       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                No. 15-50300                          FILED
                                                                  July 26, 2016
                                                                 Lyle W. Cayce
CYNTHIA HEINSOHN,                                                     Clerk

            Plaintiff - Appellant

v.

CARABIN & SHAW, P.C.,

            Defendant - Appellee




               Appeal from the United States District Court
                    for the Western District of Texas


Before SMITH, WIENER, and GRAVES, Circuit Judges.
WIENER, Circuit Judge:
     Plaintiff-Appellant Cynthia Heinsohn brought this action in Texas court
against her former employer, Defendant-Appellee, the law firm of Carabin &
Shaw, P.C. (“C&S”). She alleged violations of the Family Medical Leave Act
(“FMLA”) and the Texas Commission on Human Rights Act (“TCHRA”). C&S
removed the action to federal court. Following discovery, both C&S and
Heinsohn moved for summary judgment. The magistrate judge recommended
granting C&S’s motion and denying Heinsohn’s. The district court agreed, and
entered judgment. Heinsohn now appeals, and we reverse and remand.
                                     No. 15-50300
                                           I.
                               FACTS & PROCEEDINGS
A.    FACTS
      In 2011, C&S hired Heinsohn as a legal assistant and assigned her to
work exclusively on Social Security Administration (“SSA”) cases. Her wages
were $10 an hour, and her responsibilities included (1) updating case notes in
C&S’s electronic case management system, (2) communicating with clients and
with the SSA, and (3) monitoring deadlines. She was assigned to assist George
Escobedo, an “of counsel” lawyer responsible for all SSA cases, 1 and Maria
Carvajal, his legal assistant.
      Late in 2011, Heinsohn decided to accept a better-paying position with
another employer and tendered her resignation to C&S. Escobedo, who
“thought she was doing a good job, and . . . didn’t want to see her leave,”
convinced James Shaw, the managing partner of C&S, to raise her pay. He did
so, and Heinsohn withdrew her resignation. Her wages eventually rose to $14
an hour.
      Heinsohn became pregnant early in 2012. Shortly before she left on
maternity leave later that year, Escobedo informed Heinsohn that he would
reassign each of her cases to Becky Rendon, another legal assistant in the SSA
section. Although it appears that Escobedo requested Heinsohn to perform
some specific tasks before she left, it is not entirely clear what those tasks were.
In their respective depositions, Escobedo and Heinsohn provided differing
descriptions of those requests and tasks. The gist, however, appears to be that
Escobedo simply requested Heinsohn to complete all outstanding tasks in each


      1  When asked whether there was “anybody else working in the Social Security
[section] at that time besides you, [Carvajal], and [Escobedo],” Heinsohn responded:
“Nobody.” When asked “[w]ho would overlook [her] work,” she responded: “[I]t was always
[Escobedo] and/or [Carvajal].”



                                           2
                                       No. 15-50300
of the cases that he had assigned to her. Heinsohn began her maternity leave
late in 2012, after telling Escobedo that she had completed all tasks that he
had requested.
       Within days after Heinsohn’s departure, Rendon told Escobedo that,
according to the notes in the case management system, deadlines had been
missed in some of Heinsohn’s cases and good-cause letters had been sent on
Escobedo’s behalf. Neither Rendon nor Escobedo sought an explanation from
Heinsohn. 2 Instead, after reviewing the notes himself, Escobedo informed
Tracy Leonard, who assisted with human resources, that it appeared deadlines
had been missed by Heinsohn. Leonard then informed Shaw. After speaking
with Escobedo, Shaw decided to fire Heinsohn without providing her an
opportunity to explain the situation. Approximately two weeks after Heinsohn
had begun her maternity leave, Leonard—at Shaw’s behest—wrote to
Heinsohn, informing her that C&S had terminated her employment. Leonard
did not give any reason for firing Heinsohn.
B.     PROCEEDINGS
       Early in 2013, Heinsohn filed a claim with the Equal Employment
Opportunity       Commission        (“EEOC”),       alleging    “sex     and     retaliation
discrimination.” C&S responded, asserting that it had nondiscriminatory
reasons for terminating her. Heinsohn filed a petition in state court later that
year, claiming that C&S had violated the FMLA and the TCHRA. C&S then
removed the action to federal court on the basis of the FMLA claim. In so doing,
it explained: “Removal of this action is proper because [Heinsohn]’s suit
involves a federal question. Specifically, [her] claim arises under [the FMLA].”



       2A good-cause letter is a request that the SSA excuse a missed deadline. It suggests
that there was a good, viz. legally sufficient, reason for the missed deadline. Such a reason
generally exists if a person was not made aware of the deadline to begin with.



                                              3
                                      No. 15-50300
      In late 2014, after discovery had been conducted, C&S moved for
summary judgment. Heinsohn then filed her own motion for summary
judgment on the question of liability, which she subsequently corrected. About
a week later, Heinsohn responded to C&S’s motion for summary judgment. She
acknowledged that C&S did not have enough employees to be subject to the
FMLA, so she “will withdraw that portion of her claim” against C&S. She also
attached a new affidavit, dated December 17, 2014 (the “earlier affidavit”).
C&S then moved to strike both the earlier affidavit and various portions of
Heinsohn’s deposition.
      Early in 2015, the magistrate judge granted much of C&S’s motion to
strike, recommended that C&S’s motion for summary judgment be granted,
and recommended that Heinsohn’s motion for summary judgment be denied.
The district court reviewed the motions for summary judgment de novo and
adopted the magistrate judge’s recommendations. In so doing, it refused to
consider a new affidavit by Heinsohn, dated February 18, 2015 (the “later
affidavit”). The court then dismissed Heinsohn’s claims and entered judgment
against her. Heinsohn timely appealed to this court.
                                          II.
                                    LAW & ANALYSIS
A.    JURISDICTION
      As a preliminary matter, we have “an independent obligation to
determine whether-subject matter jurisdiction exists, even in the absence of a
challenge from any party.” 3 And, “[i]f at any time before final judgment it




      3   Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).



