     Case: 13-20049       Document: 00512298649         Page: 1     Date Filed: 07/08/2013




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

                                                                            FILED
                                                                            July 8, 2013

                                     No. 13-20049                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



PAMELA A. LORENTZ,

                                                  Plaintiff-Appellant
v.

ALCON LABORATORIES, INC.,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-1778


Before KING, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Pamela Lorentz took leave under the Family and Medical Leave Act to
care for her sick daughter. She alleges that upon her return to work, her
employer, Alcon Laboratories, Inc., terminated her in retaliation for taking
leave. Lorentz appeals the district court’s grant of Alcon’s motion for summary
judgment. For the following reasons, we AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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           I. FACTUAL AND PROCEDURAL BACKGROUND
      Pamela Lorentz (“Lorentz”) began working for Alcon Laboratories, Inc.
(“Alcon”) as a refractive account manager on January 5, 2007.               Her
responsibilities included selling two types of Alcon premium intraocular lens
implants, and managing a sales territory consisting of the Houston area, as well
as parts of Louisiana and Mississippi.      Her responsibilities also included
performing various administrative tasks, such as logging sales calls and timely
submitting reports to her supervisor.       Although she received an overall
performance rating of “Fully Meets Expectations” on her 2007 performance
review, the review identified several areas in need of improvement. Specifically,
the review noted that “[a]dministrative tasks are completed with mixed
timeliness,” Lorentz’s sales call reporting was “hit or miss on consistency,” and
her sales calls had been “impacted significantly” by her “personal obligations.”
From January to April 2008, her territory management “was below
expectations,” and she suffered “performance deficiencies.”
      Part of Lorentz’s employment problems stemmed from her efforts to
manage her thirteen-year-old daughter’s medical problems, which became
serious in October 2007. According to Lorentz, “[i]t was becoming ‘increasingly
difficult’ . . . to manage her daughter’s illness and her job of selling” Alcon’s
products. Her supervisor and division manager, Matt Bachmann, also became
frustrated with her need to leave work to take her daughter to different doctors.
      The stress Lorentz experienced trying to balance her professional and
personal obligations caused her to make mistakes at work, which eventually led
her to meet with Bachmann and request leave to care for her daughter under the
Family and Medical Leave Act (“FMLA”). Bachman apparently was taken aback
by her request, grew red in the face, and said they needed to end the
conversation before either one of them said something they would regret. Her
request for leave was granted, however, and she was on leave from May 5 to July

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25, 2008—the full twelve weeks available under FMLA. During this time,
Bachmann called Lorentz three or four times to find out when she would be
coming back to work. Lorentz eventually returned to work on July 28 to a
territory consisting only of the greater Houston area in accordance with Alcon’s
earlier plan to realign its territories across the United States.
      Upon her return, Lorentz continued to struggle despite the reduced
territory. According to Lorentz, she had a “horrible” sales month in August.
Additionally, although having no more paid time off (“PTO”), she also was absent
from work during all or part of three days between July 28 and September 10.
Her inconsistent completion of administrative tasks also continued.
      She received a visit on August 21 from Bachmann’s supervisor, regional
director Craig Vlaanderen, who asked her about Bachmann, her daughter, and
the leave of absence. Vlaanderen, together with Bachmann, again met with
Lorentz on September 10. They discussed Lorentz’s performance deficiencies,
including the three days she was absent in whole or in part since returning from
FMLA leave. A letter dated September 17 summarized their conversation, and
listed the areas in which Lorentz needed to improve. The letter also warned that
her “job performance [was] trending toward a [below expectations] rating.” It
also listed, as “certain minimum job expectations,” attendance in the field,
prompt attendance at all business functions, three sales calls each business day,
properly documenting sales calls, and completing all administrative tasks in a
timely manner. According to Lorentz, no other employee was subjected to
similar requirements and Alcon’s company policy typically provided flexible
leave time for sales professionals.
      Lorentz, Bachmann, and Vlaanderen again met on November 5 to discuss
her continuing problems. These included being late to pick up Bachmann during
a field visit, repeatedly failing to make three sales calls per day, and failing to
send call planning reports. Vlaanderen informed her that he had lost confidence

