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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                  No. 15-60190                             FILED
                                                                     March 18, 2016

AMBREA FAIRCHILD,                                                     Lyle W. Cayce
                                                                           Clerk
             Plaintiff–Appellant,

v.

ALL AMERICAN CHECK CASHING, INCORPORATED, a Mississippi
Corporation,

             Defendant–Appellee.




                 Appeal from the United States District Court
                   for the Southern District of Mississippi


                      ON PETITION FOR REHEARING
Before PRADO, OWEN, and HAYNES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Treating Appellant’s Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition for Panel Rehearing is DENIED, but we
withdraw the prior opinion, 811 F.3d 776 (5th Cir. 2016), and substitute the
following, which is amended only as to Part II.A:
      Ambrea Fairchild sued her former employer, All American Check
Cashing, Inc. (“All American”), alleging it violated Title VII of the Civil Rights
Act of 1964 (“Title VII”), as amended by the Pregnancy Discrimination Act
(“PDA”), 42 U.S.C. § 2000e(k), by firing her because she was pregnant. She also
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alleged that All American violated the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 207(a), by failing to pay her overtime. After the close of Fairchild’s
case in chief at trial, the district court entered judgment in favor of All
American on both claims. Finding no error, we affirm.
                              I. BACKGROUND
      In December 2011, Ambrea Fairchild was hired by All American, a
Mississippi-based loan and check cashing company. After a brief training
period, Fairchild started work as a manager trainee at All American’s store in
Hattiesburg, Mississippi. She was paid hourly, and her responsibilities
included cashing checks, issuing loans, and making reminder and “past due”
phone calls to assist with debt collection.
      All American promoted Fairchild in March 2012 to manager, a salaried
position. Her duties largely stayed the same, although she also became
responsible for training other employees. During her time as manager, All
American issued her several written complaints regarding her performance. In
May 2012, she received a write up after a register drawer was missing one
hundred dollars. In July 2012, she received a citation for failing to follow
instructions after she kept the store open past All American’s prescribed
closing time. The next month she received a written warning related to her
“general inefficiency.” She received three more warnings in the first half of
September 2012. One warning cited her failure to train manager trainees and
another indicated she needed to “slow down and pay attention” when
processing transactions. All American also issued a “final warning” for “general
inefficiency,” which related to the accrual of “bad debt” at the store and her
failure to issue a sufficient number of loans.
      In late September 2012, All American demoted Fairchild back to the
manager trainee position. Fairchild testified at trial that the demotion was
justified because she needed “to work on [her] weaknesses.” Her manager
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became Daniel Fowler, an individual that Fairchild had previously trained.
While acting as her manager, Fowler issued Fairchild performance-related
warnings, which included a December 2012 document informing Fairchild that
All American had “zero tolerance” for “threatening phone calls” and “poor
attitudes.” Fowler also testified that Fairchild caused low morale at the
Hattiesburg store. The issue with store morale led to problems with customer
service that, in turn, resulted in excessive customer complaints. Fowler and
Fairchild also had a strained working relationship in part because Fairchild
often complained about him to their supervisors. As Fairchild admitted in her
testimony, the two would frequently argue over “minor things,” and she would
report Fowler’s actions to her then-supervisors. As a result of these issues,
Fowler informed his new supervisor, Mark Hendrix, that Fairchild was
interfering with his ability to effectively manage the Hattiesburg store.
      In October 2012, Fairchild learned she was pregnant. She told her then-
supervisor, Mandy Hearn, and her manager, Fowler, of her pregnancy in late
November 2012. On January 23, 2013, All American terminated Fairchild. Two
days earlier, Mark Hendrix, who held another position in All American,
became acting supervisor of the Hattiesburg store.
      All American’s overtime policy prohibited hourly employees from
working overtime without prior approval from a manager or supervisor.
Further, its policy required that all employees accurately report their hours in
its designated timekeeping system. During Fairchild’s time as manager
trainee, All American paid her for the overtime that it authorized and that she
recorded in its timekeeping system. Fairchild, however, testified that she also
worked additional overtime that she did not report through the specified
timekeeping system and for which she was not paid.
      In May 2013, Fairchild sued All American in federal district court. Her
complaint alleged that All American terminated her because of her pregnancy
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in violation of Title VII and failed to pay her overtime wages in violation of the
FLSA. Before trial, the parties agreed that the FLSA claim would be decided
by the judge and the Title VII claim would be decided by a jury, although they
would present both claims at a single trial. The trial took place in February
2015. After the close of Fairchild’s case in chief, the district court granted All
American’s motion for judgment in its favor on both claims. Fairchild timely
appealed.
                                    II. DISCUSSION
A.     The FLSA Claim
       The parties agreed to a bench trial for the FLSA claim. In a bench trial,
a judgment entered after the plaintiff’s case in chief is appropriately decided
under Federal Rule of Civil Procedure 52(c), 1 which provides for a judgment on
partial findings. 2 Bursztajn v. United States, 367 F.3d 485, 488 (5th Cir. 2004).
When the district court enters a Rule 52(c) judgment, we review its factual
findings for clear error and its conclusions of law de novo. Id. at 488–89.


