            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 02-30401
                                         Summary Calendar
                                         _______________



                                     ELVIN RAY WILLIAMS,

                                                              Plaintiff-Appellant,

                                              VERSUS

                              ROY O. MARTIN LUMBER CO. LLC,

                                                              Defendant-Appellee.


                                   _________________________

                            Appeal from the United States District Court
                               for the Western District of Louisiana
                                          m 01-CV-317
                                  _________________________

                                         September 30, 2002



Before HIGGINBOTHAM, SMITH, and                         Elvin Williams appeals a summary judgment
  CLEMENT, Circuit Judges.                           in favor of his former employer, Roy O.
                                                     Martin Lumber Co. LLC (“Martin”),1 on
JERRY E. SMITH, Circuit Judge:*
                                                        1
                                                          The caption in Williams’s complaint reads
                                                     “Elvin Ray Williams versus Roy O. Martin Lum-
   *
     Pursuant to 5TH CIR. R. 47.5, the court has     ber Co., L.L.C., d.b.a. Colfax Creosoting Co.”
determined that this opinion should not be           The actual name of the Colfax site is “Colfax
published and is not precedent except under the      Treating Company.” Williams worked at Martin’s
limited circumstances set forth in 5TH CIR. R.       Colfax site, so the parties and the district court
47.5.4.                                                                                   (continued...)
Williams’s claim of retaliatory discharge under            times in January 2000, none related to his
the Family and Medical Leave Act (“FMLA”),                 daughters’ health. He twice missed part of the
29 U.S.C. § 2601 et seq. Williams also                     workday to take his daughters to the dentist.
appeals three related procedural orders. We                On the same day, he arrived late after taking
find no error and affirm.                                  them to school and left early without ex-
                                                           planation. He also missed a day of work for a
                      I.                                   court appearance. In late January, therefore,
   Williams worked as a utility laborer for                Lindsay and Milazzo again met with Williams
Martin from July 1993 to April 2000. He fre-               and warned him that further absences or tar-
quently missed work, from a few hours to a                 diness would result in progressive discipline of
few days, in part because his daughters suffer             a one-day suspension, then a three-day
from sickle cell anemia. For most of                       suspension, then discharge.
Williams’s tenure at Martin, his supervisor,
Larry Lindsay, tried to accommodate                            This meeting did little to affect Williams’s
Williams’s absences. In particular, Lindsay                attendance; he missed work three times in the
allowed Williams to used accrued annual leave              first two weeks of February. Again, none was
to care for his children; if Williams had no               related to his daughters’ physical problems.
annual leave, Lindsay would allow him to take              After the third absence, Lindsay, Milazzo, and
unpaid leave.                                              Albert Johnson, the plant manager, met with
                                                           Williams to discuss these absences and to sus-
    In December 1999, however, Martin began                pend him for one day.
to enforce its leave policy more vigorously be-
cause of high rates of absenteeism and tardi-                 Williams then failed to report to work after
ness. These new measures fell especially hard              his one-day suspension, which promptly
on Williams, not only because of his afflicted             earned him another meeting on February 25
daughters, but also because Martin suspected               with Lindsay, Milazzo, and Johnson; a three-
Williams was performing odd jobs for other                 day suspension; and a warning that future ab-
employers on Martin’s time. Lindsay and Guy                sences or tardiness would result in discharge.
Milazzo, the human resources manager, met                  Lindsay, Milazzo, and Johnson also asked Wil-
with Williams in late December to discuss his              liams whether he wanted to apply for FMLA
excessive absences and tardiness. Lindsay and              leave to care for his children, but Williams
Milazzo required Williams to begin accounting              specifically declined to request FMLA leave.
for every time he missed work, not just the
times he missed because of his daughters’                     After Williams returned from his
affliction.                                                suspension, his attendance improved briefly.
                                                           Aside from an authorized absence on March 1,
   Williams nonetheless missed work five                   to care for his daughters, he did not miss any
                                                           work during March. He did arrive late for
                                                           work on April 5, but Martin excused the tar-
   1
    (...continued)                                         diness at the time because of Williams’s im-
often referred to the defendant as “Colfax.” In this       proved attendance record in March.
appeal, however, the caption refers only to “Roy O.
Martin Co. LLC”; we therefore refer to the                    With no earlier notice, Williams announced
defendant as “Martin.”