                                             4
                                         No. 15-50300
appears that the district court lacks subject matter jurisdiction, the case shall
be remanded.” 4
       In its notice of removal, C&S asserted that federal question jurisdiction
exists under 28 U.S.C. § 1331 because Heinsohn had asserted a federal law
claim under the FMLA. Heinsohn, however, later “withdrew” that federal law
claim in her memorandum in opposition to C&S’s motion for summary
judgment after stipulating that C&S might not have enough employees to be
covered by the FMLA. In his recommendations, the magistrate judge
acknowledged that Heinsohn had withdrawn the claim, and those
recommendations were adopted by the district court. Heinsohn’s federal law
claim was properly dismissed because “stipulations (including those made for
purposes of the motion only)” constitute evidence on summary judgment. 5
       Without her federal law claim, Heinsohn’s only remaining claim is her
state law claim under the TCHRA. And, as she and C&S are both residents of
Texas, we must determine whether there is supplemental jurisdiction based
on Heinsohn’s state law claim alone.
       Although the FMLA only applies to employers with a specified minimum
number of employees or more, that requirement “is an element of the claim,
not a limit upon the federal court’s subject-matter jurisdiction.” 6 After a court



       4 28 U.S.C. § 1447(c); see Arbaugh, 546 U.S. at 514 (“[W]hen a federal court
concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in
its entirety.”).
       5 FED. R. CIV. P. 56(c)(a); see Munoz v. Int’l Alliance of Theatrical Stage Emp. &
Moving Picture Mach. Operators of U. S. & Canada, 563 F.2d 205, 213 (5th Cir.
1977) (“Stipulations are a proper evidentiary basis for a summary judgment.”).
       6  Minard v. ITC Deltacom Commc’ns, Inc., 447 F.3d 352, 353 (5th Cir. 2006); see
Arbaugh, 546 U.S. at 516 (“[W]e hold that the threshold number of employees for
application of Title VII is an element of a plaintiff’s claim for relief, not a jurisdictional
issue.”).



                                                 5
                                            No. 15-50300
dismisses a federal law claim, “[it] generally retains discretion to exercise
supplemental jurisdiction . . . over pendent state-law claims.” 7 Here, the
magistrate judge and district court proceeded to resolve the state-law claim
without expressly exercising that discretion. We must do so now.
       Generally, “whether a court has subject-matter jurisdiction over a claim
is distinct from whether a court chooses to exercise that jurisdiction.” 8 “With
respect to supplemental jurisdiction in particular, a federal court has subject-
matter jurisdiction over specified state-law claims, which it may (or may
not) choose to exercise.” 9 “A district court’s decision whether to exercise that
jurisdiction after dismissing every claim over which it had original jurisdiction
is purely discretionary.” 10 Although that “determination may be reviewed for
abuse of discretion,” it “may not be raised at any time as a jurisdictional
defect.” 11 We therefore consider only whether supplemental jurisdiction exists,
not whether the district court erred in failing to consider if it should have
exercised that jurisdiction if it does exist.
       As noted, C&S alleged a basis for subject matter jurisdiction over the
federal law claim, but it did not allege supplemental jurisdiction over the state
law claim in its notice of removal. 12 Because the state law claim does not raise
a federal question and because the parties are not diverse, we consider sua



       7   Arbaugh, 546 U.S. at 514 (citing 28 U.S.C. § 1367).
       8   Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009).
       9   Id. (citing 28 U.S.C. § 1367).
       10   Id. (citing 28 U.S.C. § 1367(c)).
       11   Id. at 640 (quoting 16 MOORE’S FEDERAL PRACTICE § 106.05[4] (3d ed. 2009)).
       12It provided: “Removal of this action is proper because Plaintiff’s suit involves a
federal question. 28 U.S.C. §§ 1331, 1441(c), 1446(b). Specifically, Plaintiff’s claim arises
under 29 U.S.C. §§ 2601, et. seq., (FMLA).”



                                                 6
                                        No. 15-50300
sponte whether supplemental jurisdiction exists. 13 For there to be such
jurisdiction, the removing party “must show in his pleading, affirmatively and
distinctly, the existence of whatever is essential to federal jurisdiction.” But “if
he does not do so, the court, . . . on discovering the [defect], must dismiss the
case, unless the defect be corrected by amendment.” 14 “[I]t is not sufficient that
jurisdiction may be inferred argumentatively from averments in the pleadings,
but the averments should be positive.” 15
       The notice of removal must therefore “contain[ ] a short and plain
statement” 16 describing the basis for subject matter jurisdiction. Usually, “the
best practice is for the [removing party] to specifically invoke supplemental
jurisdiction and cite to . . . § 1367 in the jurisdictional allegations.” 17 But, “as
with pleading original jurisdiction, the failure to expressly plead supplemental
jurisdiction will not defeat it if the facts alleged in the complaint satisfy the
jurisdictional requirements.” 18
       In such an instance, the otherwise “[d]efective allegations of jurisdiction
may be amended, upon terms, in the trial or appellate courts,” 19 as long as such


       13See Songcharoen v. Plastic & Hand Surgery Assocs., P.L.L.C., 561 F. App’x 327,
332 (5th Cir. 2014) (“Although [the plaintiff]’s federal law claims were later voluntarily
dismissed, the Court may continue to exercise supplemental jurisdiction over the state law
claims under Section 1367.” (internal quotation marks omitted)).
       14   Smith v. McCullough, 270 U.S. 456, 459 (1926).
       15   Hanford v. Davies, 163 U.S. 273, 279 (1896)
       16   28 U.S.C. § 1446.
       17   FED. R. CIV. P. 8.
       18 FED. R. CIV. P. 8; see Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.
1980) (“Regarding the issue of the complaint’s deficiency in alleging proper jurisdiction, it is
well settled that where a complaint fails to cite the statute conferring jurisdiction, the
omission will not defeat jurisdiction if the facts alleged in the complaint satisfy the
jurisdictional requirements of the statute.”).
       19   28 U.S.C. § 1653.



                                               7
                                           No. 15-50300
allegations contain only “formal mistakes.” 20 We may either (1) remand so the
district court can consider whether to allow such an amendment or (2) allow
such an amendment without remand if supplemental jurisdiction is otherwise
clear from the record. 21
       It is clear from the instant record that Heinsohn’s state law claim under
the TCHRA is part of the same case or controversy as her now-dismissed
federal law claim under the FMLA, so supplemental jurisdiction does exist.
C&S, on remand, should be allowed to amend its complaint to assert
supplemental jurisdiction under § 1367.
B.     EVIDENTIARY RULINGS
       The deferential abuse of discretion standard applies when we review a
district court’s evidentiary rulings. 22 “A district court abuses its discretion
when its ruling is based on an erroneous view of the law or a clearly erroneous
assessment of the evidence.” 23 The harmless error doctrine applies to the
review of evidentiary rulings, so even if a district court has abused its
discretion, we will not reverse unless the error affected “the substantial rights
of the parties.” 24 We consider Heinsohn’s contentions that (1) the magistrate
judge and district court improperly excluded her earlier affidavit, (2) the




       20   Nadler v. Am. Motors Sales Corp., 764 F.2d 409, 413 (5th Cir. 1985).
       21 Carlton v. Baww, Inc., 751 F.2d 781, 789 (5th Cir. 1985); see also Booty v.
Shoney’s, Inc., 872 F. Supp. 1524, 1529 (E.D. La. 1995) (“This court finds that supplemental
jurisdiction over a derivative claim such as loss of consortium is not an entirely new
jurisdictional basis and that Shoney’s is allowed to amend its notice of removal to add §
1367 as a jurisdictional basis.”).
       22   Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 992 (5th Cir. 2008).
       23   Nunez v. Allstate Ins. Co., 604 F.3d 840, 844 (5th Cir. 2010).
       24   Id.; see also FED. R. CIV. P. 61.



