     Case: 12-30013     Document: 00511867656         Page: 1     Date Filed: 05/25/2012




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

                                                                            FILED
                                                                           May 25, 2012

                                       No. 12-30013                        Lyle W. Cayce
                                                                                Clerk

MARTHA LUSHUTE,

                                                  Plaintiff-Appellant,
v.

STATE OF LOUISIANA, DEPARTMENT OF SOCIAL SERVICES,

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              Case No. 3:10-cv-00252


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Plaintiff Martha Lushute appeals the dismissal of her claims for
retaliation for taking intermittent leave under the Family Medical Leave Act,
29 U.S.C. § 2601, et seq. (FMLA), on summary judgment. Two discriminatory
actions by the defendant are alleged: a “needs improvement” performance rating
in April 2008 and a change in her work schedule in May 2009 from a four day/
forty hour week to a five day / forty hour week. Lushute argues that there are
genuine issues of fact regarding defendant’s motivation for taking these actions.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30013

      The FMLA permits employees to take reasonable leave from their jobs for
medical reasons. Section 2615(a)(2) of the FMLA makes it “unlawful for any
employer to discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this chapter.” To state
a prima facie case for retaliation under § 2615(a)(2), a plaintiff must show that:
      (1)   she was protected by the FMLA, and
      (2)   she suffered an adverse employment decision; and either
      (3)   a) that she was treated less favorably than an employee who
            had not requested leave under the FMLA; or
            b) the adverse decision was made because she took FMLA
            leave.

Hunt v. Rapides Healthcare Sys., L.L.C., 277 F.3d 757, 768 (5th Cir. 2001). After
a plaintiff demonstrates a prima case of FMLA discrimination, the burden of
production rests on the defendant to articulate a legitimate, non-discriminatory
reason for its decision to institute the adverse employment action against the
plaintiff. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004);
Richardson v. Monitronics Int’l, Inc., 434 F.3d 327 (5th Cir. 2005). If the
defendant does so, then the plaintiff must either prove the proffered reason is
untrue, i.e. a pretext for discrimination, or prove that the proffered reason, while
true, was only one of the reasons for its conduct, another motivating factor of
which was retaliatory for plaintiff’s exercise of a protective right. Rachid, 376
F.3d at 312-13. If plaintiff proves an illegitimate motivating factor existed, the
defendant has the opportunity to demonstrate that it would have taken the same
action in the absence of the impermissible motivating factor. Id.
      The district court found that Lushute failed to make out a prima facie case
of discrimination and failed to put into genuine issue any material fact which
might prevent judgment as a matter of law.
      As to the poor performance rating, the district court found that the
plaintiff could not overcome the defendant’s same decision defense. Lushute


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                                 No. 12-30013

does not specifically address what evidence in the record creates a genuine issue
as to this employment action. In addition, the district court found that once the
court excluded allegations outside the two year statute of limitations window,
the uncontroverted facts demonstrated that the April 2008 review occurred after
Lushute’s first formal FMLA request in July 2008, negating any causal
connection between the employment action and Lushute’s exercise of her rights
under the FMLA. We agree.
      As to the change in Lushute’s work schedule, the district court found that
the change was not an adverse employment action. Again, we agree. Materially
adverse actions are not limited to ultimate employment decisions but include
any actions that would dissuade a reasonable employee from exercising his
rights under the FMLA. Burlington Northern & Santa Fe Ry. v. White, 548 U.S.
53, 126 S. Ct. 2405, 2409, 165 L. Ed. 2d 345 (2006). In other words, an employee
suffers an "adverse employment action" if "a reasonable employee would have
found the challenged action materially adverse, which in this context means it
well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination." McArdle v. Dell Prods., L.P., 293 Fed. Appx. 331, 337
(5th Cir. 2008)(unpublished) (quoting Burlington Northern & Northern Santa Fe
Railway Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), and
applying the expanded definition of adverse employment action to FMLA cases),
see also Pryor v. Wolfe, 196 Fed. Appx. 260, 263 (5th Cir. 2006)(unpublished);
Breneisen v. Motorola, Inc., 512 F.3d 972, 979 (7th Cir. 2008). The change in
Lushute’s work schedule, basically a shift change, from a four day week to a five
day week with no change in total hours or compensation, is not an ultimate
employment decision under pre-Burlington Northern jurisprudence. Hunt, 277
F.3d at 769. In addition, the record reflects that a four day work week is an
alternative schedule that is sometimes offered as a privilege to DSS employees.
It is not a right. DSS treated other workers similarly, switching them from a

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                                   No. 12-30013

four to five day work week when they were unable to adequately manage their
case loads. This action would not have dissuaded a reasonable worker from
making or supporting a charge of discrimination.
      Accordingly, we agree that Lushute has not made out a prima facie case
of retaliation under FMLA and the district court’s judgment dismissing her
claims on summary judgment was correct. This decision could also be justified
on the basis of inadequate briefing by the plaintiff. Lushute argues only that
issues of fact exist as to the defendant’s motivations for changing her work
schedule. She makes the assertion that “Defendant admitted that it considered
the time she was off from work on leave pursuant to the FMLA as a reason for
taking said action.”     However, her argument consists entirely of a legal
discussion relating to the mixed motive analysis, which authority the district
court also cited. Critically, she did not relate the legal discussion to the facts of
this case or provide citations to the record to support her assertion of improper
motivation. See Fed. R. App. Proc. 28(a)(9)(A).            We need not consider
inadequately briefed issues.
AFFIRMED.




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