                                                       2
around noon on April 24 that he needed the              vorable to the non-moving party, “show that
afternoon off to care for his daughters. Lind-          there is no genuine issue as to any material
say refused to give permission, because he              fact.” Anderson v. Liberty Lobby, Inc., 477
needed Williams for a busy afternoon at the             U.S. 242, 249-50 (1986). A dispute about a
site. Williams left anyway and did not return,          material fact is “genuine” if the evidence
so Martin fired him the next day.                       would permit a reasonable jury to return a
                                                        verdict for the non-moving party. Id. at 248.
                        II.                             The court must draw all reasonable inferences
   Williams filed a complaint with the Equal            in favor of the non-moving party. Id. at 255.
Employment Opportunity Commission, which
did not pursue the investigation but issued a              At the same time, not all disputes or all in-
right-to-sue letter. Williams then sued Martin,         ferences are reasonable, and the court is not
asserting claims for retaliatory discharge under        obliged to accept mere assertions. Thus, once
(1) title VII, (2) 42 U.S.C. § 1981, (3) the            the moving party initially has shown “that
FMLA, and (4) LA. REV. STAT. ANN.                       there is an absence of evidence to support the
§ 23.332. The district court entered a                  non-moving party’s cause,” Celotex Corp. v.
protective order during pre-trial discovery to          Catrett, 477 U.S. 317, 325 (1986), the non-
restrict discovery of Martin’s employee                 moving party must produce “specific facts”
personnel files to records related to                   showing a genuine factual issue for trial. FED.
absenteeism and FMLA leave. At the pre-trial            R. CIV. P. 56(e); Matsushita Elec. Indus.
conference, the court confined the questions            Corp. v. Zenith Radio Corp., 475 U.S. 574,
for trial to the FMLA claim only.                       587 (1986). The non-moving party cannot
                                                        rest on mere conclusional allegations and de-
   The parties then filed cross-motions for             nials, speculation, improbable inferences, un-
summary judgment. Just three days before the            substantiated assertions, and legalistic
court granted Martin’s motion for summary               arguments, none of which will substitute for
judgment on the FMLA claim, Williams moved              specific facts showing a genuine issue for trial.
to strike certain exhibits attached to Martin’s         TIG Ins., 276 F.3d at 759.
motion for summary judgment and for
sanctions for discovery violations. The court                              IV.
granted Martin’s motion for summary                                         A.
judgment and dismissed, as moot, the motion                Congress adopted the FMLA “to meet the
to strike and for sanctions.                            needs of families in a manner that
                                                        accommodates the legitimate interests of
                       III.                             employers.” Bocalbos v. Nat’l W. Life Ins.
   We review a summary judgment de novo                 Co., 162 F.3d 379, 382 (5th Cir. 1998); see
and apply the same standards as did the district        also 29 U.S.C. § 2601(b)(1)-(3). “The
court. TIG Ins. Co. v. Sedgwick James, 276              enactment of the FMLA was predicated on
F.3d 754, 759 (5th Cir. 2002). Summary                  two fundamental concerns—the needs of the
judgment is appropriate only if “the pleadings,         American workforce, and the development of
depositions, answers to interrogatories, and            high-performance organizations.” 29 C.F.R.
admissions on file, together with the affidavits,       § 825.101(b).
if any,” when viewed in the light most fa-


