     Case: 10-11067     Document: 00511561899         Page: 1     Date Filed: 08/04/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           August 4, 2011

                                       No. 10-11067                        Lyle W. Cayce
                                                                                Clerk

DEBORAH HARRIS,

                                                  Plaintiff-Appellant,
v.

DALLAS INDEPENDENT SCHOOL DISTRICT,

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC 3:08-CV-2071


Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM*:
        Plaintiff, Dr. Deborah Harris, appeals from the district court’s order
granting summary judgment for defendant Dallas Independent School District
(D.I.S.D.) on her claim under the Family and Medical Leave Act (FMLA), 29
U.S.C. § 2601, et seq., which permits individuals who work for covered
employers to take temporary leave for a “serious health condition,” 29 U.S.C.



        *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.

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§ 2612. We AFFIRM.
                                       I.
      Harris worked for D.I.S.D. in various positions for approximately twenty-
two years. At the time of her termination, she was the coordinator of D.I.S.D.’s
extended-year program, charged with overseeing the summer school program.
Due to budget cuts in 2007, the extended-year program consisted only of Harris
and her secretary.
      On March 31, 2008, at Harris’s annual physical, her doctor recommended
that she get a hysterectomy, which she had been putting off for years, as soon
as possible. As a result, Harris planned to take leave under the FMLA during
May and June of 2008, right before summer school started. Harris testified that
another employee of D.I.S.D. would have to take her place while she was on
leave. Shortly thereafter, Harris’s supervisor, Vincent Reyes, and D.I.S.D.’s
Director of Academic Services, Renita Berry, held meetings with her to transfer
her work to other members of the department. Harris characterized the
attitude in those meetings as negative and not supportive, explaining that she
felt “overwhelmed” and “bombarded” with questions about transportation,
payroll, supplies, and other details about summer school. She testified that she
did not feel hostility based on anything that Berry or Reyes said, but rather
based on their tone. Harris testified that Berry questioned whether she had to
go on leave with all the preparation she still had to do for summer school and
expressed disappointment upon learning that Harris had not completed many
of the tasks expected of her. Harris further testified that Denise Collier,
D.I.S.D.’s Chief Academic Officer and Reyes’s supervisor, told her she would be
held accountable if anything went wrong while she was on her leave.
      While on FMLA leave, Harris read in the newspaper that D.I.S.D. would


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be reducing its workforce for budgetary reasons. The prior year, in 2007,
D.I.S.D. had considered eliminating the extended-year department entirely
because summer school could be run by other departments within the school
district, each of which already contributed to the program, as was the practice
in other school districts where Collier had worked. Collier was “fairly certain”
that the department should be eliminated completely. Because Reyes had just
started working at D.I.S.D., however, he convinced Collier to keep the
department for his first year of tenure. They decided to try reducing the
department from five positions to two, and Harris was demoted from director
to coordinator.
      Then, in the spring of 2008, just before Harris went on leave, Collier
directed Reyes to implement a ten-percent cut to his budget. Reyes told
everyone in his department to reduce their work scope, re-use material from
prior years, and give him more recommendations on cost cutting. Harris
admitted at her deposition that she did not get her reduction suggestions
completed before she took leave, and Reyes had to give the task to someone else.
      After receiving the suggested cuts from across Reyes’s department, he and
Collier again considered eliminating the extended-year department. Reyes
testified that those discussions occurred in either March or April, and that he
first suggested eliminating the department as a way to meet his reduced
budget. When asked whether those discussions occurred before or after Harris
requested FMLA leave, Reyes testified, “Well before that.” Collier testified that
annual budget decisions begin sometime in February or March, but the board
does not ultimately approve the budget until June. In other words, Collier
testified that she first heard about the budget reductions and layoffs in
February or March. Across her division, close to ninety people lost their jobs