                                                 8
                                     No. 15-50300
district court improperly excluded her later affidavit, and (3) the magistrate
judge and district court improperly excluded portions of her deposition. 25
1.    EARLIER AFFIDAVIT
      Heinsohn contends that the magistrate judge erred in striking the
portion of her earlier affidavit in which she stated that C&S fired her because
her post-partum recovery would last too long. Heinsohn, however, had no
knowledge of C&S’s reasons for terminating her, so the magistrate judge did
not abuse his discretion in striking this portion of her earlier affidavit.
2.    LATER AFFIDAVIT
      After the magistrate judge made his recommendations, Heinsohn
requested leave from the district court to produce the later affidavit. The
district court rejected the later affidavit, in part because Heinsohn provided no
reason for her delay in producing it. The court also rejected that affidavit
because it was “contradictory to her previous [deposition] testimony.” The court
noted that in her deposition she had “denied that she missed any deadlines”
but in the later affidavit she “state[ed] that if there was a missed deadline, she
would have told Escobedo about it.” The district court rightly observed that
Heinsohn provided no reason for her delay in producing the later affidavit, but
the court erred in stating that it contradicted her earlier deposition: Heinsohn
never denied that deadlines were missed by someone; she only denied that
deadlines were missed by her. Yet, because Heinsohn could very well have
produced this affidavit earlier and did not give any reason for her failing to do




      25  We also consider below Heinsohn’s contention that the magistrate judge and
district court improperly excluded evidence that the notes in the case management system
were tampered with.



                                            9
                                         No. 15-50300
so, the district court did not abuse its discretion in striking Heinsohn’s later
affidavit. 26
3.     DEPOSITION
       The magistrate judge wrote that “Heinsohn’s deposition testimony is
refuted by the e-mail exchange between Heinsohn and Leonard. Heinsohn’s
assertion that Leonard wanted a guaranteed return date is STRICKEN.”
“Except as provided in [Federal] Rule [of Evidence] 1002, ‘there is no general
rule that proof of a fact will be excluded unless its proponent furnishes the best
evidence in his power.’” 27 “Application of the [R]ule requires a resolution of the
question whether contents are sought to be proved.” 28 “[T]hat certain facts are
contained in a document does not prevent an affiant from testifying as to those
facts from her personal knowledge.” 29 Therefore, “[i]t is well-established that
Rule 1002 does not apply in situations where the mere existence of an
independent factual condition is sought to be proved, even if the condition is
contained in or effectuated through a writing.” 30 By determining that the e-
mail exchange “refuted” Heinsohn’s deposition, the magistrate judge
improperly considered the veracity of the evidence, rather than its
admissibility. Thus, the district court abused its discretion in striking the
subject testimony on the basis of the magistrate judge’s recommendation.


       26See 28 U.S.C. § 636(b)(1); Performance Autoplex II Ltd. v. Mid-Continent Cas. Co.,
322 F.3d 847, 862 (5th Cir. 2003) (quoting 5 J. WEINSTEIN & M. BERGER, WEINSTEIN’S
EVIDENCE ¶ 1002[01] (1993)).
       Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1543 (11th Cir. 1994) (quoting 5 J.
       27

WEINSTEIN & M. BERGER, WEINSTEIN’S EVIDENCE ¶ 1002[01], at 1002–3).
       28   FED. R. EVID. 1002, advisory committee notes.
       29F.D.I.C. v. Stringer, 46 F.3d 66 & n.4 (5th Cir. 1995) (“The Advisory Committee
Notes to [Rule] 1002 provide that “an event may be proved by nondocumentary evidence,
even though a written record of it was made.”).
       30   United States v. Smith, 804 F.3d 724, 730 (5th Cir. 2015).



                                               10
                                         No. 15-50300
C.     DISPOSITIVE RULINGS
       We review a motion for summary judgment de novo. 31 Summary
judgment is proper “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.” 32
All “facts and inferences [must be drawn] in the light most favorable to the
party opposing the motion.” 33 But “[u]nsubstantiated assertions, improbable
inferences, and unsupported speculation are not sufficient to defeat a motion
for summary judgment.” 34
       The TCHRA prohibits an employer from discriminating against an
employee because of the employee’s sex, 35 including “discrimination because of
or on the basis of pregnancy, childbirth, or a related medical condition.” 36 As
the TCHRA is partly intended to “provide for the execution of the policies of
Title VII of the Civil Rights Act of 1964,” 37 the “analogous federal statutes and
the cases interpreting [those statutes] guide [a court’s] reading of the
TCHRA.” 38 An employee “can prove intentional discrimination through either




       31   Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012).
       32   FED. R. CIV. P. 56(a).
       33   Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 762 (5th Cir. 2001).
       34   Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003).
       35 TEX. LAB. CODE ANN. § 21.051 (“An employer commits an unlawful employment
practice if because . . . sex, . . . the employer . . . discharges an individual, or discriminates
in any other manner against an individual in connection with compensation or the terms,
conditions, or privileges of employment . . . .”).
       36   TEX. LAB. CODE ANN. § 21.106(a).
       37   Id.
       38Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012); see
Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 231 (5th Cir. 2015); Elliott v. Horizon
Healthcare Corp., 180 F.3d 264, at *2 (5th Cir. April 27, 1999).



                                                11
                                         No. 15-50300
direct or circumstantial evidence.” 39 Although the employee’s burden of proof
remains the same regardless of which evidence the employee uses, the parties’
respective burdens of production differ. Heinsohn did not produce any direct
evidence of discrimination, but she did produce circumstantial evidence. 40
       When, as here, an employee attempts to use only circumstantial
evidence,     41   the parties’ respective burdens of production are bifurcated into
“intermediate” burdens embodied in the “steps” of the McDonnell Douglas
framework. 42 Although the employee’s “ultimate” burden of persuasion or
proof “remains at all times with the [employee],” 43 the failure of a party to meet
its burden of production at each step may allow judgment against that party.
1.     THE EMPLOYEE’S BURDEN OF PRODUCTION REGARDING DISCRIMINATION
       At the first step of the McDonnell Douglass framework, the employee
must produce evidence that, if uncontested by the employer, is sufficient to
prove each of the elements of prima facie intentional discrimination. 44 As the
magistrate judge and district court correctly noted, Heinsohn produced


       39 Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001); see Evidence;
BLACK’S LAW DICTIONARY (10th ed. 2014) (noting that circumstantial evidence is “also
termed indirect evidence”); see FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS § 3.4
(2014) (referring to “indirect or circumstantial evidence”).
        This is not to say, however, that a finder of fact may not consider direct evidence
       40

on remand.
       41Circumstantial evidence of discrimination is that “based on inference and not on
personal knowledge or observation.” Evidence; BLACK’S LAW DICTIONARY; see FIFTH
CIRCUIT PATTERN JURY INSTRUCTIONS § 3.4 (“Circumstantial evidence is evidence that
proves a fact from which [the finder of fact] can logically conclude another fact exists.”).
       42 Wallace, 271 F.3d at 219 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)); see Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (“The
McDonnell Douglas division of intermediate evidentiary burdens serves to bring the
litigants and the court expeditiously and fairly to this ultimate [burden].”).
       43   Burdine, 450 U.S. 248 at 253.
       44   Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993).



