     Case: 10-10396    Document: 00511265498         Page: 1    Date Filed: 10/18/2010




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

                                                  FILED
                                                                       October 18, 2010

                                    No. 10-10396                         Lyle W. Cayce
                                  Summary Calendar                            Clerk



BRENDA L. COTHRAN,

                                                  Plaintiff–Appellant
v.

JOHN POTTER, Postmaster General,

                                                  Defendant–Appellee




                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 3:08-CV-785


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
           Brenda Cothran appeals the district court’s grant of summary judgment
on her Title VII retaliation claim in favor of her employer, John Potter,
Postmaster General. We AFFIRM.
                          FACTS AND PROCEEDINGS
           Cothran, a black woman, was employed by United States Postal Service
(“USPS”) where she processed on-the-job injury claims. In 2006, Cothran filed


       *
         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not be published and is not precedent except under the limited circumstances set forth in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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a complaint with USPS’s Equal Employment Office, alleging that her
supervisor, Angie Fuentes, who is Hispanic, discriminated against Cothran on
the basis of her race. Cothran alleges that Fuentes subsequently retaliated
against her by giving her a negative performance evaluation in 2006. Cothran
also alleges that Fuentes retaliated against her by denying her requests for
leave under the Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq.
(“FMLA”), and her requests for annual leave on two other occasions.
                           STANDARD OF REVIEW
      “We review the district court’s grant of summary judgment de novo.”
Fahim v. Marriot Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008).
Summary judgment is appropriate only “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” F ED. R. C IV. P. 56(c).
                                  DISCUSSION
      To establish a prima facie case of retaliation under Title VII a plaintiff
must show: (1) that the plaintiff engaged in activity protected by Title VII; (2)
that an adverse employment action occurred; and (3) that a causal link existed
between the protected activity and the adverse action. Evans v. City of Houston,
246 F.3d 344, 352 (5th Cir. 2001). After the plaintiff establishes a prima facie
case, the burden shifts to the employer to show a legitimate, nonretaliatory
reason for the adverse employment action. McCoy v. City of Shreveport, 492
F.3d 551, 556 (5th Cir. 2007). The employer’s burden is one of production, not
persuasion, and does not involve a credibility assessment. Id. The burden then
shifts back to the plaintiff to show either: “(1) that the defendant’s reason is not
true, but is instead a pretext for [retaliation] (pretext alternative); or (2) that
the defendant’s reason, while true, is only one of the reasons for its conduct, and

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another ‘motivating factor’ is the plaintiff's protected [activity] (mixed-motive[s]
alternative).” Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)
(third alteration in original); see also Smith v. Xerox Corp., 602 F.3d 320, 326
(5th Cir. 2010). Under the pretext alternative, the plaintiff “bears the ultimate
burden of proving that the employer’s proffered reason is not true but instead
is a pretext for the real . . . retaliatory purpose. To carry this burden, the
plaintiff must rebut each . . . nonretaliatory reason articulated by the
employer.” McCoy, 492 F.3d at 556. Under the mixed-motive theory, if the
plaintiff shows that the plaintiff’s protected activity was a motivating factor,
then the burden shifts to the employer to show that the adverse employment
decision would have been made regardless of the retaliatory animus. See
Rachid, 376 F.3d at 312.
      The district court found that Cothran engaged in a protected activity
when she filed a complaint with the USPS’s Equal Employment Office and that
she suffered adverse employment actions in the form of a negative performance
review and denial of her request for leave under the FMLA. But the district
court also found that Cothran failed to make a prima facie case of retaliation
because she failed to show a causal connection between her protected activity
and the adverse employment actions. To establish a causal connection, Cothran
relies on the close timing of her protected activity and the adverse employment
actions. Two days after Fuentes learned of Cothran’s protected activity, Fuentes
gave Cothran an unfavorable performance review and Fuentes denied Cothran’s
FMLA leave request approximately two months later. The combination of
temporal proximity and knowledge of a protected activity may be sufficient to
satisfy a plaintiff’s prima facie burden for a retaliation claim. See, e.g., Jones v.
Robinson Prop. Group, L.P., 427 F.3d 987, 995 (5th Cir. 2005); Evans, 246 F.3d
at 354.

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          However, even if Cothran could make a prima facie case of retaliation, her
retaliation claim fails because she has not demonstrated pretext or mixed
motive.      Potter   offered a legitimate, nonretaliatory reason for Cothran’s
negative performance score on the periodic rolls management category:1
Cothran failed to meet individual performance objectives established by her
previous supervisor. Moreover, another employee with an identical performance
requirement, who had not complained of discrimination, received the same score
on the periodic rolls category. Potter has also explained that the temporal
proximity between Cothran’s complaint and her performance review was
coincidental. All performance reviews were originally due on November 24, 2006
but because of various delays, Fuentes did not submit those reviews until
November 29, 2006. Cothran’s bare assertion that Potter’s explanation is false
does not raise a genuine issue of material fact with respect to pretext.
          Potter also provided a legitimate, nonretaliatory reason for the denial of
Cothran’s FMLA leave request: Fuentes denied her leave request because (1)
Cothran was on unauthorized, unscheduled leave-without-pay status at the
time; (2) Cothran failed to submit her request prior to the requested leave
period; and (3) the FMLA coordinator told Fuentes that Cothran was not
eligible for FMLA leave. Cothran alleges, citing only her own affidavit, that the
individual whom Fuentes consulted was not a FMLA coordinator. Cothran has
not disputed that she was in an unauthorized, unscheduled leave-without-pay
status at the time or that she did not submit her request prior to the requested
leave period. Cothran’s self-serving allegation does not create a genuine issue
of material fact as to pretext. Nor has Cothran identified any evidence of mixed



      1
        In 2006, Cothran was evaluated in four categories. On appeal, Cothran alleges
only that her score on the periodic rolls management category was retaliatory.

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motive with respect to either of these adverse employment actions.
      Even assuming (1) that the denial of Cothran’s annual leave requests on
two additional occasions are adverse employment actions and (2) that a causal
connection existed with Cothran’s protected activity—findings that the district
court did not make—Cothran has not demonstrated pretext. On one occasion,
Cothran arrived two hours late to work and subsequently submitted a request
for annual leave for those two hours. Potter avers that Fuentes denied that
request because Fuentes had already rejected Cothran’s request for annual
leave during that period due to Cothran’s heavy workload and backlog and
because Cothran had an extensive history of absences. Although Cothran
contends that Fuentes has granted similar requests by other employees,
Cothran has failed to offer evidence to rebut Potter’s reasons.
      Fuentes also denied Cothran’s request for annual leave from March 26,
2007 through March 30, 2007. Potter states that Fuentes denied that request
because the department had a policy that only two employees could take leave
at the same time and two employees had previously been approved for leave
during that period. Cothran has failed to identify evidence that creates an issue
of material fact as to whether Potter’s legitimate, nonretaliatory explanations
are pretextual. Nor could a reasonable jury logically infer that her complaint of
discrimination was a motivating factor in Fuentes’ denials of annual leave.
Cothran has not carried her burden with respect to pretext or motivation and,
therefore, her retaliation claim fails.
      AFFIRMED.




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