                                                    3
    The FMLA both gives employees certain                                     B.
entitlements and forbids employers from inter-             Williams alleges that Martin retaliated for
fering with those entitlements.2 Bocalbos, 162          the exercise of FMLA rights. In Chaffin v.
F.3d at 383. Among its entitlements, the                John H. Carter Co., 179 F.3d 316 (5th Cir.
FMLA gives an eligible employee a right to              1999), we held that the McDonnell Douglas
twelve weeks of unpaid leave within a twelve-           burden-shifting scheme for federal anti-
month period to care for a newborn or newly             discrimination claims applies to an FMLA
adopted child, for a close family member who            retaliatory discharge case.3 See McDonnell
has a “serious health condition,” or for oneself        Douglas Corp. v. Green, 411 U.S. 792 (1973).
if one has a “serious health condition.” 29
U.S.C. § 2612(a)(1). An employee may take                  McDonnell Douglas burden shifting has
this leave intermittently if medically necessary.       three stages in an FMLA retaliatory discharge
29 U.S.C. § 2612(b)(1). After an employee               case. First, the plaintiff must establish a prima
returns from FMLA leave, he is entitled to              facie case of retaliation by showing that he (1)
return to the same or an equivalent job. 29             exercised rights guaranteed by the FMLA and
U.S.C. § 2614(a)(1). The FMLA also forbids              (2) was discharged (3) as a result of exercising
an employer from interfering with the exercise          those rights. Bocalbos, 162 F.3d at 383.
of these rights and from discriminating among           Second, once the plaintiff establishes a prima
employees who exercise these rights. 29                 facie case, the defendant must articulate a
U.S.C. § 2615(a).                                       legitimate and non-retaliatory reason for the
                                                        discharge. Id. Third, after the defendant of-
   When an employee needs FMLA leave for                fers such a reason, the burden returns to the
foreseeable medical treatment for himself or            plaintiff to “produce substantial probative evi-
family members, he has certain duties to his            dence that the proffered reason was not the
employer. First, he must make a reasonable              true reason . . . and that the real reason was
effort to schedule the treatment to avoid undue         the plaintiff’s” exercise of FMLA rights.
disruption to the employer’s operations. 29             Chaffin, 179 F.3d at 320. The plaintiff cannot
U.S.C. § 2612(e)(2)(A). Second, he must                 succeed merely by showing that the proffered
provide the employer with thirty days’ advance          reason was pretextual, but must also show that
notice of the treatment, or as much notice as           retaliation “was the real reason.” Id.
practicable if notice cannot be given thirty days
in advance. 29 U.S.C. § 2612(e)(2)(B).                                         C.


                                                           3
                                                             We reserved the question whether McDonnell
                                                        Douglas burden shifting applies to a claim for de-
   2
    The FMLA does not apply to all employers or         nial of the underlying FMLA benefits. 179 F.3d at
employees . For example, the act covers only            319 n.13. For a persuasive explanation why Mc-
employers with more than 50 employees, 29 U.S.C.        Donnell Douglas burden shifting should not apply
§ 2611(4), and employees who worked at least            to such a claim, see Diaz v. Fort Wayne Foundry
1,250 hours in the last twelve-month period, 29         Corp., 131 F.3d 711 (7th Cir. 1997). Diaz also
U.S.C. § 2611(2)(A). The parties, however, do not       concludes, however, that “[i]t is not clear what a
dispute that the FMLA applies to both Martin and        burden-shifting approach could add” to a retali-
Williams.                                               ation case. Diaz, 179 F.3d at 713.

