     Case: 10-10939     Document: 00511579097         Page: 1     Date Filed: 08/22/2011




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

                                                                            FILED
                                                                          August 22, 2011

                                     No. 10-10939                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DI ANN SANCHEZ,

                                                  Plaintiff - Appellant
v.

DALLAS/FORT WORTH INTERNATIONAL AIRPORT BOARD,

                                                  Defendant - Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:09-CV-373


Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Di Ann Sanchez filed suit against her former employer, alleging
discrimination and retaliation in violation of the Americans with Disabilities
Act, the Family Medical Leave Act, and the Texas Commission on Human Rights
Act. The district court granted summary judgment dismissing the suit, finding
the evidence from the defendant of nondiscriminatory reasons for her
termination to be uncontested. We AFFIRM.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-10939

                    FACTS AND PROCEDURAL HISTORY
      Dallas/Fort Worth International Airport Board (DFW) hired Di Ann
Sanchez to serve as Vice President of Human Resources in 2005. At the time
DFW hired Sanchez, its officials were aware Sanchez’s young son was afflicted
with autism and attention-deficit hyperactivity disorder. When Sanchez was
employed by DFW, her immediate supervisor at all times was Linda Thompson,
DFW’s Executive Vice President for Administration and Diversity.
      Several parties testified to an ongoing conflict between Thompson and
Sanchez. On October 12, 2006, Sanchez first requested leave time from work
pursuant to the Family Medical Leave Act (FMLA) to attend doctor’s
appointments for her son. Sanchez alleged Thompson retaliated against her for
by scheduling meetings during the doctor’s appointments and reducing
Sanchez’s responsibility without informing her. Sanchez complained to DFW’s
CEO, Jeff Fagan, about Thompson’s perceived harassment. An independent
investigation into this charge turned up no indication of discrimination.
      In 2007, DFW conducted a review of many of its managers, including
Sanchez. During this review, a discussion of Sanchez revealed several perceived
shortcomings in her work, including an inability to work with others, a lack of
commitment to the position, time management issues, and the inability to focus
on strategic goals. A consultant who assisted with the review process stated that
it was difficult to make contact with Sanchez, and that Thompson was willing
to work on her differences with Sanchez, but Sanchez was not.
      Additionally, one of Sanchez’s subordinates, Belinda Butler, left DFW’s
employ in December 2007. When Butler departed, she participated in an exit
interview in which she alleged Sanchez displayed favoritism and mismanaged
resources. An audit of these charges followed. The audit showed that Sanchez
used her assistant for personal errands, approved expenses over the budget for
her assistant’s conference fees, improperly charged her assistant’s cell phone

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                                  No. 10-10939

usage to DFW, and behaved inappropriately at a company event due to excessive
alcohol consumption.
      Before the audit was complete, Sanchez filed an EEOC complaint, alleging
retaliation and harassment in violation of the Americans with Disabilities Act
(ADA). She filed a second EEOC complaint after learning of the audit, arguing
that the audit was retaliation for filing the first EEOC charge. Based on the
audit’s findings, Fagan terminated Sanchez on June 17, 2008.
      Sanchez filed a third EEOC complaint. After receiving a right-to-sue
notice, she filed suit in Texas state court against DFW on May 29, 2009. She
alleged discrimination and retaliation in violation of the FMLA, ADA, and the
Texas Commission on Human Rights Act (TCHRA). DFW removed the suit to
federal court and moved for summary judgment. The district court granted the
motion on August 12, 2010, before the discovery deadline ended. Sanchez filed
a notice of appeal and subsequently moved for relief from judgment pursuant to
Rule 60(b) on the grounds that she acquired new evidence. The district court
denied this motion and Sanchez’s motion to seal records that came to light in the
litigation. Sanchez timely appealed.
                                 DISCUSSION
      We initially discuss Sanchez’s Rule 60(b) motion. Sanchez filed her notice
of appeal after the district court granted the defense motion for summary
judgment, but before it denied Sanchez’s Rule 60(b) motion for relief from
judgment. “[W]e have previously recognized that where a Rule 60(b) motion is
filed after the notice of appeal from the underlying judgment, a separate notice
of appeal is required in order to preserve the denial of the Rule 60(b) motion for
appellate review.” Williams v. Chater, 87 F.3d 702, 705 (5th Cir. 1996) (citations
omitted). After the post-judgment denial of her 60(b) motion, Sanchez failed to
file an additional notice of appeal.