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in her ability to do her job and that she could resign. When Lorentz refused to
resign, she was placed on a 90-day Performance Improvement Plan (“PIP”)
beginning December 1, 2008. As before, Lorentz was required to adequately
complete her administrative duties, but also had to improve sales in her territory
by an increment of five percent per month.
      At the end of 2008, Lorentz’s overall performance was rated as below
expectations. Her performance under the PIP was reviewed in March 2009.
While improving in certain areas, she failed to meet all PIP requirements. The
PIP was extended for 60 days. Lorentz continued making some progress, but her
completion of administrative duties remained deficient.        Her employment
subsequently was terminated effective May 15, 2009.
      On May 10, 2011, Lorentz filed suit in district court alleging that Alcon
interfered with her substantive rights under FMLA and retaliated against her
for taking FMLA leave. Alcon moved for summary judgment, which the district
court granted on January 4, 2013. The district court found that Lorentz’s
request for leave was granted, and that Alcon did not interfere with her leave.
It further found that her employment was not terminated because she took
leave, and also rejected her contention that other similarly situated employees
were retaliated against for taking FMLA leave. It concluded that Lorentz “was
fired for exacerbating a long-term low performance in sales and support work
with impudence.” Lorentz timely appealed the district court’s dismissal of her
FMLA retaliation claim.
                        II. STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Lindquist v. City of Pasadena Tex., 669
F.3d 225, 232 (5th Cir. 2012). The district court’s judgment should be affirmed
“if, viewing the evidence in the light most favorable to the non-moving party,
there is no genuine dispute [as] to any material fact and the movant is entitled

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to judgment as a matter of law.” United States ex rel. Jamison v. McKesson
Corp., 649 F.3d 322, 326 (5th Cir. 2011); see Fed. R. Civ. P. 56(a).
                                   III. DISCUSSION
       On appeal, Lorentz argues only that the district court improperly granted
summary judgment on her claim that Alcon retaliated against her for taking a
twelve-week leave of absence under FMLA.1                    Because Lorentz relies on
circumstantial evidence to support her FMLA retaliation claim, we turn to the
familiar McDonnell Douglas burden-shifting framework.2 Hunt v. Rapides
Healthcare Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001). Under that framework,
Lorentz must first establish a prima facie case of retaliatory discharge by
showing that: “(1) she engaged in a protected activity, (2) the employer
discharged her, and (3) there is a causal link between the protected activity and
the discharge.” Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir.
2005). If she can establish her prima facie case, the burden shifts to Alcon to
articulate a legitimate, nonretaliatory reason for terminating her. Id. If Alcon
presents such a reason, the burden shifts back to Lorentz to show “by a
preponderance of the evidence that the employer’s articulated reason is a pretext
for discrimination.” Id. at 332–33.
       An employee may establish pretext “directly, by showing a [retaliatory]
reason motivated management, or indirectly, by showing that the reasons given



       1
        Finding the district court’s grant of summary judgment correct, we do not reach
Lorentz’s argument that on remand we should reassign this case to a different district judge.
       2
         Confusingly, Lorentz argues in her reply brief that she has presented direct evidence
of retaliatory intent, despite otherwise conforming her arguments to the McDonnell Douglas
burden-shifting framework. See Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012)
(discussing four-part test for direct evidence claims and two-part test for mixed evidence
claims). However, a review of her appellate brief shows that the evidence she presents
actually relates to establishing the causal link of her prima facie retaliation claim. As
discussed later, we assume, without deciding, that Lorentz has sufficiently established a prima
facie FMLA retaliation claim.