                                                    4
   As the district court did, and as so often            purportedly to care for his daughters.5 Against
happens with McDonnell Douglas burden                    this long record of absenteeism and tardiness,
shifting, we assume arguendo that Williams               Martin has more than satisfied its burden to
presented a prima facie case of retaliatory dis-         articulate a legitimate and non-retaliatory
charge. We therefore concentrate on two                  reason for discharging Williams.
main questions: (1) whether Martin articulated
a legitimate, non-retaliatory reason for the                We further agree with the district court that
discharge and (2) whether Williams raised a              Williams produced no evidence to raise a gen-
genuine issue of material fact that any                  uine issue of material fact that this proffered
proffered reason was pretextual and that the             reason was pretextual and that Martin really
true reason for his discharge was to retaliate           discharged him for exercising his FMLA
against him for exercising his FMLA rights.              rights. Though a scintilla of evidence will not
                                                         suffice to defeat a motion for summary
    We agree with the district court that Martin         judgment, Williams could not produce even
articulated a legitimate and non-retaliatory rea-        that. As the district court aptly stated,
son for Williams’s discharge, i.e., his habitual         “[n]othing in the record suggests that [Martin]
and unexcused absences and tardiness. Martin             harbored a secret motive to deny Williams[’]
notified Williams of the new measures to                 FMLA rights or to retaliate against him for the
enforce its leave policies in late 1999. Nev-            assertion of those rights.”
ertheless, Martin missed work on eight
separate occasions in the first six weeks of                 To the contrary, Martin seems the very pic-
2000, unrelated to his daughters’ sickle cell            ture of a family-friendly employer. Lindsay
anemia.4                                                 flexibly allowed Williams to take off work
                                                         from 1993 through 1999 to care for his
    Moreover, Williams’s supervisors met with            daughters. Martin also gave Williams repeated
him on four separate occasions to remind him             chances to improve his work attendance before
of the need for regular work attendance, to              finally discharging him. Williams’s supervisors
discipline him for absences, and to warn him             even encouraged him to apply for FMLA
that future violations would result in                   leave, but he refused their entreaties. 6 That
discharge. Martin then excused Williams’s                Martin finally fired Williams after he claimed
first absence in April 2000 because of                   to leave work to care for his daughters cannot
Williams’s improved attendance in March                  refute the overwhelming evidence of his poor
2000, but Martin apparently reached its wits             attendance record and Martin’s good faith;
end when Williams disobeyed Lindsay’s direct             otherwise, an employer could never discharge
order not to leave work on April 24, 2000,

                                                            5
                                                             Williams failed to give reasonable notice to
                                                         Martin of his need for leave as required by the
                                                         FMLA. 29 U.S.C. § 2612(e)(2).
   4
     Williams twice missed work to take his
                                                            6
daughters to the dentist, but a dental appointment           Martin was anything but a heartless employer.
is not a “serious health condition” under the            At Martin’s request, Lindsay once bailed Williams
FMLA. 26 U.S.C. § 2601(11); see also 29 C.F.R.           out of jail after he had been arrested outside of
§ 825.114(b).                                            work for driving while intoxicated.

                                                     5
or even discipline an employee for good                    These exhibits came from Bass’s personnel
reason in proximity to an allegedly protected              files. Martin used these five exhibits to
act.                                                       counter Williams’s claims of racial
                                                           discrimination. The exhibits show that Martin
                       V.                                  fired Bass, who is white, for a similar record of
    Williams appeals three procedural orders.              absenteeism at roughly the same time it fired
He contends that the district court improperly             Williams, who is black.
entered (1) an order dismissing his motion to
strike and for sanctions as moot, (2) a pre-trial              Williams complained in his motion, and
order limiting the questions for trial to the              Martin admits on appeal, that Williams did not
FMLA claim, and (3) a protective order                     receive these documents during the initial
restricting discovery of Martin’s employee per-            discovery phase before the parties submitted
sonnel files. We review each kind of order for             their motions for summary judgment. Martin
abuse of discretion.7                                      explains that it failed to produce these
                                                           documents because of Bass’s unusually
                       A.                                  complicated employment history at Martin.9
   Williams filed a motion to strike and for a             Martin had hired and released Bass three
finding of contempt and sanctions three days               times, so Bass had three separate personnel
before the district court entered summary                  files at Martin. Although Williams reviewed
judgment. Accordingly, the court dismissed                 and receive documents from at least one of
the motion to strike and for sanctions as moot.            these files during discovery, he did not review
Williams appeals the dismissal.                            and receive documents from all three files.
                                                           Martin attributes this oversight to
   Williams primarily sought to strike five ex-            inadvertence, which Williams does not dispute.
hibits related to Samuel Bass’s employment at
Martin, which exhibits were attached to                        The district court did not abuse its
Martin’s motion for summary judgment.8                     discretion by dismissing the motion as moot.
                                                           The Bass exhibits did not prejudice Williams,
                                                           because the court did not cite them in its
   7
      United States v. $9,041,598.68, 163 F.3d             memorandum opinion, nor did it discuss Bass
238, 252 (5th Cir. 1998) (orders on motions to             at all. Moreover, it is not as if Martin stood by
strike and for sanctions); Rushing v. Kansas City          and withheld evidence favorable to Williams.
S. Ry., 185 F.3d 436, 509 (5th Cir. 1999) (pre-trial
orders); Leatherman v. Tarrant County Narcotics
                                                              8
Intelligence & Coordination Unit, 28 F.3d 1388,                (...continued)
1394 (5th Cir. 1994) (protective orders).                  ation and hence has waived his claims on appeal
                                                           related to these four employees. United States v.
   8
     Williams also complained about failure to pro-        Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000).
duce documents related to Keith McCain, Jared
                                                              9
Wittington, Terry Hazelton, and Patrick Clark,                 Martin did not have an opportunity to respond
also employees of Martin. Martin explains, how-            to Williams’s motion to strike, because the district
ever, that Williams either received or had the op-         court dismissed the motion as moot three days after
portunity to inspect these documents if they ex-           Williams filed it. Martin now responds to the
isted. Williams does not controvert this explan-           motion in its brief, and Williams does not
                                      (continued...)       controvert its explanation.

