     Case: 10-20551 Document: 00511426658 Page: 1 Date Filed: 03/28/2011




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

                                                 FILED
                                                                           March 28, 2011
                                     No. 10-20551
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




KATHRYN BAUMEISTER,

                                                   Plaintiff-Appellant,

versus

AIG GLOBAL INVESTMENT CORPORATION,

                                                   Defendant-Appellee.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CV-1533




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Kathryn Baumeister appeals a summary judgment in favor of AIG Global
Investment Corp. (“AIGGIC”) on claims of sex and pregnancy discrimination. Be-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-20551

cause a reasonable jury could not find that AIGGIC’s proffered legitimate reason
for laying her off was pretextual, we affirm.


                                            I.
      Baumeister began working at a company called American General in 1989
as a staff accountant. American International Group, Inc. (“AIG”), purchased
American General in 2001 and transferred Baumeister to its High Yield Group
within AIGGIC, where she worked as a portfolio analyst. The High Yield Group
manages AIG investments, including the AIG general accounts, separate ac-
counts (non-AIG affiliated accounts, such as pensions and the general accounts
of other companies), mutual funds, collateralized bond obligations (“CBO’s”), and
credit default swaps (“CDS’s”). There was only one other portfolio analyst in the
group, Shawn Parry. Baumeister twice took pregnancy leave, once from Septem-
ber to November 2006 and again from July to October 2008.
      In January 2009, AIGGIC informed Baumeister that she was being elimin-
ated as part of a reduction-in-force (“RIF”) effective March 2009. The RIF was
a response to AIG’s September 2008 liquidity crisis caused by the deterioration
of U.S. credit markets. To stabilize the company, AIG management developed
a plan to sell many of its units, including parts of AIGGIC. To position itself for
that sale, AIGGIC instituted a restructuring plan that included eliminating non-
essential positions.
      Matt Meyer, the managing director and head of U.S. public fixed income
for AIGGIC, asked Bryan Petermann 1 to recommend one portfolio analyst and
three credit analysts in the High Yield Group for the RIF. Petermann recom-
mended laying off Baumeister, Ravi Klamath (male), Mike Lanier (male), and


      1
       The record does not say what Petermann’s position was at the time. Later, he became
the managing director and head of U.S. public fixed income for AIGGIC. He now works else-
where.

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                                       No. 10-20551

Joanna Moon (female). Petermann did not recommend the other portfolio anal-
yst, Parry, for the RIF.


                                              II.
       We review a summary judgment de novo. Floyd v. Amite Cnty. Sch. Dist.,
581 F.3d 244, 247 (5th Cir. 2009). Summary judgment is appropriate where
there is no genuine issue of material fact and the movant is entitled to judgment
as a matter of law. Id. at 247-48. In other words, it is appropriate if a rea-
sonable jury could not return a verdict for the nonmovant. Turner v. Baylor Ri-
chardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). We review the evidence
in the light most favorable to the nonmovant and resolve all reasonable doubts
in the nonmovant’s favor. Boston Old Colony Ins. Co. v. Tiner Assocs., 288 F.3d
222, 227 (5th Cir. 2002).
       Baumeister claims that AIGGIC discharged her because of her sex and be-
cause she took pregnancy leave.2 Title VII prohibits an employer from “fail[ing]
or refus[ing] to hire or . . . discharg[ing] any individual, or otherwise . . . discrim-
inat[ing] against any individual with respect to his compensation, terms, condi-
tions, or privileges of employment, because of such individual’s . . . sex . . . .” 42
U.S.C. § 2000e-2(a)(1) (2006). The Family and Medical Leave Act entitles “an
eligible employee . . . to a total of 12 workweeks of leave during any 12-month
period . . . [b]ecause of the birth of a son or daughter of the employee and in or-
der to care for such son or daughter,” 29 U.S.C. § 2612(a)(1)(A), and, upon return
from leave, entitles “any eligible employee . . . to be restored by the employer to
the position of employment held by the employee when the leave was com-



       2
         Baumeister also brings a sex discrimination claim under state law, but it is evaluated
under precisely the same standards as her title VII claim. See 2 TEX . LAB . CODE ANN .
§ 21.051; McClaren v. Morrison Mgmt. Specialists, Inc., 420 F.3d 457, 461-62 (5th Cir. 2005)
(citing Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 475 (Tex. 2001)).