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for management’s actions are simply not believable.” Rios v. Rossotti, 252 F.3d
375, 378 (5th Cir. 2001) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981)). Alternatively, pretext may be established through evidence of
disparate treatment. Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir.
2011); Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
       For purposes of this appeal, Alcon does not dispute that Lorentz has
established a prima facie case of retaliatory discharge. Similarly, Lorentz does
not dispute that poor performance could constitute a legitimate, nonretaliatory
reason for her termination. Therefore, the only remaining issue is whether
Lorentz can show that Alcon’s purported reasons for terminating her—deficient
performance—were pretextual.3
       Lorentz puts forth various grounds on which to find pretext. She primarily
relies on what she describes as her employer’s relentless attacks and adverse
actions following her return from leave to show a retaliatory motive. She also
disputes the district court’s characterization of her as a long-term poor
performer, and thus seeks to undermine Alcon’s explanation that she was
terminated for performance-related reasons.4 Finally, she argues that she was
treated less favorably than other employees and that other employees who took
FMLA leave also suffered retaliatory action.                 After reviewing Lorentz’s




       3
        The parties dispute whether Lorentz preserved her challenge under the alternate
“mixed-motive framework,” which modifies the third step of the McDonnell-Douglas
framework by allowing an employee to avoid summary judgment if she “offer[s] sufficient
evidence to create a genuine issue of fact . . . that the employer’s [nonretaliatory] reason,
although true, is but one of the reasons for its conduct, another of which was [retaliation].”
Richardson, 434 F.3d at 333. We agree with Alcon that Lorentz did not sufficiently raise her
mixed-motive theory in district court. See Nasti CIBA Specialty Chems. Corp., 492 F.3d 589,
595 (5th Cir. 2007) (litigant seeking to preserve argument for appeal “must press and not
merely intimate the argument during the proceedings before the district court”).
       4
        Although there is some dispute as to whether Lorentz also was terminated for
insubordination, Alcon’s termination letter refers only to “performance reasons.”

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arguments, we conclude that Lorentz has not met her burden of showing that
Alcon’s reason for terminating her was pretextual.5
A.     Retaliatory Statements
       Central to Lorentz’s retaliation claim is her characterization of the
September 10 meeting between herself, Bachmann, and Vlaanderen (and the
subsequent September 17 letter summarizing their meeting) as evidencing a
retaliatory motive. See Laxton, 333 F.3d at 578 (“A plaintiff may establish
pretext . . . by showing that the employer’s proffered explanation is false . . . .
[i.e.,] it is not the real reason for the adverse employment action.”). According
to Lorentz, on September 10, Bachmann and Vlaanderen “team[ed] up” and
“confront[ed] Lorentz about her time away from work.” In support of her
argument, she identifies various statements made by Bachmann and
Vlaanderen.       These include that Lorentz was “trying to make her work
‘cooperate with everything else’ in her life,” that unlike Lorentz, Vlaanderen
“leaves his family to go to work,” that she may not be “‘a good fit’ or ‘the right fit’”
for the company, and that “there are ‘other options’ for her.”
       A review of the transcript of the meeting Lorentz secretly recorded shows
not only that her description of the meeting is inaccurate, but also that the

       5
        Because Lorentz discusses temporal proximity between when she returned from leave
and when she purportedly suffered adverse employment actions only in the context of
establishing her prima facie case, it is unclear whether she also relies on this ground to show
pretext. See Baumeister v. AIG Global Inv. Corp., 420 F. App’x 351, 356 (5th Cir. 2011)
(unpublished) (pretext may be established through temporal proximity between FMLA leave
and termination). Lorentz points out that only six weeks passed from when she returned from
leave before Bachmann and Vlaanderen met with her to critique her performance. As later
discussed, we find that the September 10 meeting does not support Lorentz’s claim of pretext.
See Wilson v. Noble Drilling Servs., Inc., 405 F. App’x 909, 914 (5th Cir. 2010) (per curiam)
(unpublished) (suspicious timing without more is insufficient to show pretext). Additionally,
Lorentz had received many warnings about her performance in the past. See Grubb v. Sw.
Airlines, 296 F. App’x 383, 390 (5th Cir. 2008) (per curiam) (unpublished) (termination of flight
instructor three weeks after raising possibility of FMLA leave did not show pretext where
instructor had received several warnings relating to performance problems over previous
eighteen months). As a result, to the extent she seeks to show pretext through temporal
proximity, her argument fails.