       1  In this case, All American incorrectly moved for a judgment as a matter of law under
Federal Rule of Civil Procedure 50 as to both the FLSA claim, which was presented to the
judge, and the Title VII claim, which was not. The district court proceeded to analyze both
claims under Rule 50’s standard, which requires considering the evidence in the light most
favorable to Fairchild. See Fed. R. Civ. P. 50(a); Bank of Saipan v. CNG Fin. Corp., 380 F.3d
836, 840 (5th Cir. 2004). However, Rule 50’s standard does not apply to bench trials and, as
such, Rule 52(c) was the proper vehicle for rendering judgment as to the FLSA claim. See
Thanedar v. Time Warner, Inc., 352 F. App’x 891, 897 n.1 (5th Cir. 2009) (per curiam). We
nonetheless conclude that a remand is unnecessary. The error did not prejudice Fairchild
insofar as Rule 50’s standard favored her. See id. Rule 52(c), unlike Rule 50, does not require
the district court “to draw any inferences in favor of the non-moving party” and permits the
court to make a determination “in accordance with its own view of the evidence.” Ritchie v.
United States, 451 F.3d 1019, 1023 (9th Cir. 2006); see Fed. R. Civ. P 52(c). In addition, “the
purposes behind [Rule 52] have been effectuated” here: the district court’s ruling, which
canvassed the evidence adduced at trial, (1) “engender[ed] care on the part of the trial judge
in ascertaining the facts” and (2) “[made] possible meaningful review in the appellate courts.”
Gupta v. E. Tex. State Univ., 654 F.2d 411, 415 (5th Cir. 1981).
        2 Prior to 2007, a judgment under Rule 52(c) was referred to as a “judgment as a matter