                                               12
                                          No. 15-50300
evidence sufficient to prove each of the elements of prima facie discrimination.
As that evidence was uncontested, she actually proved each of those elements,
viz. (1) she belonged to a protected class because she was pregnant, (2) she was
qualified for her position, (3) C&S took an adverse employment action against
her by terminating her, and (4) C&S treated employees who were not pregnant
more favorably because it replaced her with an employee who was not
pregnant. 45 By proving each of these elements with direct evidence, Heinsohn
produced circumstantial evidence that, if uncontested, is also sufficient to
prove that C&S had a discriminatory reason for firing her. Having determined
that the elements of prima facie discrimination exist, the only remaining
question is whether C&S had a legitimate, nondiscriminatory reason for its
discrimination. The second and third steps of the framework consider this
question.
2.     EMPLOYER’S BURDEN OF PRODUCTION REGARDING ITS REASON
       In the second step of the McDonnell Douglass framework, the employer
must produce evidence of a legitimate, nondiscriminatory reason for the
adverse employment action, apart from the inferred discriminatory reason. 46
Although Heinsohn had the burden of persuasion as to each of the elements of
prima facie discrimination in the first step, C&S’s “burden is one of production,
not persuasion [read: proof]” as to its legitimate, nondiscriminatory reason. 47
In satisfying this burden, C&S “must clearly set forth, through the




       45McDonnell Douglas Corp., 411 U.S. at 802; see Goudeau v. Nat’l Oilwell Varco,
L.P., 793 F.3d 470, 474 (5th Cir. 2015); see McLaughlin v. W & T Offshore, Inc., 78 F. App’x
334, 338 (5th Cir. 2003) (“[A]lthough [the employee] was not replaced by a single
[employee], her duties were delegated to two employees who were not pregnant.”).
       46   Bodenheimer, 5 F.3d at 957.
       47   Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).



                                               13
                                        No. 15-50300
introduction of admissible evidence, the reasons for [the adverse employment
action].” 48 This step “involve[es] no credibility assessment.” 49
       C&S met this intermediate burden of production. It produced evidence
of legitimate, nondiscriminatory reasons for terminating Heinsohn, which
refute or contest Heinsohn’s circumstantial evidence of a discriminatory
reason. C&S produced Shaw’s deposition, in which he averred that C&S
terminated Heinsohn because (1) she had missed appeals deadlines, and
(2) she had attempted to conceal this by failing to inform Escobedo and by
sending good-cause letters without Escobedo’s knowledge. 50 Although, by
producing this evidence, C&S has rebutted the presumption that Heinsohn is
entitled to judgment, the attendant inference—or circumstantial evidence—of
C&S’s discriminatory reason remains. 51 When, as here, the employer does
produce such evidence, the analysis proceeds to the third step.
3.     EMPLOYEE’S BURDEN OF PRODUCTION REGARDING EMPLOYER’S REASON
       At the third step, the employee must produce evidence, or rely on
evidence already produced, that refutes or contests the employer’s evidence of


       48   Burdine, 450 U.S. at 255.
       49 Reeves, 530 U.S. at 142 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509
(1993) (“For the burden-of-production determination necessarily precedes the credibility-
assessment stage.”).
       50C&S’s response to Heinsohn’s interrogatory requesting that it “[i]dentify all
reasons asserted for the decision to terminate [Heinsohn]” stated: “Upon review of
[Heinsohn”s] assigned files it was determined that [Heinsohn] had failed to perform as
directed and instructed by her supervisor . . . .” Its supplemental response added: “[A]nd hid
[this].”
       51The magistrate judge erred in holding that C&S had met its burden to produce
evidence sufficient to prove it had legitimate, nondiscriminatory reasons for terminating
Heinsohn. It is not up to C&S to prove that it had a legitimate, nondiscriminatory reason.
The magistrate judge also erred in suggesting that Heinsohn had a burden to produce
evidence “refuting” C&S’s evidence of its legitimate, nondiscriminatory reasons. At this
second step of the framework, Heinsohn had no burden to produce evidence of or prove
anything.



                                             14
                                        No. 15-50300
a legitimate, nondiscriminatory reason. Stated differently, the employee must
produce or rely on evidence that the employer’s legitimate, nondiscriminatory
reason was only a pretext—that is, “[a] false or weak reason . . . advanced to
hide the actual . . . reason . . . .” 52 At the last step, “[t]his [intermediate] burden
now merges with the ultimate burden of [proving] that [the employee] has been
the victim of intentional discrimination.” 53 In this sense, “the McDonnell
Douglas       framework       [itself]—with      its   presumptions       and     burdens—
disappear[s], and the sole remaining issue [is] discrimination vel non.” 54
      Significantly, the third step of the McDonnell Douglas framework yields
different results, depending on the stage at which it is applied. Once the
employee demonstrates that she met her burden of producing or relying on
evidence that refutes or contests the employer’s evidence of a legitimate,
nondiscriminatory reason, there is often a genuine issue of material fact as to
the veracity of that reason. In the context of a motion for judgment as a matter
of law, as in Reeves v. Sanderson Plumbing Products, the finder of fact has
already resolved this issue of fact at trial, so the court merely tests that finding
for sufficiency. In the context of a garden variety motion for summary
judgment, however, there has been no trial, so the court has no finding on
which to rely. In the latter context, the genuine issue of material fact precludes
summary judgment.




      52 Pretext, BLACK’S LAW DICTIONARY (emphasis added); see Burdine, 450 U.S. at
256 (“[T]he proffered reason was not the true reason for the [action].”).
      53 Burdine, 450 U.S. at 256; see Reeves, 530 U.S. at 153 (“The ultimate question in
every employment discrimination case involving a claim of disparate treatment is whether
the [employee] was the victim of intentional discrimination.”).
      54   Reeves, 530 U.S. at 142-43 (citations omitted) (internal quotation marks omitted).



