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

                                                  FILED
                                                                             April 8, 2009

                                       No. 08-40709                    Charles R. Fulbruge III
                                     Summary Calendar                          Clerk



TINA POWERS,

                                                   Plaintiff–Appellant,
v.

WOODLANDS RELIGIOUS COMMUNITY INC., doing business as
Interfaith of the Woodlands,

                                                   Defendant–Appellee.




                     Appeal from the United States District Court
                          for the Southern District of Texas
                                USDC No. 3:08-CV-11


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Tina Powers appeals the district court’s grant of summary judgment to
Woodland Religious Community Inc., d/b/a Interfaith of the Woodlands
(Interfaith) denying Powers’s claims under the Family Medical Leave Act1




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
           29 U.S.C. §§ 2601-2654.
                                       No. 08-40709

(FMLA) and the Age Discrimination in Employment Act 2 (ADEA). We affirm in
part, vacate in part, and remand for further proceedings.
                                               I
      In January 2001, Interfaith hired Powers.                Powers’s attendance was
acceptable from 2001 to 2005. Between August 2005 and January 11, 2006,
Powers was absent from work for thirty-five-and-one-half days on non-FMLA
leave. Powers was absent for an additional eighty-five days for leave taken
under the FMLA between January 12, 2006, and April 7, 2006. After a four-day
absence in May 2006, Interfaith terminated Powers for absenteeism. Powers’s
position was absorbed by three individuals who were forty-six, forty-nine, and
fifty-two years of age at the time of Powers’s termination. Powers was forty-
nine-years old when she was fired.
      Powers sued, alleging that Interfaith retaliated against her because she
exercised her rights under the FMLA.               Powers also alleged that Interfaith
discriminated against her because of her race and gender in violation of Title
VII, because of her age in violation of the ADEA, and because of her alleged
disability in violation of the Americans with Disabilities Act (ADA). Powers
voluntarily dismissed her claims under Title VII and the ADA. The district
court granted summary judgment in favor of Interfaith on Powers’s claims under
the ADEA and FMLA. Powers timely appealed.
                                              II
      We review the district court’s grant of summary judgment de novo.3
Summary judgment is appropriate 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


      2
          29 U.S.C.A. §§ 621-634.
      3
          James v. Tex. Collin County, 535 F.3d 365, 373 (5th Cir. 2008).

                                              2
                                        No. 08-40709

law.” 4 Any reasonable inferences are to be drawn in favor of the non-moving
party.5 “However, a party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’” 6 “Rule
56(e) . . . requires the nonmoving party to go beyond the pleadings and 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.’” 7
Because Powers produced only circumstantial evidence of discrimination, the
burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green 8 guides
our inquiry.9
                                               A
      To make a prima facie case for retaliation under the FMLA, a plaintiff
must show that: (1) she was protected under the FMLA; (2) she suffered an
adverse employment decision; and either (3a) she was treated less favorably
than an employee who had not requested leave under the FMLA, or (3b) the
adverse decision was made because she took FMLA leave.10 “[T]he plaintiff does
not have to show that the protected activity is the only cause of her




      4
       F   ED .   R. CIV . P. 56(c).
      5
           Robinson v. Orient Marine Co. Ltd., 505 F.3d 364, 366 (5th Cir. 2007).
      6
        Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th
Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
      7
          Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
      8
          411 U.S. 792, 802 (1973).
      9
        See Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 372 (5th Cir.
2008) (applying the McDonnell Douglas rubric to FMLA claims); Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 222 n.3 (5th Cir. 2000) (applying the McDonnell Douglas rubric to
ADEA claims).
      10
           Elsensohn, 530 F.3d at 372 (citations omitted).

                                               3
                                        No. 08-40709

termination.”11 Instead, the plaintiff need only show that “the protected activity
and the adverse employment action are not completely unrelated.”12
       Powers has provided sufficient evidence to establish a prima facie case of
discrimination under the FMLA. It is undisputed that Powers was authorized
to take FMLA leave and was fired approximately one month after her return.13
Additionally, Powers has provided unrebutted evidence that Interfaith
characterized her FMLA leave as part of “Tina’s absences.” Because Interfaith
claims that it terminated Powers due to excessive absenteeism, Interfaith’s
characterization of her FMLA leave provides a causal link between Powers’s
FMLA leave and her termination.
       Because Powers has provided sufficient evidence to establish a prima facie
case, the burden of production shifts to Interfaith to proffer a legitimate
nondiscriminatory reason for its decision.14              Interfaith’s stated reason for
Powers’s termination—absenteeism—is a legitimate nondiscriminatory reason
for its decision. Interfaith’s employee manual states that excessive absenteeism
will result in disciplinary action up to and including immediate termination.
Powers missed thirty-five-and-one-half days for non-FMLA leave over a span of
six months and another four days in the month following her FMLA leave.
       Because Interfaith has stated a nondiscriminatory reason for its decision,
Powers must show by a preponderance of the evidence that Interfaith’s reason



       11
            Mauder v. Metro. Transit Auth., 446 F.3d 574, 583 (5th Cir. 2006).
       12
            Id.
       13
           See id. (“When evaluating whether the adverse employment action was causally
related to the FMLA protection, the court shall consider the ‘temporal proximity’ between the
FMLA leave, and the termination.”).
       14
        See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Hunt v. Rapides
Healthcare Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001) (applying the McDonnell-Douglas
framework to claims of retaliatory discharge under the FMLA).