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quotations she relies on are taken out of context. The September 10 meeting
actually was about how Lorentz’s personal life continued interfering with her
work despite Lorentz having used up all her remaining PTO and FMLA leave.6
The three talked about the workdays that Lorentz had missed since returning
from FMLA leave either because she was sick or because her daughter had to be
taken to the doctor. They also discussed problems relating to the time her
daughter’s school was starting. All this led Vlaanderen to comment that “it
seems like your work has to fit with your life,” and that “it doesn’t matter to me
why [you miss work]. All [that] matters to me is that all of these things keep you
away or are reasons why you either can’t be there or you have to cut the day
short, whatever. And all I’m telling you is . . . that can’t happen.”
       Vlaanderen returned to this topic many times throughout the meeting. “I
don’t know if it’s the timing in—in your life and this job. But . . . now it seems
to be in conflict with everything else, and that can’t be. . . . So we have to figure
that out, or ultimately, we’ll have to part ways.” Lorentz responded “I agree.
Absolutely.” She continued, “[t]he honest truth is my family comes before
anything else. But I do recognize that, you know, there has to be a balance
there. And unfortunately, the way [my] life is, my husband’s gone a lot and, you
know, the kids . . . .” Later still, Vlaanderen observed that “there’s always a
good reason [for your absence]. And [we are] not saying that there are no good
reasons. There are mitigating circumstances, but there is a body of evidence, all
of it keeping you, again, from being in your job, you know, all the time doing
things we need you to do.” Vlaanderen’s statements reflect the difficult position
a manager faces when an employee exhausts her PTO and FMLA leave, but
continues to miss work for personal reasons. Vlaanderen encouraged Lorentz


       6
         Although asserting that she could have borrowed additional PTO from that available
the following year, Lorentz acknowledged during the meeting that she did not have any
remaining PTO.

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to contact Alcon’s human resources department, but stressed that her missing
work—regardless of the reasons—could not continue. Nothing in the September
10 meeting transcript demonstrates that Bachmann and Vlaanderen cared about
the fact that Lorentz had taken FMLA leave, rather than that she was failing
to keep up with her work.7 See Grubb, 296 F. App’x at 391 (“As a general
proposition, ‘[a]n employee who requests or takes protected leave under the
FMLA is not entitled to any greater rights or benefits than he would be entitled
to had he not requested or taken leave.’” (alteration in original) (citation
omitted)). Lorentz has failed to show pretext based on the September 10
meeting, or the subsequent September 17 letter.8
B.     Deficient Performance
       Lorentz also seeks to show that her work was not deficient, and thus
Alcon’s reason for terminating her is “unworthy of credence.” See Laxton, 333
F.3d at 578 (quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir.
2001). She points out that the only review of her work to have been completed
prior to her FMLA leave (and thus, according to her, before any retaliatory
intent could bias subsequent evaluations) listed her as fully meeting
expectations at the end of 2007. Her field training manager also was “extremely
impressed” by her overall progress. Lorentz does not address the many parts of



       7
         Lorentz asserts that Alcon’s actions contravene FMLA’s purpose because Congress
intended for employees like her to take FMLA leave to balance their professional and personal
responsibilities. But here the problem is not that Lorentz did not take FMLA leave. Instead,
the problem is that the amount of leave was insufficient for Lorentz to resolve her problems
at home. However, while an employer may “provide[] greater unpaid family leave rights than
are afforded by FMLA,” it is not required to do so. 29 C.F.R. § 825.700(a).
       8
          Lorentz lists other supposed evidence of retaliatory intent, including Bachmann’s
reaction to her request for leave, his calling her to inquire when she would return to work, and
his reminder to Lorentz that she had no PTO left. This evidence appears to relate to Lorentz’s
claim that Alcon interfered with her substantive FMLA rights. Lorentz has not appealed the
district court’s dismissal of that claim and we do not find that the remarks show that Alcon’s
reason for terminating her was pretextual.

