment. See RSR Corp. v. Int’l Ins. Co., 612 F.3d
851 (5th Cir. 2010).
Fourth, Paris contends Sanderson Farms “changed its story” about who
made the termination decision. We agree with the district court that “a proper
reading of the record does not demonstrate any meaningful inconsistency” about
who at Sanderson Farms decided to terminate Paris’s employment.16 Likewise,
the district court properly concluded “the salient question is not who terminated
the plaintiff but why she was terminated.” As discussed above, the undisputed
record indicates Sanderson Farms terminated Paris because she failed either to
return to work or to submit an updated certification form. This contention does
not create a genuine issue on pretext.
Lastly, Paris contends “Ormon has a negative attitude toward FMLA leave
and Sanderson Farms has a pattern and practice of terminating employees for
taking FMLA leave.” To substantiate her claim that pretext can be shown by
Ormon’s negative attitude, instead of offering her own “conclusory statements,
16
Each of Sanderson Farms’ witnesses, as well as its interrogatory response, identified
Buster as the decision-maker, with some degree of input from Campbell and Ormon.
12
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No. 13-20239
speculation, and unsubstantiated assertions,” Paris now offers statements by
Carroll. The district court in Carroll’s case in fact noted that much of her evi-
dence contained “unsupported conclusory assertions [and] speculation.” Carroll
v. Sanderson Farms, Inc., No. H-10-3108, 2012 WL 3866886, at *14-15 (S.D. Tex.
Sept. 5, 2012).
In terms of her second contention, Paris has likewise not put forward suffi-
cient evidence of a pattern and practice of retaliation. First, she does not dispute
that Sanderson Farms’ FMLA leave policy provides more generous benefits than
required by state and federal law—a fact inconsistent with a pattern and prac-
tice of FMLA discrimination.
The facts of this case, furthermore, do not suggest a pattern or practice of
terminating employees for taking FMLA leave. As the district court noted, Paris
was granted discretionary leave and continued receiving pay long after her stat-
utory and company leave had expired. We again agree with the district court
that Paris has not offered any competent evidence giving rise to a genuine issue
on pretext.
B.
FMLA prohibits employers from “discharg[ing] or in any other manner dis-
criminat[ing] against any individual because such individual . . . has testified,
or is about to testify, in any inquiry or proceeding relating to any right provided
under this subchapter.” 29 U.S.C. § 2615(b)(3) (2012) (emphasis added). Paris
asserted she had been terminated in retaliation for having been identified as a
witness in Carroll’s lawsuit.17 Finding that Paris “failed to establish any nexus
17
Before the district court, Sanderson Farms argued that the FMLA precluded liability
under this theory: “[S]erving as a witness to an allegedly hostile comment toward another
(continued...)
13
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No. 13-20239
between her potential role as a witness in Carroll’s case and [her] termination,”
the district court concluded that Paris “has not established a prima facie case
regarding her ‘witness retaliation claim.’” Even assuming arguendo that Paris
could establish a prima facie case, the district court would nevertheless grant
summary judgment, because Sanderson Farms “articulated a legitimate, non-
discriminatory reason for terminating [Paris],” and Paris failed to produce evi-
dence showing that the stated reason was pretextual.
On appeal, Paris argues the district court erred in two ways: (1) Sander-
son Farms did not move for summary judgment on her witness-retaliation claim,
and, therefore, the district court could not grant summary judgment on that
claim; and (2) Paris presented sufficient evidence to deny summary judgment.
We reject both of these claims. Rule 56 places the initial responsibility on
Sanderson Farms, as the “party seeking summary judgment[,] . . . to inform[] the
district court of the basis for its motion, and identif[y] those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); see FED. R. CIV. P. 56(c).