                                               4
                                        No. 08-40709

is a pretext for retaliation.15        The record shows that Interfaith terminated
Powers one month after she returned from FMLA leave. The final event leading
to her termination was a single absence of four consecutive days due to a severe
spider bite.      Powers has provided evidence that her immediate supervisor
approved this final absence. Further, Powers provides evidence that Interfaith
utilized its progressive disciplinary program with other employees but did not
use this program in Powers’s case. Unlike in Mauder v. Metropolitan Transit
Authority, in which the employer had already instituted disciplinary measures
for excessive tardiness before the plaintiff took FMLA leave,16 Interfaith admits
that it did not reprimand Powers for taking leave for which she was not eligible
between August 2005 and January 11, 2006. Examining the evidence presented
in the light most favorable to Powers, we conclude that a genuine issue of
material fact exists as to whether Interfaith’s purported reason was what
actually motivated it to terminate Powers.17 Therefore, we vacate the district
court’s grant of summary judgment on Powers’s FMLA claim.
                                               B
       Powers also contends that the district court erred in granting summary
judgment on her ADEA claim. “To make out a prima facie case of discriminatory
treatment based on age, the plaintiffs are required to prove: (1) they are within
the protected class; (2) they are qualified for the position; (3) they suffered an
adverse employment decision; and (4) they were replaced by someone younger

       15
            Hunt, 277 F.3d at 768.
       16
          446 F.3d at 583 (affirming the district court’s conclusion that the plaintiff failed to
make the requisite showing that the employer’s stated reason for discharging him was mere
pretext for retaliation).
       17
          See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (“[A] plaintiff can
avoid summary judgment and judgment as a matter of law if the evidence taken as a whole
(1) creates a fact issue as to whether each of the employer’s stated reasons was what actually
motivated the employer . . . .”), overruled on other grounds by Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000).

                                               5
                                          No. 08-40709

or treated less favorably than similarly situated younger employees (i.e., suffered
from disparate treatment because of membership in the protected class).” 18 The
parties agree that Powers satisfies the first three elements to establish a prima
facie case. However, Powers fails to satisfy the fourth element.
        Powers was not replaced by someone outside of the protected class.
Instead, Powers’s position was absorbed by three individuals who were over forty
years of age. 19 Thus, we need only determine whether Powers was treated less
favorably than similarly situated younger employees.
        In her initial disclosures, Powers claims that twelve people were treated
better than her. Of these twelve, seven are forty-years old or older. Therefore,
by Powers’s own account, Interfaith treated both younger and older employees
better than her. Powers also claims that Interfaith failed to follow the normal
disciplinary procedures before terminating her because Interfaith did not use its
progressive discipline policy, Employee Assistance Program, or Corrective Action
Plan.        Yet, Powers does not assert that these procedures were utilized for
younger workers but not for older ones. 20
        Further, the evidence fails to show that any of the people Powers listed as
being treated better than her were similarly situated.21                     In her “List of
Employees Treated Better,” Powers does not provide the ages of any of the


        18
             Smith v. City of Jackson, 351 F.3d 183, 196 (5th Cir. 2003).
        19
         See 29 U.S.C. § 631(a) (stating that the protections in the ADEA are limited to
individuals who are at least forty years of age).
        20
          See Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 305 (5th Cir. 2000) (“There was
no evidence, for example, that United Companies . . . complied with standard disciplinary
procedures when filing reports on younger workers but flouted them when it came to [the
plaintiffs].”).
        21
         See Berquist v. Wash. Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007) (“In disparate
treatment cases, the plaintiff-employee must show ‘nearly identical’ circumstances for
employees to be considered similarly situated.” (quoting Perez v. Tex. Dep’t of Criminal Justice,
395 F.3d 206, 210 (5th Cir. 2004))).

                                                 6
                                       No. 08-40709

persons listed; instead, she describes several of the persons as being
“substantially younger.” Powers also fails to detail the number of absences for
each employee or the time period in which these absences occurred, except in one
case in which she states that the person was absent for a single period of more
than thirty days after having a miscarriage. Additionally, Powers described the
positions of only three employees. Of the two employees with a similar position
as pre-employment screeners, Powers does not allege that these employees
missed work; she complains only that they worked from home. Also, six of the
listed employees left Interfaith of their own volition and only two employees
were terminated for unlisted reasons. Finally, Powers does not detail the tenure
of the employees except in one circumstance not similar to Powers.                      Such
anecdotal evidence does not place any of these current and former employees in
a similar situation as Powers.22
       Because Powers fails to present evidence that creates a genuine issue of
material fact as to whether she proved that she was replaced by someone
younger or treated less favorably than similarly situated younger employees,
Powers’s ADEA claim fails.23




       22
          See Wyvill, 212 F.3d at 302-03 (“This court and others have held that testimony from
former employees who had different supervisors than the plaintiff, who worked in different
parts of the employer’s company, or whose terminations were removed in time from the
plaintiff’s termination cannot be probative of whether age was a determinative factor in the
plaintiff’s discharge.”).
       23
          See Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 641 n.9 (5th Cir.
1985) (“In the employment discrimination context, a prima facie case is established if the
plaintiff merely satisfies the standing requirements of the ADEA and presents evidence of
differential treatment of younger and older employees. Given these minimal requirements,
the failure to establish a prima facie case generally means that there are no material facts at
issue.”), overruled on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 513
(1993).

                                              7
                               No. 08-40709

                           *        *         *
     We AFFIRM in part, VACATE in part, and REMAND for further
proceedings.




                                    8