                                              15
                                       No. 15-50300
       Here, at the summary judgment state, Heinsohn produced evidence
sufficient    to   contest     and    refute    C&S’s      evidence     of   a   legitimate,
nondiscriminatory reason. In so doing, she created a genuine issue of material
fact as to whether (1) C&S had a legitimate, nondiscriminatory reason for
terminating her or (2) its articulated reason was merely pretextual.
       As a preliminary observation, there is little for Heinsohn to refute or
contest. C&S produced only scant evidence of a legitimate, nondiscriminatory
reason for firing Heinsohn. “As the ultimate issue is the employer’s reasoning
at the moment the questioned employment decision is made, a justification that
could not have motivated the employer’s decision is not evidence that tends to
illuminate this ultimate issue and is therefore simply irrelevant at this stage
of the inquiry.” 55 An employer generally will satisfy its burden of production
with “contemporaneous written documentation.” 56 But contemporaneous
written documentation must do more than simply indicate that an employee
“violated certain workplace rules.” 57




       55 Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 904 (5th Cir. 2012) (quoting Patrick
v. Ridge, 394 F.3d 311, 319 (5th Cir. 2004)).
       56 Laxton v. Gap Inc., 333 F.3d 572, 580 (5th Cir. 2003); see, e.g., Davis v. Chevron
U.S.A., Inc., 14 F.3d 1082, 1087–88 (5th Cir. 1994) (“[The employer]’s affidavits and
contemporaneous evaluation forms are replete with references to [the employee]’s bad knee
and poor safety record.”). For example, when “[a]ll of the evidence of disciplinary problems
comes from memoranda or depositions written or taken after [an employee] was demoted
and, in some cases, after [an employee] filed suit,” we have noted that “[t]his after-the-fact
documentation cannot be evidence to justify a demotion because of disciplinary problems.”
Evans v. City of Houston, 246 F.3d 344, 355 (5th Cir. 2001).
       57 Turner, 675 F.3d at 903 (“Although the discharge letters state that [the
employees] were found to have violated certain workplace rules, they do not provide any
reason for [the supervisor]’s decisions to dismiss these employees: The letters are not signed
by [the supervisor]; they do not mention the employees” disciplinary histories; and they do
not give any indication that they reflect [the supervisor]’s reason for choosing to dismiss the
employees, as opposed to merely suspending them.”).



                                               16
                                      No. 15-50300
      C&S’s only contemporaneous evidence of its reason for terminating
Heinsohn is the letter in which it stated: “Based on a review of your work, it
has been decided that your employment with [C&S] has been terminated as of
October 19, 2012.” This letter, signed by Leonard, does not indicate that
Heinsohn violated any policy or even that her work was flawed or inadequate.
Neither does it indicate who decided to terminate her. Instead, C&S relies
entirely on post hoc evidence of its reason, viz, Shaw’s deposition, in which he
declared that the decision to terminate Heinsohn was his and was based on
what Escobedo and Leonard 58 had told him after her maternity had begun:
                      [I]t was brought to my attention that while
               [Heinsohn] was on leave, files were discovered that
               deadlines were missed. She had not gone to [Escobedo]
               and told him deadlines were missed, and then
               apparently there had been some type of attempt by
               [her] to fix the error, mistakes, or omission on her part,
               and that was all brought to my attention.
      Although Shaw said that “files were discovered” indicating that
“deadlines were missed,” he did not reference any specific file on which his
decision to terminate Heinsohn was based. He averred: “I do not remember
which two files I was looking at on that day, but I do remember that it appeared
that she had attempted to cover it up.” Shaw said that he did not remember
asking either Escobedo or Leonard any questions about what had occurred and
that he did not ask, nor did he need to ask, Heinsohn any questions.
      There may be an explanation for this lack of specificity. There is a
genuine issue of material fact as to whether Shaw was Heinsohn’s supervisor
and, perhaps, whether he was responsible for terminating her. 59 In his



      58   Notably, Leonard had no personal knowledge of what Heinsohn did or did not do.
      59See Thrash v. Miami Univ., 549 F. App’x 511, 522 (6th Cir. 2014) (“In cases where
intermediate supervisors harbor an impermissible bias, ‘it is proper to impute their


                                             17
                                      No. 15-50300
deposition, Shaw stated that he was the direct supervisor of all the employees
at C&S, including Heinsohn, and that he alone was responsible for firing her.
Yet, Heinsohn’s deposition evidences that: when she was hired, Escobedo and
Carvajal were the only others in the SSA section of C&S; that only Escobedo
or Carvajal reviewed her work; that they were her only direct supervisors; and
that Escobedo was the only lawyer responsible for any of her cases. Heinsohn
further averred that she never had any reason to communicate with Shaw,
although she knew who he was and would greet him when “[h]e did come into
the office here [sic] and then.” Shaw himself asserted that he was not involved
with C&S’s SSA section, but instead worked in its automobile accident section.
Indeed, if Escobedo, not Shaw, was Heinsohn’s supervisor it might have been
improper for Shaw to terminate her for following Escobedo’s instructions. 60
       In addition to Shaw’s deposition, C&S produced a number of documents,
including files from its case management system. These notes, which are
largely contemporaneous with Heinsohn’s activity, are not themselves
evidence of the reason C&S terminated Heinsohn. 61 According to Shaw, they
are evidence that Heinsohn violated C&S’s policies. But a genuine issue of
material fact does exist as to whether the notes in the case management
system were authentic. C&S has produced evidence that, if uncontested, is


discriminatory attitudes to the formal decisionmaker’ even if the formal decisionmaker did
not harbor such attitudes.” (quoting Bryant v. Compass Group USA Inc., 413 F.3d 471, 477
(5th Cir. 2005)).
       60 Haire v. Bd. of Sup’rs of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 365
(5th Cir. 2013) (noting that when an employee has “complied with her superior’s directives”
a genuine issue of material fact exists as to whether the employee has “committed any
official wrongdoing”).
       61In the record, the typewritten notes from the case management system also
contain some brief handwritten notes. Carvajal made those handwritten notes during a
meeting with Rendon. Carvajal made clear that those handwritten notes reflected what
Rendon had relayed to her, not what she had discovered herself.



                                            18
                                        No. 15-50300
sufficient to prove that the files are authentic and, therefore, admissible. 62 But,
“the authenticity of a document is a question of fact,” 63 and Heinsohn testified
that the notes are not authentic. She asserts in her deposition that the files in
the case management system have been tampered with. 64 She also contends
that anyone at C&S could have done this, because the case management
system did not contain any controls.
       If the testimony of a witness with knowledge “that an item is what it is
claimed to be” is evidence of authenticity, 65 then the testimony of a witness
with knowledge that an item is not what it is claimed must be evidence of its
lack of authenticity. The uncontested evidence indicates that Heinsohn was
primarily responsible for creating, updating, and reviewing the relevant notes
in the case management system. Her deposition therefore creates a genuine
issue of material fact as to whether the notes in question are authentic.
       Neither is it entirely clear whether the notes in the case management
system, even if authentic, constitute evidence of what Heinsohn did or did not
do. This is because it is not clear exactly what C&S required her to record in
those notes. The uncontested evidence indicates that Heinsohn did not receive


       62FED. R. EVID. 803(6). Records of regularly conducted activity are hearsay unless,
among other things, “the record was made at or near the time by . . . someone with
knowledge” and “making the record was a regular practice of that activity,” and that “these
conditions are shown by the testimony of the custodian or another qualified witness” and
that “the opponent does not show [read: produce evidence] that the source of information or
the method or circumstances of preparation indicate a lack of trustworthiness.” Id.
       63Hill v. City of Houston, 235 F.3d 1339 (5th Cir. 2000) (“[T]he ultimate
determination of whether to believe the evidence is left for the fact-finder to decide.”);
United States v. Sparks, 2 F.3d 574, 582 (5th Cir. 1993) (“[T]he jury has the ultimate
responsibility for deciding the authenticity issue.”).
        A declaration by Heinsohn and Leonard, which summarized a meeting between
       64

them, Escobedo, and Rendon six months prior to Heinsohn’s termination, reveals that
Heinsohn believed the files were being tampered with.
       65   FED. R. EVID. 901(b).



