     Case: 19-50670      Document: 00515330492         Page: 1    Date Filed: 03/03/2020




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

                                                                              FILED
                                      No. 19-50670                        March 3, 2020
                                                                         Lyle W. Cayce
MARGARITA GOMEZ,                                                              Clerk


              Plaintiff - Appellant

v.

OFFICE ALLY, INCORPORATED; BRIAN O'NEILL,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:18-CV-1101


Before KING, JONES, and COSTA, Circuit Judges.
PER CURIAM:*
       Office Ally, Inc. fired Margarita Gomez, a human resources manager in
its San Antonio office. Gomez was fired soon after returning from leave she
took to assist her mother who suffers from dementia. She sued Office Ally and
its owner, Brian O’Neill, for various claims under the Family and Medical
Leave Act (FMLA) and the Texas Commission on Human Rights Act (TCHRA).
The district court granted summary judgment for Office Ally on all claims.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 19-50670
Gomez appeals that decision as to two claims: FMLA retaliation and
associational discrimination under the TCHRA.
      We agree that summary judgment was proper on Gomez’s FMLA
retaliation claims for essentially the reasons the district court gave. Although
Gomez establishes a prima facie case of retaliation, she cannot carry her
burden of showing either that Office Ally’s proffered reasons for terminating
her were pretext or that Office Ally had mixed motives for terminating her.
Gomez was subject to a performance improvement plan before she took FMLA
leave. And numerous employees filed complaints about her job performance,
detailing incidents that occurred before she took leave. At the same time, other
Office Ally employees took FMLA leave without repercussion. In fact, O’Neill
encouraged Gomez to take FMLA leave. Given the strong evidence supporting
Office Ally’s proffered reason for terminating Gomez—namely, poor
performance—she has not pointed to evidence creating a fact issue as to
whether her taking FMLA leave was a reason Office Ally terminated her. See
Grubb v. Sw. Airlines, 296 F. App’x 383, 390–91 (5th Cir. 2008) (per curiam)
(affirming summary judgment in part because the suspicious timing of the
plaintiff’s FMLA application and firing did not establish that his efforts to take
FMLA leave were a reason he was fired “in light of an eighteen month record
of warnings and performance problems”).
      The district court granted summary judgment on Gomez’s TCHRA
associational discrimination claim on the ground that Texas law would not
recognize such a claim. Texas courts have not addressed that question, and we
do not need to. See Spencer v. FEI, Inc., 725 F. App’x 263, 267 (5th Cir. 2018)
(per curiam) (observing that the Fifth Circuit had not “explicitly recognized” a
cause of action for associational discrimination even under the ADA but
assuming without deciding that one existed to affirm summary judgment on
ADA and TCHRA claims (quoting Grimes v. Wal-Mart Stores Tex., L.L.C., 505
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                                 No. 19-50670
F. App’x 376, 380 n.1 (5th Cir. 2013) (per curiam))). Assuming arguendo that
an associational disability discrimination claim exists under Texas law, Gomez
has not produced enough evidence to allow it to reach a jury. See McGruder v.
Will, 204 F.3d 220, 222 (5th Cir. 2000) (“We need not accept the district court’s
rationale and may affirm on any grounds supported by the record.”).
      Gomez pursues only a direct evidence theory of liability, asserting that
two comments made by O’Neill prove discriminatory animus. The first is
O’Neill’s recommendation that Gomez should not move her mother in with her
because it would be costly for her and could affect her work. The second is
O’Neill’s complaint that Gomez stopped “pulling her weight . . . . when she
moved her mother in[.]”       Those comments are not direct evidence of
discrimination because they do not tie Gomez’s termination to O’Neill’s alleged
animus. See Jones v. Overnite Transp. Co., 212 F. App’x 268, 273 (5th Cir.
2006) (per curiam) (explaining that supervisor’s racist comments were not
direct evidence because they “lack[ed] the indicia of specificity and causation
required to be direct evidence of race discrimination”); see also id. at 273–74
(citing examples of remarks constituting direct evidence); see generally Brown
v. CSC Logic, Inc., 82 F.3d 651, 655–56 (5th Cir. 1996) (holding that
discriminatory remarks count as direct evidence only if, among other things,
they relate to the challenged employment decision). And Gomez does not try
to use the remarks as part of a broader circumstantial case to show that O’Neill
was discriminating against her because of her mother’s condition.
      The judgment is AFFIRMED.




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