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

                                                                            FILED
                                                                          August 22, 2008

                                     No. 07-20881                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


TRACY COMEAUX-BISOR,

                                                  Plaintiff-Appellant,
v.

YMCA OF GREATER HOUSTON,

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:06-CV-2836


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Tracy Comeaux-Bisor appeals from the district court’s
grant of summary judgment in favor of the Defendant-Appellee YMCA of
Greater Houston (“YMCA”).             Before the district court, Comeaux alleged
violations under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a), and the
Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”). On appeal,
Comeaux contends that the district court erred in its grant of summary


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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judgment because (1) it should have liberally construed her briefs because she
was pro se; (2) she presented sufficient evidence that she suffered from a serious
health condition, and therefore she should have been granted temporary leave
under FMLA; and (3) there existed a genuine issue of material fact on her Title
VII claim. For the following reasons, we affirm the ruling of the district court.
We also consider the YMCA’s motion to strike portions of Comeaux’s reply brief.
That motion is GRANTED.
I.    Factual and Procedural Background
      Comeaux was hired by the Post Oak YMCA in Houston in 2001 and
promoted to Membership Coordinator in 2004. Beginning in February 2005,
Comeaux, who was pregnant at that time, began missing work frequently. After
being contacted by her supervisor regarding her absences, Comeaux requested
twelve weeks of leave under the FMLA, starting on March 7, 2005, and ending
May 30, 2005, citing pregnancy related complications.
      Yolanda Wright, Human Resources Generalist for the YMCA, processed
Comeaux’s request for FMLA leave. She requested that Comeaux have her
doctor complete a Certification of Health Care Provider in order to verify that
the leave was medically necessary. In her affidavit, Wright indicated that she
contacted Comeaux a number of times to explain to her that her request for
leave could not be granted without the medical certification. She also stated
that she sent Comeaux a letter on April 29, 2005, memorializing their
conversations and informing Comeaux that her request for leave would be
denied unless she submitted the certification by May 14, 2005. Comeaux
submitted the medical certification on May 13, 2005. In the certification, Dr. M.
Turrentine stated that Comeaux was able to work but would require medical
leave following child birth and would be unable to work for six weeks
immediately following the birth. Dr. Turrentine noted that the only additional
treatment required for Comeaux’s condition was “routine prenatal care.”


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Additionally, Wright spoke with Dr. Turrentine by phone who reiterated at the
time that Comeaux was capable of working.
      Comeaux provides only a slightly different account of the events during
this time period. According to her, she believed that she had been approved for
medical leave and did not learn until April 29, 2005, that her doctor had not sent
in the medical certification form. She also contends that she provided the YMCA
with the medical certification in the form of a written statement from her doctor
on May 3, 2005, and then additional certification on the form provided by the
YMCA on May 13, 2005. She does not contest that the May 13, 2005, medical
certification form indicated that she was able to work at that time, and up until
the time of childbirth. A June 8, 2008 letter terminated Comeaux and stated
that she was ineligible for FMLA leave.
II.   FMLA Claim
      Comeaux contends that she presented sufficient evidence that she suffered
from a serious health condition, and, therefore should have been granted
temporary leave under FMLA. The YMCA responds that Comeaux failed to
establish a prima facie case for discrimination or retaliation under FMLA
because she cannot show that she is protected under FMLA.
      We review the district court’s grant of summary judgment de novo
applying the same rules as the district court. See Hansen v. Cont’l Ins. Co., 940
F.2d 971, 975 (5th Cir. 1991). Summary judgment is only appropriate when
there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. See Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (“Rule 56(c) mandates the entry of summary judgment . . . against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the
burden of proof at trial.”).

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      Pursuant to the FMLA, “an eligible employee shall be entitled to a total
of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious
health condition that makes the employee unable to perform the functions of the
position of such employee.” 29 U.S.C. § 2612(a)(1)(D). The FMLA protects
employees from interference with their leave, as well as discrimination or
retaliation for exercising their rights. 29 U.S.C. §§ 2615(a)(1)-(2). To establish
a prima facie case for discrimination or retaliation under the FMLA, a plaintiff
must demonstrate that she is protected under the FMLA; she suffered an
adverse employment decision; and that she was treated less favorably than an
employee who had not requested leave under the FMLA or that the adverse
decision was made because of her request for leave. Bocalbos v. Nat’l Western
Life Ins. Co., 162 F.3d 379, 384 (5th Cir. 1998). If the plaintiff succeeds in
establishing a prima facie case, the burden shifts to the employer to provide a
legitimate nondiscriminatory or non-retaliatory reason for the termination. Id.
If the employer articulates such a reason, the plaintiff must show by a
preponderance of the evidence that the employer’s reason is a pretext for
discrimination or retaliation. Id.
       The district court concluded that Comeaux failed to establish a prima
facie case because she could not establish that she was entitled to protection
under the FMLA. We agree. Even accepting Comeaux’s version of events as
true, Comeaux never provided the YMCA with medical evidence indicating that
she was medically unable to perform her employment duties as required under
FMLA. See 29 U.S.C. § 2613(a) (“An employer may require that a request for
leave . . . be supported by a certification issued by a health provider . . . ”); see
also Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 975 (5th Cir. 1998) (“In
determining whether an employee’s leave request qualifies for FMLA protection,
the employer must assess whether the request is based on a serious health
condition,   and,   for   that   purpose,    may   request    supporting    medical

