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

                                                 FILED
                                                                         November 4, 2009

                                     No. 09-10049                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



DRENDA K. BURRIS


                                                   Plaintiff - Appellant

v.

GERALD W BRAZELL; DOMINGO R. MONTALVO; MITCH SRAIL;
KAPLAN HIGHER EDUCATION CORPORATION


                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 3:06-cv-00814-K


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Drenda Burris (“Burris”) filed suit against defendants-
appellees Kaplan Higher Education Corporation (“Kaplan”), Gerald Brazell
(“Brazell”), Domingo Montalvo (“Montalvo”), and Mitch Srail (“Srail”), alleging

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 09-10049

violations of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.
(“FMLA”), and various state law claims. The district court denied her motion to
compel production and granted defendants’ motion for summary judgment. We
AFFIRM.
                              I. BACKGROUND
      Burris was hired in January 2003 as director of career services for the
Southeastern Career Institute (“SCI”) in Dallas, Texas. Kaplan owns SCI;
Brazell was SCI’s executive director and Burris’s supervisor prior to her
termination.
      In February 2003, Burris stumbled in the break room at work and injured
her back. By October 2003, her worsening back condition required surgery for
which she was out of the office for a few days. Burris returned to work and, as
her condition deteriorated, she required the use of a cane to walk.
      The parties dispute the facts related to Kaplan’s and Brazell’s reaction to
her condition. Burris alleges that she spoke to Brazell on May 6, 2004, to inform
him that her doctor suggested that she take a medical leave. Brazell alleges that
he had no such conversation with Burris.
      On May 7, 2004, Burris’s assistant, Carrie Owens (“Owens”) notified
Brazell that Burris engaged in inappropriate conduct with students and staff at
SCI. Specifically, Burris actively encouraged SCI students and staff to file
complaints against Brazell; blamed student-reported problems on Brazell; and
hosted meetings with students in her home and told them that they could
recover their tuition money because of Brazell’s management deficiencies. That
day, Srail, Human Resources Director, and Montalvo, Texas Regional Director
of Operations, interviewed several employees, who corroborated the substance
of the allegations. On May 10, 2004, Srail informed Burris that her employment
was terminated due to her inappropriate conduct.



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       Burris filed suit against Kaplan, Brazell, Montalvo, and Srail, alleging
interference with her rights and retaliation under the FMLA and various state
law claims. After the parties exchanged discovery responses, on June 15, 2007,
defendants filed a motion to dismiss pursuant to Federal Rules of Civil
Procedure (“Rule”) 12(c) and 56. On October 10, 2007, Burris filed a cross-
motion to compel production and to amend her complaint, alleging that
defendants failed to produce e-mails related to her termination. On December
10, 2007, the district court denied defendants’ motion without prejudice pending
resolution of the discovery dispute, granted Burris’s motion to amend, and
permitted Burris to file her amended complaint within ten days of the order.
Burris did not file an amended complaint. After referral to the magistrate judge
for a hearing, the cross-motion to compel production was denied. The parties
subsequently agreed to a discovery deadline of July 31, 2008.
       After the parties failed to settle their claims, defendants filed an amended
motion to dismiss pursuant to Rules 12(c) and 56 on August 1, 2008. On August
25, 2008, Burris filed a second cross-motion to amend, to compel production and
to sever consolidated representation.1 The district court denied Burris’s second
motion and granted defendants’ amended motion.                     Burris timely filed this
appeal.
                                     II. DISCUSSION
       On appeal, Burris raises two arguments: (1) the district court erred by
denying her two cross-motions to compel discovery, and (2) the district court
erred by granting summary judgment to Kaplan on her FMLA claim.2


       1
        Although Burris’s second motion was styled as a “cross-motion to amend,” her brief
in support of the motion did not request this relief.
       2
        Burris does not contest the district court’s grant of summary judgment regarding her
FMLA claims against Brazell, Montalvo, and Srail, or her state law claims against any of the
defendants. Accordingly, we consider these claims waived. See Longoria v. Dretke, 507 F.3d
898, 901 (5th Cir. 2007) (“Although we liberally construe pro se briefs, such litigants must still

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       A.     Motions to Compel Production
       We review a district court’s order denying a motion to compel production
for abuse of discretion. Burns v. Exxon Corp., 158 F.3d 336, 342 (5th Cir. 1998).
We will affirm such discovery rulings unless they are arbitrary or clearly
unreasonable. Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir.
2000).
       We find no abuse of discretion in denying either motion to compel. As to
the first motion to compel, the magistrate judge held a hearing in which Burris
and counsel for defendants presented evidence and arguments. In light of this
evidence, the magistrate denied the motion. Moreover, the magistrate permitted
Burris to re-file her motion if her discovery showed, as Burris argued, that
Kaplan’s backup system contained undisclosed e-mails. This ruling, therefore,
cannot be characterized as arbitrary or clearly unreasonable. Moore, 233 F.3d
at 876. As to the second motion to compel, the district court correctly noted that
it was both procedurally and substantively defective. The second motion was
filed on August 25, 2008, nearly one month after the close of discovery, and
asserted the same arguments rejected in Burris’s first motion to compel, yet
provided no further evidence that additional, non-produced documents existed.
Accordingly, the denial of the motions was not arbitrary or clearly unreasonable.
Id.
       B.     Motion on the Pleadings and Motion for Summary Judgment
       We review a grant of judgment on the pleadings under Rule 12(c) de novo.
See Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001). We also
review a district court’s grant of summary judgment de novo, using the same
standard as that applied by the district court. Harvill v. Westward Commc’ns,




brief contentions in order to preserve them.”) (citations omitted).

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L.L.C., 433 F.3d 428, 433 (5th Cir. 2005). We also construe a pro se litigant’s
briefs liberally. See Windland v. Quarterman, 578 F.3d 314, 316 (5th Cir. 2009).
      Construing Burris’s pleadings liberally, we discern two distinct claims
under the FMLA: interference with FMLA rights and retaliation. To make a
prima facie case for interference with FMLA rights, Burris must first
demonstrate that she took leave that was protected under the FMLA. See, e.g.,
Mauder v. Metro. Transit Auth. of Harris County, Tex., 446 F.3d 574, 580 (5th
Cir. 2006). Retaliation claims under the FMLA are analyzed using the
McDonnell Douglas burden-shifting framework. See Hunt v. Rapides Healthcare
Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001).
      Even though we construe Burris’s pleadings liberally, Burris cannot make
a prima facie showing for either claim. As the district court noted, Burris
produced no evidence that anyone involved in her termination was aware of her
request for leave. Burris has not shown that Brazell made the decision to
terminate her. Assuming that Burris could make a prima facie showing on her
retaliation claim, she offers no evidence to rebut Kaplan’s legitimate, non-
discriminatory reason for her termination—namely, her unprofessional conduct
towards Brazell and SCI students. Accordingly, Burris failed to plead enough
facts to state a claim to relief or to create a genuine issue of material fact.
                               III. CONCLUSION
      For the foregoing reasons, we AFFIRM the denial of Burris’s motion to
compel and the grant of defendants’ motion.




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