of law.” See Fed. R. Civ. P. 52(c) advisory committee’s note to 2007 amendment. However, in
2007, Rule 52(c) was amended to “refer[] only to ‘judgment,’ to avoid any confusion with a
Rule 50 judgment as a matter of law in a jury case.” Id.
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      Under the FLSA, an employer must pay covered employees overtime
compensation that is “not less than one and one-half times [that employee’s]
regular rate” for all hours worked over forty in a workweek. 29 U.S.C.
§ 207(a)(1). “An employer who is armed with [knowledge that an employee is
working overtime] cannot stand idly by and allow an employee to perform
overtime work without proper compensation, even if the employee does not
make a claim for the overtime compensation.” Harvill v. Westward Commc’ns,
L.L.C., 433 F.3d 428, 441 (5th Cir. 2005) (alteration in original) (quoting
Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir. 1995)). An employee,
however, cannot prevail on an FLSA overtime claim if that “employee fails to
notify the employer or deliberately prevents the employer from acquiring
knowledge of the overtime work.” Id. (quoting Newton, 47 F.3d at 748); see also
Brumbelow v. Quality Mills, Inc., 462 F.2d 1324, 1327 (5th Cir. 1972).
      In Newton v. City of Henderson, the plaintiff, a police officer, brought an
FLSA claim for overtime against his employer, the City of Henderson (the
“City”). 47 F.3d at 747. During the period at issue, the plaintiff was assigned
to work for a task force with the U.S. Drug Enforcement Agency, although the
City remained responsible for his salary. Id. The City’s personnel policy
required that all employees “obtain approval prior to working overtime,” id.,
and report those hours on a specified payroll form, id. at 749. The City paid the
plaintiff for all of the hours he reported on the payroll forms; it did not pay him
for the unauthorized overtime that he failed to properly report. Id. at 748.
      The plaintiff in Newton argued that despite his failure to follow protocol,
he was owed compensation for unpaid overtime because “he reported his
activities to [the City] on a daily basis,” although not the specific number of
hours worked, and that, as a result, the City had constructive knowledge of his
overtime hours. Id. After the trial court granted judgment for the plaintiff, we
reversed and rendered judgment in favor of the City. Id. at 746–47. We
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emphasized that his employer had expressly ordered the plaintiff not to work
overtime; the plaintiff had ignored the procedures for reporting such overtime;
and no other evidence established that his supervisors should have known he
was required to work overtime. Id. at 749–50. We also highlighted that this
was not a case in which the defendant “encouraged or forced [the plaintiff] to
submit incorrect time sheets.” Id. at 750.
      Fairchild, on appeal, alleges All American failed to pay her overtime for
the two periods in which she worked as a manager trainee—December 2011
through March 2012 and September 2012 through January 2013. During this
time, Fairchild was paid for the overtime hours she reported through All
American’s timekeeping system. However, she now seeks payment for the
alleged overtime hours that she worked but did not report to All American. The
district court denied overtime compensation for both periods. We hold that it
did not clearly err in not accepting Fairchild’s assertions that All American
had actual or constructive knowledge that she worked overtime for which she
had not been paid.
      With regard to the first period as manager trainee, Fairchild—like the
plaintiff in Newton—ignored her employer’s policy and procedures: she neither
sought authorization to work such overtime nor reported the alleged hours
through All American’s timekeeping system. Id. at 749. Indeed, Fairchild
testified that she intentionally failed to report her unauthorized overtime
specifically because All American prohibited such overtime. To hold that she is
entitled to deliberately evade All American’s policy would improperly deny All
American’s “right to require an employee to adhere to its procedures for
claiming overtime.” Id.; see also White v. Baptist Mem’l Health Care Corp., 699
F.3d 869, 876 (6th Cir. 2012) (“When the employee fails to follow reasonable
time reporting procedures she prevents the employer from knowing its