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                                       No. 10-20551

menced[] or . . . to be restored to an equivalent position,” § 2614. The Act also
renders it “unlawful for any employer to discharge or in any other manner dis-
criminate against any individual for opposing any practice made unlawful by
[the FMLA].” § 2615.
       Where, as here, there is no direct evidence of discrimination, a plaintiff can
rely on circumstantial evidence. Rutherford v. Harris Cnty., 197 F.3d 173, 180
n.4 (5th Cir. 1999). Baumeister’s title VII and FMLA claims are then both gov-
erned by the McDonnell-Douglas burden-shifting framework.3 First, the employ-
ee must demonstrate by a preponderance of the evidence a prima facie case of
discrimination. Id. If he succeeds in doing so, the burden shifts to the employer
to “articulate some legitimate, nondiscriminatory reason for the employee’s rejec-
tion.” Id. at 253 (citation omitted). If the employer does so, then the employee
must prove by a preponderance of the evidence that the reasons were pretextual.
Id. Because Baumeister’s title VII and FMLA claims largely overlap, we discuss
them together.
       Because we decide in favor of AIGGIC, we assume arguendo that Baumeis-
ter has satisfied her prima facie case as to her title VII and FMLA claims. We
therefore proceed to the second McDonnell-Douglas step: whether AIGGIC has
articulated a legitimate, non-discriminatory reason for the termination. See
Burdine, 450 U.S. at 253. AIGGIC has proffered a legitimate, non-discrimina-
tory reason for terminating Baumeister: that she was terminated as part of a
RIF because Petermann believed her primary job function was to support CBO’s,
a product the company was winding down, whereas Parry’s primary responsibili-
ties were supporting separate accounts and mutual funds, functions that were



       3
         E.g., Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (title VII
claim); Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999) (FMLA claim), partial-
ly abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
146-49 (2000).

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                                   No. 10-20551

“not going away.”
      We therefore turn to step three: whether AIGGIC’s reason was pretextual.
Baumeister does not contest that AIG was winding down its CBO’s. Indeed, she
testified that AIG was not issuing new CBO’s and that, although there were six
left “in some sort of active state” at the time of her layoff, they were “fading out.”
Rather, she contests Petermann’s claim that CBO support was her primary job
function and argues that his reason was pretextual because of the difference be-
tween her and Parry’s qualifications. But even viewing the facts in the light
most favorable to Baumeister, a reasonable jury could not find that she has prov-
en pretext by a preponderance of the evidence.


                                         A.
      With respect to Baumeister’s job function relative to Parry’s, Baumeister
testified that when she originally started on her job, she spent half her time
helping the managers for the CBO’s that AIG had issued and the other half anal-
yzing CBO’s that others had issued. By 2007, 70% of her work involved CBO’s;
in 2008, she said it was “40 to 50 percent.” Her 2008 performance appraisal
gives 40% weight to her “[w]ork toward closing down 1-2 of the CBO transac-
tions,” 40% weight to “[i]ncreas[ing] knowledge” of trading and analytics sys-
tems, portfolio guidelines and securities held, 15% to moving the group to a
“more automated portfolio reporting system,” and 5% to complying with her pro-
fessional code of ethics. The appraisal lists work aiming at closing down the
CBO’s as her only “operational” business goal. Managing separate accounts or
mutual funds is not listed as a goal. See id.
      In addition, although Baumeister testified that her workload involved a
“balance” of CBO and portfolio management work, she considered herself “pig-
eon-holed into doing mostly CBO work.” She also testified that she ended up do-
ing more CBO work, and Parry did more portfolio management work. It appears

