     Case: 13-20543      Document: 00512761274         Page: 1    Date Filed: 09/09/2014




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

                                      No. 13-20543                                FILED
                                                                          September 9, 2014
                                                                             Lyle W. Cayce
MICHELLE LYONS,                                                                   Clerk

                                                  Plaintiff-Appellant,
v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-1680


Before DAVIS, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Michelle Lyons appeals the district court’s grant of
summary judgment in this employment discrimination suit. We reverse.
                                             I.
       Lyons is a former employee of the Texas Department of Criminal Justice
(“TDCJ”). In 2001, Lyons began working at TDCJ as a public information
officer (“PIO”).    At this time, Lyons’ immediate supervisor at the Public
Information Office was Larry Fitzgerald. Fitzgerald retired in 2003. In 2006,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-20543
Lyons was herself appointed as TDCJ’s Director of the Public Information
Office (“PI Director”). Her responsibilities included supervising PIO Jason
Clark and an office secretary, Rebecca Blanton.
      In 2011, Blanton informed TDCJ’s deputy executive director, Bryan
Collier, of irregularities in Lyons’ timekeeping. Collier then assigned Thomas
Prasifka to investigate Blanton’s allegations.          The focus of Prasifka’s
investigation was whether Lyons had reported working full 8-hour days when
she had not actually been in the office or at an approved off-site location as
required by TDCJ regulations.       Prasifka found evidence that Lyons had
committed multiple timekeeping violations and reported his findings to Collier.
      Collier concluded that Lyons’ violations were serious enough to justify
termination under TDCJ policy. Rather than terminating Lyons’ employment,
however, Collier consolidated Lyons’ multiple timekeeping violations into a
single violation and demoted Lyons from PI Director to PIO. At this time,
Lyons reported to Collier that Clark had used the same timekeeping practices
that she had. Based on Lyons’ allegations, Prasifka then investigated Clark’s
timesheets as well. Prasifka’s second investigation apparently did not yield
sufficient evidence, however, to justify Clark’s termination or demotion.
      Lyons filed this action in district court in 2012. Lyons advanced gender
discrimination claims under Title VII of the Civil Rights Act of 1964, as codified
at 42 U.S.C. § 2000e-2(a)(1). Specifically, Lyons claimed that Clark, a male
employee, committed the same timekeeping violations as Lyons but was not
subjected to any adverse employment action. Thus, Lyons submits that she
was treated less favorably than a similarly situated male employee resulting
in a violation of Lyons’ rights under Title VII.
      TDCJ moved for summary judgment, arguing that Lyons’ demotion had
a legitimate, non-discriminatory justification—Lyons’ failure to consistently


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                                     No. 13-20543
maintain accurate timesheets. The district court granted summary judgment
in favor of TDCJ. Lyons appeals.
                                            II.
      We review a district court’s grant of summary judgment under Rule 56(a)
de novo, applying the same standards as the district court. 1 The court must
view the evidence in the light most favorable to the non-movant and may not
weigh evidence or make credibility determinations. 2                When analyzing a
discrimination claim based on circumstantial evidence, we apply the
McDonnell Douglas burden-shifting framework. 3
                                           III.
      The affidavit of Lyons’ former supervisor, Larry Fitzgerald, supports a
jury finding that PIOs were not required to follow TDCJ’s written timekeeping
policy. Fitzgerald stated:
      As Ms. Lyons’ supervisor, I instructed her on how to keep her time.
      I explained to Ms. Lyons that since she was an exempt employee
      she was not eligible for overtime. Therefore, it was not necessary
      for her to track her hours to the minute on a day-to-day basis.

      I also explained to her since she was an exempt employee it was
      not necessary for her to work a set shift. Instead, if she had an
      errand she needed to run, or needed to leave the office prior to 5:00
      p.m. when the PIO office closed, that she could do so without any
      adverse action. Simply put, this is because the PIO officers,
      including me and Ms. Lyons, worked many hours each week
      outside of work at our homes and during what would otherwise be
      “personal time” since we received media inquires [sic] day and
      night, seven days a week.




      1  Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013).
      2  Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000); Tiblier v.
Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014).
       3 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Lee v. Kansas City

S. Ry. Co., 574 F.3d 253, 259 & n.11 (5th Cir. 2009).
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                                      No. 13-20543
       Therefore, I informed Ms. Lyons that the TDCJ requires that she
       work a minimum of 40 hours per week, and that as long as she was
       working at least that much, that it did not matter whether she was
       in the office from to 8:00 to 5:00 daily. Rather, I explained since
       she was responsible for insuring that she timely and appropriately
       answered all media inquiries, that as long as she worked 40 hours
       per week, she could fill out her timesheets by marking 8 hours in
       the office per day.

       Fitzgerald’s affidavit was not mentioned by either the district court or
TDCJ in its brief to this court.
       A reasonable jury could conclude from Fitzgerald’s explanation, together
with the summary judgment evidence that Lyons’ co-worker, Clark, also did
not strictly follow TDCJ’s timesheet policy as written, that TDCJ’s timesheet
policy recognized a de facto exception for PIOs. If the de facto exception was
selectively ignored in Lyons’ case, a reasonable jury could also conclude that
Lyons’ violation of TDCJ’s timesheet policy was a pretext for her demotion. An
employer’s selective application of a facially neutral policy is evidence of
pretext, as many courts have concluded. 4 As we also suggested in E.E.O.C. v.
Louisiana Office of Community Services, 47 F.3d 1438, 1445-46 (5th Cir. 1995),
an inference of pretext may be drawn based on evidence that an employer’s
relevant rules and standards “were not consistently applied.” 5
       Accordingly, because triable issues of fact remain as to whether Lyons’
violation of the timesheet policy was the actual reason for her demotion or a
pretext, TDCJ was not entitled to summary judgment. We therefore vacate



       4 Baker v. Macon Res., Inc., 750 F.3d 674, 677-78 (7th Cir. 2014); Alexander v. Local
496, Laborers’ Int’l Union of N. Am., 177 F.3d 394, 405 (6th Cir. 1999); Spulak v. K Mart
Corp., 894 F.2d 1150, 1155 (10th Cir. 1990); E.E.O.C. v. Air Liquide USA LLC, 692 F. Supp.
2d 658, 678 (S.D. Tex. 2010); Vickers v. Int’l Baking Co., CIV. A. 398CV1864D, 2000 WL
1804612, at *4 (N.D. Tex. Dec. 7, 2000).
       5 See also Jenkins v. Ball Corp., 140 F. App’x 519, 526 (5th Cir. 2005) (citation

omitted).
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                               No. 13-20543
the district court’s order and remand for further proceedings consistent with
this opinion.
      REVERSED and REMANDED.




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