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her 2007 performance review that were critical of her performance. These
included the need to better document her call activity, the timeliness of her
reporting and completion of administrative tasks, and conflicts between her
personal obligations and work performance.
      The same problems continued to plague her in the subsequent 2008
performance review.      That review also commented on the need for more
consistent and documented reporting.            It also noted her lack of good
communication. Overall, it found her to have performed below expectations.
Comparing the two reports, it is clear that, contrary to Lorentz’s assertions, her
performance problems arose long before she ever went on FMLA leave.
      While generally asserting that she complied with her position’s
administrative requirements, she does not refute the many specific documented
infractions. These included the late filing of three weekly reports, failure to
submit documentation of calls, tardy expense reports, unplanned PTO, and being
late to pick up Bachmann during a field visit. Perhaps in an effort to divert
attention from her administrative deficiencies, Lorentz draws attention to
Vlaanderen’s statement during the September 10 meeting that “[t]he bottom
line . . . [is] what did you do today to get that extra lens implanted tomorrow. . . .
That’s really all I care about.” Lorentz’s argument appears to be that because
she exceeded Alcon’s sales quota, she could not be terminated for failing to
complete comparably less-important administrative tasks. Aside from Alcon’s
legitimate interest in seeing Lorentz complete her administrative duties in a
timely manner, Vlaanderen made clear that Lorentz could not ignore other parts
of her job merely by keeping her sales up. At the September 10 meeting,
Vlaanderen told her that “I’m not saying that you had to turn the [sales]
numbers around. . . . I’m saying that the activities and the things that we want
you to do on a daily basis are not getting done.” Lorentz has failed to show that
she was not deficient in her work, or that Alcon was unconcerned with her

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failure to complete what she terms “minor administrative tasks,” and thus has
failed to establish pretext on these grounds. See Mayberry v. Vought Aircraft
Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (noting that even an incorrect belief that
an employee’s performance is inadequate can constitute a legitimate,
nondiscriminatory reason for an employment decision, and that evidentiary
disputes concerning job performance are insufficient to show that a proffered
justification is unworthy of credence).
C.     Less Favorable Treatment
       Finally, Lorentz argues that she received less favorable treatment than
other employees. See Vaughn, 665 F.3d at 637 (pretext may be shown “where an
employer treats one employee more harshly than other ‘similarly situated’
employees for ‘nearly identical’ conduct”). Lorentz broadly asserts that, upon
returning from FMLA leave, Bachmann and Vlaanderen imposed numerous
additional administrative duties on her. She cites the September 17 letter that
required her to be in the field without exception, make three calls per business
day to targeted surgeons, and prepare planned call reports a week in advance.
However, she acknowledges that “administrative requests varied” among
employees and “[i]t just depended on your manager.” She also skips over her
lengthy history of sub-par performance, which led to the additional supervision,
institution of a PIP, and ultimately her termination.
       Lorentz also does not identify similarly situated individuals who had the
same performance deficiencies but were not subjected to additional
administrative duties. While she points to her replacement, Brook F., who
allegedly performed below expectations, and was not placed on a PIP or
terminated, Brooke F. was supervised by Bachmann for only a short period of
time. See Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009)
(“Employees with different supervisors . . . generally will not be deemed
similarly situated.”).     Lorentz also identifies Amanda Nissley and Kristin

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Kepreos, both of whom went on FMLA leave and subsequently left Alcon’s
employ. Like Lorentz, Nissley was put on a PIP after returning from FMLA
leave. Unlike Lorentz, she was never supervised by Bachmann. See id. Kepreos
was investigated for misappropriating company funds shortly after she returned
from FMLA leave, and was, like Lorentz, terminated. But Kepreos was not
supervised by Bachmann when she took FMLA leave or when she was
terminated. See id. Her situation further differs from Lorentz’s in that Lorentz
was terminated for persistent performance deficiencies, whereas Kepreos was
terminated for alleged malfeasance. See Perez v. Tex. Dep’t of Criminal Justice,
395 F.3d 206, 213 (5th Cir. 2004) (employees misconduct must have been “nearly
identical”).
      Accordingly, none of the individuals Lorentz identifies are sufficiently
similar to Lorentz to demonstrate that she either was treated less favorably, or
that Alcon generally retaliated against employees who took FMLA leave. She
thus has failed to meet her burden of showing pretext.
                             IV. CONCLUSION
      Because Lorentz has failed to show that Alcon’s reason for terminating her
was pretextual, the district court’s grant of summary judgment is AFFIRMED.




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