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documentation.” (citations and internal quotations omitted)). As noted above,
the medical certification completed by Dr. Turrentine indicated that Comeaux
was able to work and would require only routine prenatal care until childbirth.
Comeaux did not submit to the YMCA or offer into evidence in the district court
any medical documentation contradicting Dr. Turrentine’s certification. Because
Comeaux failed to submit the requisite certification establishing she suffered
from a “serious health condition,” she cannot prevail on her claim under the
FMLA.1
II.    Title VII claim
       Comeaux also contends that she established a genuine issue of material
fact on her Title VII claim.
       Title VII prohibits an employer from making an adverse employment
decision that is motivated in part by discrimination on the basis of sex, race,
color, religion, or national origin. 42 U.S.C. § 2000e-2(a)(1); Richardson v.
Monitronics Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005). Where there is no
direct evidence of discrimination, a plaintiff may prove a case of sex
discrimination with circumstantial evidence, using the burden shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). Under the McDonnell Douglas framework, the initial burden of
establishing a prima facie case of race discrimination lies with the plaintiff. To
do so, she must show that (1) she belongs to a protected class; (2) she was
qualified for the position she held; (3) she suffered an adverse employment
action; and (4) she was replaced by an individual outside the protected class.
DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007). If the plaintiff establishes



       1
        The district court also aptly notes that Comeaux failed to offer any evidence to rebut
the YMCA’s non-discriminatory reason for terminating her employment: Comeaux’s refusal to
return to work even after exhausting the 12-week maximum leave requirement under the
FMLA.

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a prima facie case, then the burden shifts to the employer to show a legitimate,
non-discriminatory reason for its actions. Id. If the employer offers such a
reason, then the burden shifts back to the plaintiff to show that the justification
is merely pretext for discrimination. Id.
      Here, Comeaux’s prima facie case fails on the second prong. This court has
previously held that attendance is an essential job function without which one
cannot be considered qualified to perform most jobs. See Hypes v. First
Commerce Corp., 134 F.3d 721, 727 (5th Cir. 1998). It is undisputed that
Comeaux did not report to work during the period covering March 7, 2005
through May 30, 2005. It is also undisputed that she refused to return to work
after May 30, 2005.        Comeaux’s failure to report to work rendered her
unqualified for her position, and accordingly unable to meet her initial burden
of establishing a prima facie case of discrimination under Title VII.
      Moreover, even assuming that Comeaux established a prima facie case,
she has nevertheless failed to rebut the YMCA’s legitimate non-discriminatory
reason for her termination. Again, the YMCA contends that Comeaux was
terminated because of her failure to report to work even after May 30, 2005.
Comeaux offered the following in support of race discrimination: (1) the branch
executive, Kevin Fiorillo, commented that her appearance was unsatisfactory
and that her face should not be the first face people see when they enter the
YMCA;2 and (2) Fiorillo stated that although there were no issues with her job
performance, he “didn’t feel like [the YMCA] was the place [Comeaux] should
be,” “he didn’t feel like [Comeaux] wanted her job,” and that “[I]f [Comeaux]
decided to resign, then I think that would be best for all of us.” However,
Comeaux produced no evidence showing that Fiorillo was responsible for or in
any way influenced the decision to terminate her. See Reeves v. Sanderson

      2
          Notably, Comeaux was unsure whether this comment referred to her race or her
weight.

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Plumbing Products, Inc., 530 U.S. 133, 141 (2000) (plaintiff must show that
protected trait was a motivating factor for employer’s decision). Accordingly, she
has not established that the YMCA’s stated justification for her termination was
pretext for discrimination.
III.   Comeaux’s Pro Se Status
       Comeaux argues that considering her pro se status, the district court erred
by not informing her that her pleadings were defective and allowing her to cure
them. It is well established that allegations in a pro se complaint are generally
held “to less stringent standards than formal pleadings drafted by lawyers.”
Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, Comeaux’s argument
rests on the inaccurate premise that her claim was dismissed simply because it
was inartfully pled, i.e., she failed to specifically explain and identify which
documents she was relying on to support her claims. To the contrary, the YMCA
was granted summary judgment because Comeaux failed to establish a prima
facie case under FMLA and Title VII. Further, as discussed above, under both
FMLA and Title VII, Comeaux has failed to rebut the YMCA’s legitimate, non-
discriminatory reason for her termination: her unexcused absences. Thus, under
the facts of this case, there is no circumstance in which Comeaux could prevail
on either of her claims. Accordingly, we find no error with regard to the district
court’s treatment of Comeaux based on her pro se status.
IV.    Motion to Strike
       The YMCA’s motion to strike portions of Comeaux’s reply brief, specifically
Exhibit I containing pages 27 and 39 of her deposition, is granted. Neither
Comeaux or the YMCA presented this evidence to the district court, and this
court may not consider it for the first time on appeal. See Theriot v. Parish of
Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not
consider new evidence furnished for the first time on appeal and may not



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consider facts which were not before the district court at the time of the
challenged ruling.” (citation omitted)).
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of the YMCA. The YMCA’s motion to strike is
GRANTED.




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