                                              19
                                     No. 15-50300
any training on C&S’s policies. In her deposition, Heinsohn declared that she
had no experience in SSA cases before she came to C&S. She also explained:
                   Well, it was a lot of learning while on the job.
             There were no—pretty much, no procedures and pol—
             in in place, no polic[ies] in place, no written policy or
             procedure in place at that time. The training that I did
             receive was very limited, and it was a two-hour, three-
             hour summary given by Maria Carbajal and that’s it.
      Heinsohn averred that, if she had questions, she would ask Escobedo or
Carvajal. When asked how long it had taken her to feel “comfortable or that
[she] had an appropriate understanding of—on what was required,” she
replied: “I always had questions. I always felt that the training was very
limited. As a matter of fact, [Rendon] and I, we often had questions about
[things] that [Carvajal] did—knew nothing about, so we had to literally call the
[SSA].” 66
      The uncontested evidence further reflects that Escobedo and Carvajal
did not closely supervise Heinsohn or Rendon. Heinsohn declared that the SSA
cases proceeded almost entirely without Escobedo: “Many times we did win
cases without [Escobedo] even touching a file.” Escobedo contended that he did,
in fact, review Heinsohn’s and Rendon’s notes on occasion to ensure that “we
don’t miss any deadlines.” Yet, Carvajal, who conducted those reviews, stated
that there was not a set “amount of months or weeks” between reviews.
Instead, she said that it “depend[ed] on how busy I am,” but that the reviews
occurred about every six months.
      C&S has not produced evidence of any written policy dictating exactly
what Heinsohn was required to include in her notes in the case management



      66 In fact, Heinsohn herself arranged for a representative of the SSA to come to C&S
to conduct training for her, Rendon, and Carvajal. The training lasted two or three hours.



                                           20
                                       No. 15-50300
system; only evidence that Escobedo and Carvajal orally instructed Heinsohn
to maintain such notes. C&S adduced evidence that Heinsohn did, in fact,
maintain notes. Yet, because there is no uncontested evidence of any policy, it
is not clear whether the notes Heinsohn maintained in the case management
system should amount to exhaustive evidence of what Heinsohn did or did not
do. For instance, it is not clear that C&S required Heinsohn to record every
telephone call she placed to or received from a client or to the SSA. To the
contrary, there is undisputed evidence that Heinsohn did not record every such
call, indicating that the notes were incomplete.
      Assuming, however, that the notes in the case management system were
authentic and complete, there is also a genuine issue of material fact as to
whether they indicate that Heinsohn violated C&S’s policies. These notes
provide the only evidence of C&S’s legitimate, nondiscriminatory reason for
terminating Heinsohn. 67 As earlier observed, Shaw insisted that C&S
terminated Heinsohn because, according to these notes, she had failed to meet
deadlines and then “tried to hide the ball and hope that no one would discover
it.” This might be a legitimate, nondiscriminatory reason for terminating
Heinsohn if she did, in fact, fail to meet deadlines and if she did, in fact,
attempt to conceal that failure. We consider each in turn. But those facts are
genuinely contested.
A.    FAILURE TO MEET DEADLINES
      In his deposition, Shaw stated: “[I]t is my policy with all the employees
under me, as well as the attorneys under me, if—if there’s . . . a missed deadline
. . . on a client’s file, then they need to come in to see me immediately. Then I
would expect that to occur. If it didn’t occur, I’d want to know why.” C&S,



      67   C&S, for example, largely did not provide its correspondence to or from the SSA.



                                              21
                                         No. 15-50300
however, has not produced any evidence that it had such a policy in place. Even
if this was Shaw’s own practice “with all the employees under me,” it is not
clear whether Heinsohn was an employee “under” him, or—if she was—
whether he made her aware of the policy. Although Shaw stated that he was
Heinsohn’s supervisor, 68 he has also indicated elsewhere that he was not. 69 In
so doing, he calls the credibility of his own testimony into dispute.
       In their own depositions, affidavits, and declarations, Escobedo,
Carvajal, Rendon, and Heinsohn 70 state that Escobedo and Caravjal, not Shaw,
were Heinsohn’s supervisors. Escobedo was the supervising lawyer, and
Carvajal was the supervising legal assistant. Again, Heinsohn stated that she
never had any interaction with Shaw because he worked in a different
section. 71 This, too, creates a genuine issue of material fact.
       But, even if Shaw’s policy applied to Heinsohn and even if he had made
her aware of it, there is no evidence that Heinsohn violated it. Shaw clarified
that, if C&S had not received notice of the event triggering the deadline, “yes,
a deadline would have been technically missed,” but also that the employee



       68   Shaw stated that he was the direct supervisor of all the employees at the firm.
       69 Shaw testified: “It would be my perception that it would be [Escobedo”s] job to
monitor—intake the information as to if errors are occurring if someone needs to be
disciplined and bring it to my attention or [Leonard]’s attention saying, Here is the specific
issues. Okay?” But: “[I]f it’s something that he thinks he can correct, for example, daily
Needle—Needles documentation, if he thinks that he can correct that, would probably
defer to him in his discussions. He should be having discussions with his employees—not
his employees. Let me rephrase that. The individual that he’s supervising. [Heinsohn] is my
employee.”
       70Heinsohn repeatedly maintained that her supervisors were Escobedo and
Carvajal. She also said that Escobedo was Carvajal’s supervisor. Heinsohn testified that
she would request time off from Escobedo and Leonard, but that she would let Carvajal
know.
       71She also stated: “I didn’t really work with [Shaw]. But [from] what I knew about
him as far as the way he tried to treat his employees [I did like him].”



                                               22
                                      No. 15-50300
would not be responsible for failing to meet that deadline. This appears to be
consistent with Escobedo’s policy as well. When asked whether, as her
supervisor, he would hold Heinsohn responsible for missing a deadline if she
was not copied on a letter notifying C&S of the event triggering that deadline,
he replied: “No. It’s not her fault.” Rendon confirmed this in her deposition. 72
Stated differently, a deadline would have been missed but not by the employee.
       Significantly, the notes from the case management system indicate that
although deadlines were missed, those deadlines were not missed by Heinsohn.
In both cases, Heinsohn’s notes indicate that the SSA did not copy her on the
notice of the event triggering the deadline. 73 Assuming, as we must, that C&S
was not copied on the notices, the deadlines were not missed by Heinsohn. This
is consistent with Heinsohn’s deposition, in which she stated that the notes
“would show somebody missing a deadline” but that, “[t]o my knowledge, I
never missed a deadline and I stand by that.”
       Shaw said that he terminated Heinsohn because the notes in the case
management system indicated that a deadline was missed by her. But, to the
contrary, the uncontested evidence indicates that the deadline was not missed
by Heinsohn, so she did not violate C&S’s policy.