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during the same time period.
      When Harris returned from leave on June 16, Reyes notified her that her
department, consisting of her and an assistant, would be eliminated effective
August 31, 2008. The one-year contract she had received in 2007, when
D.I.S.D. first considered eliminating her department, would not be renewed.
Reyes offered to give her a recommendation for another job, but she declined.
Although Harris’s assistant was able to find another position in D.I.S.D., Harris
never could. The extended-year department has not been reinstated, even
though D.I.S.D. still holds summer school to the same extent that it did
previously, and no one has been hired to take Harris’s place.
      Harris filed suit in state court in Dallas, and D.I.S.D. removed the case
to the district court. D.I.S.D. filed a motion for summary judgment, which the
district court granted.
                                       II.
      This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Ballard v. Burton, 444 F.3d
391, 396 (5th Cir. 2006). “The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
      In order to survive summary judgment, Harris must raise a genuine issue
of material fact that D.I.S.D. unlawfully terminated her employment as
retaliation for exercising her rights under the FMLA, using the framework set
out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Hunt v.
Rapides Healthcare Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001). Harris must
first establish a prima facie case of FMLA retaliation by showing that she
(1) was protected under the FMLA, (2) suffered an adverse employment action,


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and (3) was treated less favorably than an employee who had not requested
leave under the FMLA or the adverse decision was made because she sought
protection under the FMLA. Mauder v. Metro. Transit Auth., 446 F.3d 574, 583
(5th Cir. 2006). Once she does so, the burden shifts to D.I.S.D. to establish a
legitimate, non-discriminatory reason for the adverse employment action. Id.
Thereafter, Harris has the opportunity to show that D.I.S.D.’s stated reason is
a pretext for discrimination. Id.
      The district court found that Harris had established a prima facie case of
FMLA retaliation, and that finding is unchallenged on appeal. The burden
therefore shifted to D.I.S.D. to articulate a legitimate, non-discriminatory
reason for her termination. D.I.S.D. asserted that she was terminated because
of budget tightening and the resulting workforce reduction. The district court
held that Harris did not raise a genuine issue of material fact as to whether
that proffered non-discriminatory reason was pretextual.
                                       A.
      This case turns on whether Harris raised a genuine issue of material fact
regarding pretext. Harris argues that the timing of the termination decision
establishes pretext, implying that a decision made after her notice of FMLA
leave would do so automatically. Harris’s argument misses the point. “The
pretext inquiry focuses on the authenticity of the employer’s proffered reason.”
Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 594 (5th Cir. 2007). In
other words, we review de novo whether the reason given by D.I.S.D. was false,
“unworthy of credence,” or otherwise unpersuasive. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). Therefore, although the timing
of the decision can establish a prima facie case of retaliation and is a factor in
considering pretext, alone it is insufficient to demonstrate pretext. Swanson v.


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Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). Ultimately, Harris
must demonstrate that, but for filing for FMLA leave, she would not have been
terminated. Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999).
      As the district court noted, while the exact date of the ultimate decision
to eliminate the extended-year department cannot be pinpointed, there is
substantial evidence to show that D.I.S.D.’s proffered reason—budget cuts—was
not pretextual. D.I.S.D. was implementing broad reductions in workforce.
Collier had never worked in a school where the summer school program was run
by its own department and, as a result, had discussed eliminating the
department in 2007 to meet the budget reduction requirements. Instead, based
on Reyes’s request, Collier and Reyes decided to keep the department for one
year and to reduce its staff from five to two people. The department was then
eliminated entirely in 2008—one year later, just as Reyes had requested. The
department has not been reinstated since its elimination, and no one has been
hired to replace Harris. In a similar context, we have relied on the elimination
of a plaintiff’s position as demonstrating that an employer’s non-discriminatory
reason was not pretextual. See Leal v. BFT, Ltd. P’ship, No. 10-20411, 2011 WL
1659573, at *4 (5th Cir. Apr. 28, 2011) (unpublished).         Likewise, here,
regardless of the timing of the decision, Harris has not brought forth any
evidence of pretext to survive summary judgment.
      Harris further argues that the revocation of her travel authorization
demonstrates that D.I.S.D. decided to fire her after her request for FMLA leave,
meaning D.I.S.D.’s proffered reason was pretextual.        She has offered no
evidence to support her contention, however. Before requesting FMLA leave,
Harris had received travel authorization from Collier to attend a work-related
conference. After Harris notified Reyes of her request for leave, Reyes and