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      The court will consider an opening brief the “functional equivalent” of a
notice of appeal if it is filed within 30 days of the denial of the Rule 60(b) motion.
See Taylor v. Johnson, 257 F.3d 470, 475 (5th Cir. 2001). Here, though, Sanchez
filed her opening brief on February 11, 2011, 63 days after the district court
denied her Rule 60(b) motion on December 10, 2010. Additionally, even if we
took up consideration of the motion, Sanchez has not demonstrated that the
evidence that served as the predicate for her Rule 60(b) motion was “newly
discovered” and “that, with reasonable diligence, [it] could not have been
discovered in time to move for a new trial under Rule 59(b) . . . .” Fed. R. Civ. P.
60(b)(2).   Therefore, we do not consider Sanchez’s motion for relief from
judgment. See Chater, 87 F.3d at 705. The new evidence upon which these
arguments depend is not properly before us and will not be considered on appeal.
For the same reason, we decline to consider Sanchez’s appeal of the district
court’s decision to deny her motion to seal records.
      We review a district court’s decision to grant a summary judgment motion
de novo. Boos v. AT&T, Inc., 643 F.3d 127, 130 (5th Cir. 2011). “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). The nonmoving party may not rely only on the
pleadings to defeat summary judgment.            See Cotroneo v. Shaw Env’t &
Infrastructure, Inc., 639 F.3d 186, 191-92 (5th Cir. 2011). The plaintiff must, by
her “own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue
for trial.” Id. (quotation marks and citation omitted).
      Sanchez’s claims arise under the FMLA, ADA, and TCHRA. Under the
TCHRA, an “employer commits an unlawful employment practice if because of
. . . disability . . . [it] discharges an individual, or discriminates in any other
manner against an individual in connection with compensation or the terms,

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conditions, or privileges of employment.” Tex. Lab. Code § 21.051(1). The ADA
prohibits employers from taking adverse employment actions against employees
“because of the known disability of an individual with whom the qualified
individual is known to have a relationship or association.”        42 U.S.C. §
12112(b)(4). It is “unlawful for any employer to discharge or in any other
manner discriminate against any individual for opposing any practice made
unlawful” by the FMLA. 29 U.S.C. § 2615(a)(2).
      Because Sanchez has failed to produce evidence of direct discrimination,
we analyze all three claims under the familiar McDonnell-Douglas framework.
See E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009);
Machinchick v. PB Power, Inc., 398 F.3d 345, 356 (5th Cir. 2005); Hunt v.
Rapides Healthcare Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001). First, Sanchez
must establish a prima facie case of retaliation. See Hunt, 277 F.3d at 768.
Second, the burden shifts to the defendant to provide a legitimate, non-
discriminatory reason for the adverse employment action. Id. If it does so,
Sanchez must then show by a preponderance of the evidence that the proffered,
legitimate reason is pretext for discrimination. See id. We assume without
deciding that Sanchez established a prima facie case of retaliation.
      DFW provided legitimate, non-discriminatory grounds for terminating
Sanchez. DFW’s reasons included misuse of company resources, improperly
sending her assistant on personal errands, and improperly approving cell phone
charges for her assistant. Additionally, DFW maintained that Sanchez abused
alcohol at a company event and had a great deal of difficulty getting along with
her supervisor, Linda Thompson. These reasons are sufficient to shift the
burden back to Sanchez.
      Sanchez cannot show the reasons given were pretext for discrimination.
She relies on evidence that was not before the district court and her own self-
serving affidavit to rebut DFW’s reasons for firing her. We have discussed the

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jurisdictional bar to the evidence Sanchez submitted post-judgment. Further,
a self-serving affidavit, without more evidence, will not defeat summary
judgment. DIRECTV, Inc. v. Budden, 420 F.3d 521, 531 & n.49 (5th Cir. 2005).
Even accepting her rebuttal to DFW’s evidence, Sanchez has failed to tie her
termination to her FMLA leave, or show that DFW did not fire her for the
reasons it stated. “The issue at the pretext stage is whether [the defendant’s]
reason, even if incorrect, was the real reason for [the plaintiff’s] termination.”
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002). The
record evidence shows DFW fired Sanchez immediately after receiving the audit
which indicated a host of indiscretions at work. Therefore, Sanchez has not
shown the reasons DFW provided for her termination were pretextual and were
not the basis for its decision to terminate her.
      AFFIRMED.




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