       72  In her deposition, Rendon was asked: “Even though Heinsohn didn’t know about
it, she still would have been responsible for the deadline?” She responded: “No.” She was
also asked: “Would Maria Carvajal or George Escobedo hold you responsible for a deadline
if you didn’t know the deadline existed or if the letter hadn’t been sent out yet?” She
responded, in part: “I would have to say no, they wouldn’t hold us accountable . . . .”Later
on, Rendon remarked: “[If Heinsohn] wasn’t cc’d [on the notice of an event triggering a
deadline], you can only assume she didn’t miss the deadline.”
       73C&S, which adduced the notes themselves, did not adduce any evidence refuting
or contesting those notes.



                                             23
                                         No. 15-50300
B.     FAILURE TO FOLLOW UP
       Shaw declared that he “would expect any of my employees, if they’ve been
told by a client that an event [triggering a deadline] has occurred, that they
[would] at least react on that event or come to an attorney and ask them how
to react on that event.” 74 (It is not entirely clear whether, in this instance,
“expect” means “require” or merely “assume.”) Rendon likewise stated that,
although Escobedo and Carvajal “wouldn’t hold us accountable” for a deadline
if she or Heinsohn were not aware of it, they would “if they knew that we hadn’t
called the client and hadn’t followed up.”
       The notes that Heinsohn maintained in the case management system
indicate when and how she became aware of each of the deadlines that was
missed. The notes in the cases facially indicate that the SSA did not provide
C&S with notice of the event triggering the deadline, as it was required to do. 75
The notes also indicate that C&S received notice in each after the deadline had
already been missed, and that Heinsohn responded immediately by preparing
and sending a good-cause letter to the SSA. 76 In addition, the notes Heinsohn


       74 Therefore, “if a client says, oh, I received a document on the denial, you wouldn’t
blow it off. You would definitely follow up on it immediately and walk into the attorney’s
office immediately.”
       75 The SSA regulations provide: “You may appoint someone to represent you in any
of your dealings with us.” 20 C.F.R. § 404.1700; 20 C.F.R. § 416.1500. “We shall send your
representative . . . [n]otice and a copy of any administrative action, determination, or
decision . . . .” 20 C.F.R. § 404.1715(a) (emphasis added); see 20 C.F.R. § 416.1515(a). “A
representative must not . . . [t]hrough his or her own actions or omissions, unreasonably
delay or cause to be delayed, without good cause . . . .” 20 C.F.R. § 404.1740(c); 20 C.F.R.
§ 416.1540(c). “If you want us to extend the deadline to request administrative or judicial
review, you must establish that there is good cause for missing the deadline.” 20 C.F.R.
§ 405.20(a); see 20 C.F.R. § 404.911(b); 20 C.F.R.§416.411(b). “Examples of circumstances
that, if documented, may establish good cause include, but are not limited to, the
following: . . . You did not receive notice of the determination or decision . . . .” 20 C.F.R. §
405.20(b); see 20 C.F.R. § 404.911(b); 20 C.F.R.§ 416.411(b).
       76 In the first case, the client received notice of the event triggering the deadline. The
client contacted Heinsohn, who requested that the client transmit the notice by fax to her.


                                                24
                                      No. 15-50300
maintained indicate that she made contact with each client and with the SSA
before and after the event triggering the deadline. Likewise, the evidence does
not suggest that these notes were, in fact, an exhaustive and complete record
of those interactions. For example, some notes required that the reader see the
“file” with questions, and Heinsohn herself indicated that she kept separate
notes. 77 There is a genuine issue of material fact whether Heinsohn violated
C&S’s policy by failing to follow up adequately with a client or with the SSA.
C.     FAILURE TO DISCLOSE UNMET DEADLINES
       The uncontested evidence indicates that, rather than “hiding the ball,”
Heinsohn contemporaneously recorded the circumstances of each of the missed
deadlines in her notes in the case management system. All of these notes—
which provide the sole basis for C&S’s proffered legitimate, nondiscriminatory
reason for firing her—were accessible to Escobedo and Carvajal from the
moment they were created. Escobedo himself stated that they reviewed the
notes, in part to ensure that “we don’t miss any deadlines.” Escobedo also said:
“My function is mainly to making—make these cases—or the case management
of these cases, make them go forward, make sure we don’t miss deadlines,
things like that.” The only evidence of missed deadlines that C&S has produced
are Heinsohn’s own notes, which were entered contemporaneously with her
learning of the missed deadlines. Those notes were available to Escobedo and
Carvajal at all times. Again, C&S has not produced evidence that, in addition
to informing Escobedo of the missed deadlines by maintaining the notes in the



The client failed to do so. Eventually, Heinsohn received notice from the SSA directly, at
which point the deadline had been missed. It is not clear, however, whether Heinsohn had
any other contact with the client or the SSA in addition to that recorded in the notes.
       77 Heinsohn said: “You wrote [notes] down just in case the system went down, just in
case, for whatever reason , the system was—the program was manipulated with, you had
your own record and you could make sure that you kept on track of what was going on.”



                                            25
                                      No. 15-50300
case management system, Heinsohn was also required to inform him of the
missed deadlines through other means.
D.     SENDING GOOD-CAUSE LETTERS
       The uncontested evidence demonstrates that Escobedo permitted
Heinsohn to function somewhat autonomously. She stated: “Many times we did
win cases without [Escobedo] even touching a file.” In fact, it appears that
Escobedo permitted Heinsohn to prepare and sign good-cause letters on his
behalf. When asked whether Escobedo authorized Heinsohn to prepare and
send good-cause letters on his behalf, Shaw replied: “You’d have to ask him
that question.” Shaw also said: “I would expect [Escobedo] to be involved in the
decision[-]making of sending out a good[-]cause letter.” He did not say that he
or C&S had actually required this of Escobedo. Shaw remarked that he asked
Escobedo if he had signed the good-cause letters in the cases, and “[Escobedo]
said he was unaware of the entire situation until it was brought to his
attention.” This, however, is hearsay. And even if it were not, it does not resolve
whether Escobedo had provided Heinsohn with general authorization to
prepare and send good-cause letters on his behalf. 78 Shaw stated: “I don’t know
if . . . there was any supervision or oversight or approval on those letters . . . .”
       In fact, Escobedo himself said that, although “[Heinsohn] wrote a good-
cause letter to the [SSA] saying that we never got notice” on his behalf and
although he was unaware of the entire situation, Escobedo conceded that her
doing so “wasn’t necessarily my problem with it.” The uncontested evidence
indicates that Heinsohn was not required to obtain Escobedo’s authorization
before sending good-cause letters.




       78It goes without saying that, when considering evidence in the light most favorable
to Heinsohn, we consider only that evidence in the record itself.