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Collier decided to revoke the authorization because of the limited number of
workdays remaining prior to Harris’s leave and the amount of work she had left
to do. The conference would have required that Harris be gone for three of the
remaining fourteen days before her leave. D.I.S.D. offered a legitimate, non-
discriminatory reason for the revocation: that Harris had only fourteen business
days between when the decision was made and when her leave began, which
was the busiest time of year for the extended-year program, and the conference
required that she be absent from work for three of those days. She has not
produced any evidence demonstrating that D.I.S.D.’s legitimate business
decision was “unworthy of credence.” Reeves, 530 U.S. at 147.
                                       B.
      We next consider whether Harris presented sufficient evidence to support
a finding of bias, which in turn supports an inference of retaliation. “An oral
statement exhibiting discriminatory animus may be used to demonstrate
pretext or . . . it may be used as additional evidence of discrimination. The
remark must, first, demonstrate discriminatory animus and, second, be made
by a person primarily responsible for the adverse employment action or by a
person with influence or leverage over the formal decisionmaker.” Laxton v.
Gap Inc., 333 F.3d 572, 583 (5th Cir. 2003) (citation omitted).
      Harris argues that she raised an inference of retaliation by showing that
(1) Reyes initially questioned the timing of her leave and expressed a negative
attitude toward Harris’s leave request, (2) Collier revoked her travel
authorization, (3) Harris filed a complaint with D.I.S.D.’s Office of Professional
Responsibility (OPR) that was never investigated, (4) Harris received a negative
performance review, (5) Harris could not find another job within D.I.S.D. and
in fact only got one interview, and (6) at her deposition, school-board member


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Ellis made hostile statements about Harris’s leave.
      First, there is insufficient evidence supporting an inference of bias based
on the meetings held after Harris requested FMLA leave. These meetings
occurred during the busiest time of the year for the extended-year department
and involved making arrangements for completing Harris’s outstanding work
in preparation for summer school. Harris testified that she felt “overwhelmed”
and “bombarded” with questions about the details of summer school, including
transportation, payroll, and supplies. She testified that nothing particularly
hostile was said. In fact, although she testified that Berry questioned whether
Harris needed to go on leave, she then recanted that testimony. These vague
allegations of a hostile tone do not demonstrate discriminatory animus. Nor
has Harris established that Collier and Reyes, those primarily responsible for
the termination decision, made any discriminatory remarks.
      Second, as discussed above, the revocation of Harris’s travel authorization
does not demonstrate bias, hostility, or animus, but rather demonstrates a
business decision made by Harris’s supervisors based on the amount of work
left to do before Harris went on leave.
      Third, the fact that OPR “refused to investigate [her] complaint” and “did
not bother to contact the employees that Dr. Harris complained about” does not
demonstrate discriminatory animus. Harris filed an anonymous complaint with
OPR after her trip was cancelled, reporting that a pre-approved business trip
had been cancelled, she was made to look incompetent in a meeting, others had
come into her office unannounced, and people commented that she had not
finished her work. The Director of Investigations at OPR submitted an affidavit
giving two reasons that OPR did not investigate her claim: First, she submitted
it anonymously and gave no contact information. Second, “the complaint did


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not reflect the type of employee misconduct or wrongdoing the OPR is charged
with investigating.” He noted that, while the events may have been frustrating,
they did not constitute a violation of law.
      Harris has not shown that the failure to investigate her complaint was
based on discriminatory animus. The decision not to investigate her OPR
complaint was not “made by a person primarily responsible” for her
termination. See id. Neither has Harris established that the OPR’s handling
of her anonymous complaint had anything to do with her requested FMLA
leave. In fact, she has not even shown that the OPR investigator assigned to
her case knew that she had requested leave.
      Fourth, the argument that Harris’s poor final performance review
established bias also fails. As the district court noted, she mischaracterizes her
review. Harris received an overall rating of “proficient,” which Reyes testified
was a good rating and qualified her for a salary increase. She received a mark
of “below expectations” in two areas: core values, and interpersonal skills and
teamwork. Although Harris claims she had never received “below expectations”
marks in any category, it is undisputed that she had received a “proficient”
overall rating many times.        Indeed, Reyes had conducted a mid-year
performance review with Harris well before she requested leave, suggesting
that she should improve her interaction with others. The review about which
she complains, which was neither poor nor different from her other reviews,
does not show discriminatory animus.
      Fifth, Harris contends that the fact that she was unable to find another
job within D.I.S.D. demonstrates FMLA retaliation.          We have previously
required in a similar context that a plaintiff demonstrate both that there were
job openings for which she applied and that she was qualified for those jobs.