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obligation to compensate the employee and thwarts the employer’s ability to
comply with the FLSA.”).
      Fairchild counters that her computer usage reports, which allegedly
show she was working after “clocking out,” proves that All American had
constructive knowledge that she was working overtime. We find this argument
unavailing. Although All American could have potentially discovered that she
was working overtime based on the usage reports, “the question here is
whether [the employer] should have known.” Newton, 47 F.3d at 749. The
district court did not clearly err in holding that mere “access” to this
information is insufficient for imputing constructive knowledge. Id.
      Lastly, although not dispositive, we note the absence of evidence
suggesting that All American required Fairchild to submit falsified time
records that underreported her hours. All American instructed her not to work
overtime other than that for which she was approved. Fairchild’s subjective
belief that, as she testified, All American “permitted [her] to get the job done”
does not establish that it implicitly approved or required such overtime. See id.
at 748–49 (finding that an employee was not approved to work overtime despite
being instructed to “go out and do the job” when the supervisors had expressly
told the employee not to work unauthorized overtime hours). Accordingly,
Fairchild cannot prevail on her FLSA claim for overtime compensation for
hours that she deliberately failed to report in violation of All American’s policy
and that All American otherwise did not have reason to believe she had
worked.
      With regard to the second period as manager trainee, Fairchild’s only
evidence was her unsubstantiated testimony that she worked approximately
ten hours of overtime a week and was not paid overtime for this period. Unlike
with the first period, she did not seek to introduce any computer usage reports.
The district court found that Fairchild “had failed to make a case” that she was
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improperly denied overtime compensation. In light of the evidence introduced,
the district court did not clearly err in finding that Fairchild did not prove that
she had in fact worked overtime during this period and had not been paid for
it. See, e.g., Ihegword v. Harris Cty. Hosp. Dist., 555 F. App’x 372, 375 (5th Cir.
2014) (rejecting an FLSA overtime claim where the employee’s only evidence
was her “unsubstantiated assertions speculated from memory . . . that she
actually worked overtime for which she was not compensated”).
B.    The Title VII Claim
      The parties agreed to a jury trial for Fairchild’s pregnancy-based sex
discrimination claim under Title VII. Where, as here, the district court grants
the defendant’s motion for judgment as a matter of law under Federal Rule of
Civil Procedure 50 after the close of the plaintiff’s case in chief, “[w]e review
the district court’s ruling de novo, applying the same Rule 50 standard as did
the district court.” Brennan’s Inc. v. Dickie Brennan & Co. Inc., 376 F.3d 356,
362 (5th Cir. 2004). Rule 50 entitles the movant to judgment as a matter of law
when “a party has been fully heard on an issue . . . and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for
that party on that issue.” Fed. R. Civ. P. 50(a)(1). Evidence is legally
insufficient “when the facts and inferences point so strongly and
overwhelmingly in the movant’s favor that reasonable jurors could not reach a
contrary verdict.” Brennan’s Inc., 376 F.3d at 362. Therefore, “[i]n considering
a Rule 50 motion, the court must review all of the evidence in the record,
drawing all reasonable inferences in favor of the nonmoving party; the court
may not make credibility determinations or weigh the evidence, as those are
jury functions.” Id.
      Title VII, in pertinent part, makes it unlawful for an employer “to
discharge any individual . . . because of such individual’s . . . sex.” 42 U.S.C.
§ 2000e–2(a)(1). As amended by the first clause of the PDA, the terms “because
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of sex” “includ[e], but [are] not limited to, ‘because of or on the basis of
pregnancy, childbirth, or related medical conditions.’” Laxton v. Gap Inc., 333
F.3d 572, 577 (5th Cir. 2003) (quoting 42 U.S.C. § 2000e(k)). “A claim brought
under the PDA is analyzed like any other Title VII discrimination claim.” Id.
at 578. Thus, for a pregnancy-based sex discrimination claim, an employer is
liable for disparate treatment, which occurs when the employee’s “protected
trait actually motivated” the employer to take the adverse employment action.
Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1345 (2015) (quoting
Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003)). A “plaintiff can prove
disparate treatment either (1) by direct evidence that a workplace policy,
practice, or decision relies expressly on a protected characteristic, or (2) by
using the burden-shifting framework set forth in McDonnell Douglas [Corp. v.
Green, 411 U.S. 792 (1973)].” Id.
      “Direct evidence is evidence which, if believed, proves [disparate
treatment] without inference or presumption.” Jones v. Robinson Prop. Grp.,
L.P., 427 F.3d 987, 992 (5th Cir. 2005). Fairchild’s only direct evidence
concerns alleged statements made by Wendy Lambert, a manager of All
American’s store in Laurel, Mississippi. Specifically, Fairchild at trial sought
to testify that while Fairchild and Lambert were having lunch after Fairchild’s
termination, Lambert said that “[Fairchild’s] pregnancy was related to [her]
termination.” All American objected to this testimony, arguing that such
evidence was inadmissible hearsay. The district court sustained the objection,
explaining the out-of-court statements, which were made during a social
occasion, were not subject to the party-opponent exception provided for in
Federal Rule of Evidence 801(d)(2).
      On appeal, Fairchild contends that the district court erred and that
Lambert’s statements are admissible under Rule 801(d)(2)(D). We “review the
trial court’s evidentiary rulings under an abuse of discretion standard.” Curtis
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v. M&S Petroleum, Inc., 174 F.3d 661, 667 (5th Cir. 1999). Rule 801(d)(2)(D)
provides that a statement is not hearsay when it is “offered against an opposing
party” and “was made by the party’s agent or employee on a matter within the
scope of that relationship and while it existed.” Fed. R. Evid. 801(d)(2)(D). This
exception does not apply to an employee’s statement concerning a termination
decision when that employee “had nothing to do with” that decision. Staheli v.
Univ. of Miss., 854 F.2d 121, 127 (5th Cir. 1988). Such statements do not
“concern a matter within the scope of” the employment relationship and
instead are “made in [that employee’s] capacity as wiseacre only.” Id.
      The district court did not abuse its discretion in excluding the evidence
regarding Lambert’s alleged statements. Fairchild failed to present any
evidence that Lambert was involved in All American’s decision to terminate
her. The mere fact that Lambert was a managerial employee at a different All
American location than where Fairchild worked does not establish that her
statements were within the scope of Lambert’s employment relationship with
All American. See id. (citing Hill v. Speigel, Inc., 708 F.2d 233, 237 (6th Cir.
1983)).
      In the absence of direct evidence, Fairchild may still prove disparate
treatment if her circumstantial evidence satisfies McDonnell Douglas’s
burden-shifting framework. Young, 135 S. Ct. at 1353. Under this framework,
the plaintiff initially has the burden to prove a prima facie case of
discrimination. Id. If the plaintiff carries her burden, the employer has the
opportunity to produce a “legitimate, nondiscriminatory reason” for the
disparate treatment. Id. at 1345 (quoting McDonnell Douglas, 411 U.S. at 802).
“If the employer articulates such a reason, the plaintiff then has ‘an
opportunity to prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant [i.e., the employer] were not its true reasons,