                                                       6
The documents, after all, show that Martin did         entered it, and we will not hear arguments or
not discriminate against black employees who           objections not presented to the district court.
exercised their FMLA rights.                           Little v. Liquid Air Corp., 37 F.3d 1069, 1071
                                                       n.1 (5th Cir. 1994) (en banc). We also note
    Williams, then, could not have used these          that Martin briefed the racial discrimination
documents to aid his case. Moreover, he was            claims in its motion for summary judgment, so
fully aware of Bass’s employment his-                  the summary judgment can be construed as a
torySSWilliams stipulated, before moving for           ruling on the racial discrimination claims as
summary judgment, that Bass was a white em-            well as the FMLA claim.
ployee whom Martin fired in early 2000 for
excessive absenteeism.                                                       C.
                                                          In the early stages of discovery, Williams
   Finally, Williams had ample time to examine         moved to compel inspection of Martin’s em-
these documents or request further discovery           ployee personnel files, and Martin moved for
after receiving them. Martin filed its motion          a protective order. The district court denied
for summary judgment, with the Bass exhibits           Williams’s motion and entered a protective
attached, on January 31, 2002. Williams did            order to limit discovery of the personnel files
not file his response until March 8, and the           to records of absenteeism and FMLA leave.
discovery phase was not scheduled to end until         Williams argues that this order impeded his
April 7. Under these circumstances, any error          discovery of relevant facts.
was harmless. FED. R. CIV. P. 61; Tagupa v.
Bd. of Dirs., 633 F.2d 1309, 1312 (9th Cir.                The court did not abuse its discretion. Wil-
1980).                                                 liams apparently believes that he had an
                                                       inviolable right to rummage through these
                       B.                              files. Not so. Employee personnel files
   After a pre-trial conference, the district          contain much irrelevant but sensitive and
court entered an order limiting the questions          potentially embarrassing information, for
for trial to the FMLA claim. Williams argues           example, alimony and child support
that this order effectively dismissed his racial       garnishment, tax records, and drug test results.
discrimination claims without adequate notice          Martin understandably wanted to protect its
and an opportunity to respond.                         employees’ privacy rights against needless
                                                       discovery.
   The court did not abuse its discretion. Rule
16, FED. R. CIV. P., vests particularly broad             Williams asserts that the protective order
authority in the district court to manage the          prevented him from discovering relevant facts
course of litigation with a pre-trial conference       about the kinds of leave taken by employees,
and order. Barrett v. Atl. Richfield Co., 95           but this information comes within the rubric of
F.3d 375, 380 (5th Cir. 1996). The court had           “absenteeism” in the order, and the record
good reason to limit the questions for trial to        shows that he received the information. In
the FMLA claim, because the record contains            short, the protective order judiciously balanced
no evidence whatsoever of racial                       the privacy rights of Martin’s non-party
discrimination. Furthermore, Williams never            employees with Williams’s right to relevant
objected to the pre-trial order after the court        and needed information.


                                                   7
AFFIRMED.




            8