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See, e.g., Stroud v. BMC Software, Inc., No. 07-20779, 2008 WL 2325639, at *7
(5th Cir. June 6, 2008) (unpublished). Harris has not met that standard.
Harris testified that she “can’t be certain” that her supervisors influenced the
decisions not to hire her, but it was “possible” that they did because “[she] felt
like [she] was qualified.” She then acknowledged that it was also possible that
they did not interfere in her job applications. Indeed, Harris and Reyes both
testified that Reyes offered to give her a recommendation for other positions,
but she declined. Harris also testified that she had applied for at least five
other positions in 2007, long before her FMLA leave, and had not received offers
for any of those positions either. Harris cannot show that her failure to find
another position within D.I.S.D. was at all related to her FMLA leave.
      Finally, the statements made by a D.I.S.D. school board member after the
termination decision do not establish discriminatory animus. After Harris’s
position was eliminated, she sought review of the decision through the D.I.S.D.
Board of Trustees Subcommittee. Leigh Ann Ellis and another board member
affirmed the termination decision in a 2-1 vote. Later, at her deposition, Ellis
said that “perhaps if Dr. Harris was so concerned about her job, she could have
waited ‘til after summer school to have a hysterectomy . . . . Wouldn’t it have
shown that maybe she was more concerned, if she was willing to put it off for
maybe six or eight weeks . . . to ensure the program went well, and then, to
have her operation?” She went on to clarify that Harris’s health was the most
important thing in deciding the timing of her FMLA leave. She testified
repeatedly that Harris’s FMLA leave had not factored into her decision to affirm
the termination, which, in her view, was simply a non-renewal of a term
contract.
      The district court recognized that “Ellis’s statements during her


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deposition are unfortunate,” but that they were insufficient to raise a genuine
issue of material fact concerning whether D.I.S.D. unlawfully terminated
Harris. We agree. In order to demonstrate discriminatory animus, Ellis’s
remark must have been made by “a person primarily responsible for the adverse
employment action or by a person with influence or leverage over the formal
decisionmaker.”    Laxton, 333 F.3d at 583.       Ellis, who was not primarily
responsible for the termination decision, made her statements over two years
after the decision. Further, Ellis repeatedly testified that Harris’s medical leave
played no role in her decision to affirm the decision made by Reyes and Collier.
Harris has not put forth any evidence of bias, animus, or hostility.
                                       III.
      Harris next argues that D.I.S.D. intentionally withheld or destroyed
documents that related to its budget discussions and allegedly would have
shown when the decision to terminate Harris was made. The documents in
question are notes that Reyes testified he made during the meeting in which he
and Collier decided to eliminate the extended-year program. In an affidavit,
Reyes later stated that he had conducted an extensive search for the notes and
could not find them. Harris argues that these documents would have shown
that the decision to eliminate Harris’s department was made after her notice of
FMLA leave and that the fact that they are missing raises a genuine issue of
material fact as to pretext.
      Harris waived this issue. Reyes’s affidavit was filed in response to
Harris’s motion to compel. Harris then filed a brief reply, stating, “at this time,
given the affidavit of Mr. Reyes stating there are no further documents, the
discovery dispute at issue appears resolved.”        “A waiver is ordinarily an
intentional relinquishment or abandonment of a known right or privilege.”


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Johnson v. Zerbst, 304 U.S. 458, 464 (1938). A waiver “occurs by an affirmative
choice by [a party] to forego any remedy available to him, presumably for real or
perceived benefits resulting from the waiver.” United States v. Dodson, 288 F.3d
153, 160 (5th Cir. 2002). By withdrawing her motion to compel, Harris chose to
forego the remedy available to her.
                                      IV.
      In sum, Harris has not brought forth a genuine issue of material fact on
pretext. Accordingly, the judgment of the district court is AFFIRMED.




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