                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        February 19, 2004

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                       _____________________                     Clerk

                     Nos. 03-20292 & 03-20500
                       _____________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
                                                Plaintiff-Appellant,

                               versus

DUNBAR DIAGNOSTIC SERVICES INC.;
VILLAGE ULTRASOUND CLINIC INC.,
                                               Defendants-Appellees.

__________________________________________________________________

          Appeals from the United States District Court
           for the Southern District of Texas, Houston
                       USDC No. H-02-CV-555
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:*

     The Equal Employment Opportunity Commission (“EEOC”) brought

this action against Dunbar Diagnostic Services, Inc. (“Dunbar”), on

behalf of Leticia Gonzalez for discrimination and retaliation in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq. (West 2004).   In this consolidated appeal the EEOC

challenges the district court’s grant of judgment as a matter of

law (“JMOL”) in favor of Dunbar on both causes of action and its

award of attorneys’ fees to Dunbar.     We REVERSE.



     *
       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this opinion should not be published and is not precedent except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.
     "[J]udgment as a matter of law is proper after a party has

been fully heard by the jury on a given issue, [when] there is no

legally sufficient evidentiary basis for a reasonable jury to have

found for that party with respect to that issue."     Klumpe v. IBP,

Inc., 309 F.3d 279, 287 (5th Cir. 2002); FED. R. CIV. P. 50.      In

deciding a motion for JMOL, the court must review the record as a

whole, draw all reasonable inferences in favor of the nonmoving

party and do so without weighing the evidence or making credibility

determinations.    Delano-Pyle v. Victoria County, 302 F.3d 567, 572

(5th Cir. 2002).

     With respect to the EEOC’s discrimination claim, the district

court’s grant of JMOL was improper.       First, given the minimal

burden, the EEOC put forth sufficient evidence of its prima facie

case to preclude JMOL:     (1) Gonzalez is a member of a protected

group; (2) she was qualified for the health insurance benefits; (3)

these benefits were denied; and (4) this denial was differentially

applied to Gonzalez because all other eligible employees were

offered benefits.     See Rubinstein v. Administrators of Tulane

Educational Fund, 218 F.3d 392, 399 (5th Cir. 2000).

     Second, the EEOC also produced evidence that Dunbar’s non-

discriminatory reason for not providing benefits to Gonzalez --

that she failed to ask for them -- was false.   Reeves v. Sanderson

Plumbing Prod., Inc., 530 U.S. 133, 148 (2000).     This evidence of

falsity, coupled with the EEOC’s prima facie case, was sufficient

to preclude JMOL with respect to the EEOC’s discrimination claim.

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     Dunbar’s contention that, because Gonzalez would not have

opted    for   insurance       coverage,       she       was    not   damaged,     is   also

contested on this record.           Although Gonzalez was receiving free

insurance from Medicaid, she testified that she would have signed

up for coverage under the more comprehensive Dunbar policy had it

been offered.      Moreover, because the EEOC brought this claim,

prospective injunctive relief relating to Dunbar’s future conduct

also could be available.          E.E.O.C. v. Waffle House, Inc., 534 U.S.

279, 287 (2002).

     Finally, with respect to the EEOC’s retaliation claim, the

district court’s grant of JMOL was similarly improper.                         Initially,

it is clear that Gonzalez engaged in protected activity -- filing

a discrimination charge against Dunbar.                        Fabela v. Socorro Indep.

School   Dist.,    329    F.3d    409,     414       (5th      Cir.   2003).       Although

Gonzalez’s termination was termed by Dunbar as a resignation, the

EEOC produced evidence that Gonzalez was, in fact, discharged --

which is an adverse employment action. Hernandez v. Crawford Bldg.

Material Co., 321 F.3d 528, 531 (5th Cir. 2003).

     Gonzalez testified that she was involuntarily terminated. And

the letter sent by Dunbar to Gonzalez stated that her threatening

a lawsuit “resulted in [her] resignation.”                        This letter could be

interpreted by a jury as an involuntary resignation or termination,

or that “a causal connection exists between that protected activity

[hiring a      lawyer    and    threatening          a    lawsuit]     and   the    adverse

employment action.”        Id.

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     Dunbar nevertheless argues that Gonzalez cannot recover for

retaliation because, in being unable to attend work, she was not

“qualified” for her job.      (Her doctor had prescribed temporary

bedrest to help with pregnancy complications.)     In this respect,

Dunbar urges this panel to apply Holtzclaw v. DSC Communications

Corp., 255 F.3d 254 (5th Cir. 2001), which held, under the Age

Discrimination in Employment Act, 29 U.S.C. § 623(d) (West 2004),

that a plaintiff who sought re-employment was required to prove

that he was qualified for his position.     Id. at 259-60.

     Holtzclaw involved a failure to rehire claim brought by a

plaintiff who was on long-term disability and, according to earlier

determinations, was “unable to work at all” and “would never be

able to return to work.”   Id. at 257.    In this case, however, the

EEOC is bringing a claim for wrongful discharge.   There has been no

determination that Gonzalez suffers from a long-term disability, or

that she was not qualified.    (Indeed, Dunbar implicitly admitted

that Gonzalez was qualified by offering her clerical work in lieu

of medical leave -- and then terminated her before her reply.)

     In short, whether Gonzalez was terminated because she was not

“qualified” or for some impermissible reason -- the central issue

of the retaliation claim -- remains an issue for the trier of fact.

We therefore decline Dunbar’s invitation to extend the Holtzclaw

requirements to this particular case, and find that JMOL was

inappropriate.



                                  4
       Accordingly, the district court’s grant of Dunbar’s motion for

JMOL with respect to the EEOC’s discrimination and retaliation

claims is REVERSED and the case is REMANDED such that a jury may

consider the evidence on both sides of both claims.

       Further, because Dunbar is no longer a prevailing party, the

district court’s award of attorneys’ fees is REVERSED. 42 U.S.C.A.

§ 2000e-5(k) (West 2004). Similarly, because the EEOC’s appeal was

not frivolous, Dunbar’s request for fees in prosecuting this appeal

is DENIED.    FED. R. APP. P. 38.

       This panel also DENIES the EEOC’s request to reassign the case

to another district judge on remand.                Although the trial judge may

have been disapproving toward the EEOC and Gonzalez, this fact is

not sufficient to rise to the extraordinary standard required for

reassignment.       Liteky v. U.S., 510 U.S. 540, 555-56 (1994).

       Finally, we hold that the district court did not abuse its

discretion     in      dismissing         Village    Ultrasound      Clinic,      Inc.

(“Village”),      as   a   party    because     Dunbar    conceded    that   it   has

sufficient employees to be considered an “employer” under Title

VII.    Williams v. Hoyt, 556 F.2d 1336, 1341 (5th Cir. 1977).                     In

this respect only the judgment of the district court is AFFIRMED.

       Based on the above, we REVERSE the district court’s grant of

JMOL and attorneys’ fees to Dunbar; AFFIRM the district court’s

dismissal    of     Village;       DENY     Dunbar’s     request   for   appellate

attorneys’ fees and the EEOC’s request for reassignment; and REMAND



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the action for further proceedings not inconsistent with this

opinion.

                  AFFIRMED in part; REVERSED in part; REMANDED.




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