Sanderson Farms has met its burden under Rule 56. It moved for sum-
mary judgment on all of Paris’s claims, including witness retaliation.18 Further
17
(...continued)
employee several months earlier is not among the ‘rights’ enumerated under the FMLA or for
which retaliation is prohibited, and the letter does not provide a valid basis for an FMLA retal-
iation claim.” Because the plain text of § 2615(b)(3) appears to allow such a theory, however,
we do not affirm summary judgment on this ground.
18
In its motion for summary judgment, Sanderson Farms argued,
Plaintiff claims that Richard Warner retaliated against her for taking her first
(continued...)
14
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No. 13-20239
more, Sanderson Farms’ arguments—concerning both its non-discriminatory
basis and the lack of pretext—apply with just as much force to Paris’s witness-
retaliation claim. Paris puts forward no precedent suggesting this degree of
identification is insufficient under Rule 56.19
As to her second basis of error, Paris does not point to any additional evi-
dence that was not discussed above. We again find she has not presented evi-
dence giving rise to a genuine issue on pretext.
C.
FMLA prohibits employers from “interfer[ing] with, restrain[ing], or deny-
[ing] the exercise of or the attempt to exercise, any right provided under” the
Act. 29 U.S.C. § 2615(a)(1) (2012). The district court granted summary judg-
ment on Paris’s FMLA interference claim. Paris has not appealed this issue, so
18
(...continued)
FMLA leave . . . and that her discharge following her second period of FMLA
leave was motivated by an alleged disability and/or retaliation for taking medi-
cal leave, in alleged violation of the ADA, TCHRA and/or FMLA. . . . In this
case, Sanderson Farms has articulated a legitimate, non-discriminatory reason
for its actions, and there is no competent evidence of pretext. Accordingly, sum-
mary judgment should be entered for Sanderson Farms.
Sanderson Farms added, in a footnote, that Paris
also believes she may have been retaliated against for ‘being named as a wit-
ness’ in a demand letter submitted to Sanderson Farms by former Field
Employee Relations Manager Revena Carroll . . . . Jennifer Buster looked into
the concerns raised in Carroll’s letter, but there is no evidence to establish that
the letter played any role in Plaintiff’s termination several months later.
19
Paris only cites to Russ v. Int’l Paper Co., 943 F.2d 589 (5th Cir. 1991). In that case,
the defendant moved for summary judgment, identifying “two issues it contended were estab-
lished in the record, either of which would be considered dispositive under Mississippi law
. . . .” Id. at 592. This court affirmed, finding that the defendant had met its burden under
Rule 56. Id. Nothing in Russ suggests that Sanderson Farms has not met its burden here.
15
Case: 13-20239 Document: 00512415104 Page: 16 Date Filed: 10/21/2013
No. 13-20239
it is waived. See State v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).
D.
Lastly, Paris alleges two errors with the grant of summary judgment on
her claims under the ADA and TCHRA. First, she avers that because Sanderson
Farms did not move for summary judgment on the claims, the district court
could not grant summary judgment on them. Contrary to Paris’s claim, how-
ever, as discussed above, Sanderson Farms moved for summary judgment on all
of Paris’s claims, specifically those under the FMLA, ADA, and TCHRA.20 San-
derson Farms has met its Rule 56 obligations.
Second, without presenting any additional justifications, Paris again
argues “summary judgment should still have been denied because Paris pre-
sented evidence of pretext.” We again conclude that Paris has not presented evi-
dence giving rise to a material factual dispute on pretext.
The judgment is AFFIRMED.
20
In its motion for summary judgment, Sanderson Farms argued as follows:
Plaintiff claims that Richard Warner retaliated against her for taking her first
FMLA leave . . . and that her discharge following her second period of FMLA
leave was motivated by an alleged disability and/or retaliation for taking medi-
cal leave, in alleged violation of the ADA, TCHRA and/or FMLA. . . . In this
case, Sanderson Farms has articulated a legitimate, non-discriminatory reason
for its actions, and there is no competent evidence of pretext. Accordingly, sum-
mary judgment should be entered for Sanderson Farms.
16