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                                        No. 10-20551

that the extent to which she did portfolio management work and Parry did CBO
work was that “[i]f he had availability to work on a question that came up on the
CBOs and I was working on something else, he did that. If something needed
to be done on the portfolio management side and I had availability, then I did
that.” Therefore, Petermann’s claimSSthat he included Baumeister in the RIF
because, as between her and Parry, Petermann viewed her as the CBO specialist
and Parry as the separate accounts and mutual funds specialistSSis buttressed,
rather than contradicted, by Baumeister’s evidence. A reasonable jury could
therefore not conclude by a preponderance of the evidence that Petermann’s ex-
planation is “unworthy of credence.” 4


                                               B.
       Baumeister argues that AIGGIC’s proffered legitimate, non-discriminatory
reason for laying her off is pretextual because of the difference between her qual-
ifications and Parry’s. We can infer pretext if the plaintiff was “clearly better
qualified than the employee[]” who was not laid off.5 But aside from the fact that
Baumeister had more tenure in the High Yield Group (and with AIGGIC in gen-
eral) than did Parry, there is no evidence in the record as to Parry’s qualifica-
tions, making any comparison between him and Baumeister impossible. Bau-
meister asserts that Parry, unlike her, does not have an MBA or a CPA, but she
does not point to any evidence in the record saying so; the parts of the record she

       4
         See Reeves, 530 U.S. at 143 (“[T]he plaintiff may attempt to establish that he was the
victim of intentional discrimination ‘by showing that the employer’s proffered explanation is
unworthy of credence.’” (quoting Burdine, 450 U.S. at 256)).
       5
          See Celestine v. Petroleos de Venez. SA, 266 F.3d 343, 356-57 (5th Cir. 2001) (“[I]n an
employment discrimination case, a plaintiff may survive summary judgment and take his case
to the jury by providing evidence that he is clearly better qualified than the employee selected
for a position at issue.”); cf. Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58 (2006) (per curiam)
(holding that courts may not infer pretext only if a difference in qualifications “jump[s] off the
page to slap you . . . in the face,” but declining to decide whether courts can require “clearly
superior” or “significantly better” qualifications (citations omitted)).

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                                  No. 10-20551

points to say nothing of the sort. Indeed, her EEOC charge contradictorily as-
serted that Parry “recently finished his MBA and is sitting for his Certified Pub-
lic Accountant examination.” Moreover, there is no evidence about where Parry
or Baumeister obtained their MBA’s, so there is no indication of the relative
strengths of the training they received. Finally, there is no evidence about Par-
ry’s performance reviews; even with worse credentials, he may be a superior em-
ployee. A reasonable jury would not be able to find on this evidence that Bau-
meister was “clearly” better qualified than Parry.


                                        C.
      With respect to her pregnancy discrimination claim only, Baumeister ar-
gues that the temporal proximity between her return from pregnancy leave and
her discharge demonstrates that AIG’s laying her off as part of its RIF was pre-
text. Although temporal proximity between FMLA-protected leave and a subse-
quent termination may be sufficient evidence of pretext, courts “uniformly hold
that the temporal proximity must be ‘very close.’” Clark Cnty. Sch. Dist. v. Bree-
den, 532 U.S. 268, 273 (2001). A three-month period, standing alone, is insuffi-
cient. See Richmond v. Oneok, Inc., 120 F.3d 205, 209 (10th Cir. 1997). The dis-
trict court erroneously considered Baumeister’s temporal-proximity evidence in
isolation, rather than in conjunction with her other pretext evidence, but even
considered in conjunction with the other evidence, it is insufficient for a reasona-
ble jury to conclude that Petermann’s legitimate reason for laying her off is “un-
worthy of credence.” See Reeves, 530 U.S. at 143.
      The summary judgment is AFFIRMED.




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