                                            26
                                      No. 15-50300
E.     FAILURE TO COMPLETE TASKS
       Before beginning her maternity leave, Heinsohn met with Escobedo and
Rendon—but not with Carvajal—to review her pending cases. According to
Escobedo: “[P]rior to her leaving, I asked [Heinsohn], Please, Cynthia in
fairness to—to [Rendon] and everyone else here that’s [sic] going to take on
your cases, please make sure all the appeals are filed and calls are returned,
and, you know, things that are done—that need to be done get done before you
leave, and she promised me that they had been done.” 79 Heinsohn, however,
recalled it differently. She said that Escobedo had merely instructed her to
“[j]ust make sure that [Rendon] was up to speed on everything.” When asked
whether there was anything else Escobedo had instructed her to do, she
replied: “Not that I recall, no.” As a preliminary matter, there is a genuine
issue of material fact about what Heinsohn was required to do before she left
on maternity leave. 80
       Even so, the notes themselves reflect that, before leaving, Heinsohn
completed all outstanding work in her pending cases. Although Heinsohn was
aware that two deadlines had been missed because of the SSA’s failure to
provide C&S notice of the events triggering those deadlines, Heinsohn
prepared and sent good-cause letters to the SSA for both. Until the SSA ruled
on those good-cause letters, there was nothing further for her to do. 81 The notes


       79In his declaration, Escobedo stated: “I had specifically asked [Heinsohn] to make
sure there were no pending deadlines, appeals, or pending issues with any of her clients.
She said she would take care of these matters.”
       80C&S seems to suggest that Heinsohn had some obligation, before leaving, to
complete all of the work that she would have done had she not left. For instance, it asserts
that she should have prepared and filed the appeals that would become due during her
absence.
        The evidence indicates that the SSA eventually granted relief in response to both
       81

good-cause letters.



                                             27
                                       No. 15-50300
also plainly indicate that Heinsohn had updated the clients on the status of
their cases, including that deadlines were missed and good-cause letters sent.
       Escobedo, Carvajal, and Rendon all had access to Heinsohn’s notes in the
case management system, so they were at least constructively aware of the
status of each of her cases, including any missed deadlines and good-cause
letters. And, before Heinsohn left, Rendon actually knew the status of each
case, including the missed deadlines and good-cause letters.
       Rendon became aware of the missed deadline and good-cause letter in
one of the two relevant cases while Heinsohn was transferring the cases to
her. 82 Rendon stated that, even though the notes for that case indicated a
missed deadline, the deadline was not missed by Heinsohn, assuming the notes
were accurate. Rendon said that the notes indicated that Heinsohn had not
been copied on the notice of the event triggering the deadline and, “[i]f
[Heinsohn] wasn’t cc’d, you can only assume she didn’t miss the deadline.”
       Rendon learned of the missed deadline in the other relevant case on
Heinsohn’s last day. Rendon said that she answered a telephone call from the
SSA regarding the good-cause letter Heinsohn had sent on several days
earlier. 83 In her deposition, Rendon declared that “I went ahead and let
[Heinsohn] know.” She also entered a note in the case management system
indicating the same. (After Rendon “let her know” about the call, Heinsohn
entered another note in the system clarifying the status of the case.) Notably,
Rendon said in her deposition that, when she took that call and entered the




        She was asked whether she became aware of the missed deadline when
       82

“[Heinsohn] handed off the cases to you . . . that you were going through the files?” To
which she answered: “Yes, I think that’s when it was.”
       83In her declaration, Rendon stated: “Before [Heinsohn], left I was taking all the
calls and new intakes . . . .”



                                             28
                                         No. 15-50300
note, it was not even Heinsohn’s case anymore; she said “[i]t was my case.”
Rendon said that, even after becoming aware of this missed deadline in her
own case, she did not need to make Escobedo aware of it: “I did not mention it
until . . . Escobedo received the letter that [Heinsohn’s] good[-]cause [letter]
was approved.” Rendon acknowledged that, despite all this, she never asked
Heinsohn for clarification about the two cases, either before or after she left.
       At this summary judgment stage of the proceedings, the uncontested
evidence makes clear that Heinsohn acted consistently with Escobedo’s
instructions. Her alleged failure to adhere to those instructions could not have
provided a legitimate reason for firing her.
       In sum, there are genuine issues of material fact that preclude summary
judgment. To determine whether C&S’s nondiscriminatory reason for
terminating Heinsohn was legitimate or pretextual, a finder of fact must weigh
the evidence. At bottom, the magistrate judge and district court erred in
rejecting Heinsohn’s statements as self-serving and accepting Shaw’s,
Escobedo’s, Caravajal’s, and Rendon’s. Such an “approach is inconsistent with
fundamental rules governing summary judgment.” 84 “By choosing which
testimony to credit and which to discard, ‘[a] court improperly ‘weigh[s] the
evidence’ and resolve[s] disputed issues in favor of the moving party.’” 85 Doing
so is tantamount to making a credibility determination, and—at this summary
judgment stage—a court “may make no credibility determinations.” 86 Instead,
a court “must disregard all evidence favorable to the moving party that the


       84   Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 236 (5th Cir. 2015).
       85   Id. (quoting Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014)).
       86 Chambers v. Sears Roebuck & Co., 428 F. App’x 400, 407–408 (5th Cir. 2011)
(citing Chaney v. Dreyfus Service Corp., 595 F.3d 219, 229 (5th Cir. 2010)); see Whiteside v.
Gill, 580 F.2d 134, 139 (5th Cir. 1978) (“This case boils down to a credibility choice. We
cannot make that choice on the record before us.”).



                                                29
                                      No. 15-50300
[finder of fact] is not required to believe.” 87 Although a court “is not required to
accept      the    nonmovant’s      conclusory     allegations,   speculation,   and
unsubstantiated assertions which are either entirely unsupported, or
supported by a mere scintilla of evidence,” 88 a nonmovant’s statement may not
be rejected merely because it is not supported by the movant’s or its
representatives’ divergent statements.
      Simply put, Heinsohn’s statements are no more and no less self-serving
than those of the others. If we toss Heinsohn’s deposition, we must also toss
the depositions, affidavits, and declarations of the others for the same reason.
To hold otherwise would signal that an employee’s account could never prevail
over an employer’s. This would render an employee’s protections against
discrimination meaningless.
      When, as here, a motion for summary judgment is premised almost
entirely on the basis of depositions, declarations, and affidavits, a court must
resist the urge to resolve the dispute—especially when, as here, it does not
even have the complete depositions. Instead, the finder of fact should resolve
the dispute at trial.
                                           III.
                                      CONCLUSION
      For the forgoing reasons, we REVERSE and REMAND for further
proceedings consistent with this opinion. We express no view on how the finder
of fact should resolve this dispute on remand. We decide this appeal only on
the basis of the record before us at this relatively early stage.




      87   Chambers, 428 F. App’x at 407–408 (emphasis added).
      88   Id.



                                            30