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but were a pretext for discrimination.’” Id. (alteration in original) (quoting
Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
      As the district court found, Fairchild’s only circumstantial evidence is
the temporal proximity between All American learning that she was pregnant
and her termination in late January 2013. The parties dispute the appropriate
time frame by which to measure the temporal proximity. All American claims
that the proximity is two months—the time lapse between Fairchild initially
informing her supervisor and manager of her pregnancy in late November 2012
and her firing. Fairchild contends that the proximity is two days—the time
lapse between Mark Hendrix becoming acting supervisor of the Hattiesburg
store and Hendrix instructing Fairchild’s manager, Fowler, to fire her.
      Even assuming without deciding that a reasonable trier of fact could find
that Fairchild established her prima facie case, we hold that the district court
was correct to conclude that Fairchild failed to rebut All American’s legitimate,
nondiscriminatory reasons. As the district court recognized, the record is
“replete”   with   legitimate,   non-discriminatory   reasons    for   Fairchild’s
termination: her contentious relationship with her manager; the problems she
caused regarding store morale and customer service; and her repeated
performance-related problems that resulted in warnings, including a citation
issued after she informed All American of her pregnancy. Consequently, under
McDonnell Douglas, the burden shifted back to Fairchild, which, in the context
of a Rule 50 motion, required Fairchild to show that a reasonable trier of fact
could conclude that All American’s offered reasons were pretextual. Wallace v.
Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001). In order to meet this
burden, Fairchild “must put forward evidence rebutting each of the
nondiscriminatory reasons the employer articulates.” Id.
      Yet, as noted, Fairchild’s only evidence is temporal proximity. This
Circuit has not yet addressed whether the temporal proximity between an
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employer learning of the plaintiff’s pregnancy and the challenged employment
action can be sufficient to prove pretext. In the context of other employment
discrimination claims, we have held that while suspicious timing may be
evidence of pretext under McDonnell Douglas, such “[t]iming standing alone is
not sufficient absent other evidence.” Boyd v. State Farm Ins. Companies, 158
F.3d 326, 330 (5th Cir. 1998); accord Burton v. Freescale Semiconductor, Inc.,
798 F.3d 222, 240 (5th Cir. 2015) (disability discrimination claim under the
Americans with Disabilities Act). In Burton, for instance, the plaintiff suffered
a work-related injury that she claimed rendered her physically disabled. 798
F.2d at 226. In assessing her claim under McDonnell Douglas, we
acknowledged that the temporal proximity between the plaintiff revealing her
disability to her employer and her termination, by itself, was not enough to
establish pretext. Id. at 240. Our sister circuits, relatedly, have recognized that
the temporal proximity between the plaintiff disclosing her pregnancy and her
termination “cannot alone prove pretext.” Asmo v. Keane, Inc., 471 F.3d 588,
598 (6th Cir. 2006); see also Govori v. Goat Fifty, L.L.C., 519 F. App’x 732, 734
(2d Cir. 2013); Borwick v. T-Mobile W. Corp., 535 F. App’x 650, 652 (10th Cir.
2013). Moreover, we find instructive this Court’s reasoning regarding temporal
proximity as applied to retaliation claims: to allow the plaintiff to prove pretext
based solely on temporal proximity “would unnecessarily tie the hands of
employers” after the protected conduct or, in this case, the protected status is
disclosed. Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir.
2007).
      Therefore, with respect to evidence of timing, we decline to adopt a
different analysis for pregnancy-based sex discrimination claims under Title
VII. Although the temporal proximity between the employer learning of the
plaintiff’s pregnancy and her termination may support a plaintiff’s claim of
pretext, such evidence—without more—is insufficient. Because the only
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circumstantial evidence in this case was temporal proximity, All American was
entitled to judgment as a matter of law after it established legitimate,
nondiscriminatory reasons for Fairchild’s termination.
                            III. CONCLUSION
     For the foregoing reasons, we affirm the district court’s judgment in
favor of All American on the FLSA claim and the Title VII claim.




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