     Case: 15-40061      Document: 00513255248         Page: 1    Date Filed: 11/02/2015




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

                                    No. 15-40061                                   FILED
                                  Summary Calendar                          November 2, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
YVETTE GARCIA,

              Plaintiff - Appellant

v.

PENSKE LOGISTICS, L.L.C.,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:13-CV-85


Before STEWART, Chief Judge, and PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Yvette Garcia (“Garcia”) appeals the district court’s
grant of summary judgment in favor of Defendant-Appellee Penske Logistics,
LLC (“Penske”) in this suit arising out of Garcia’s discrimination and
retaliation claims. For the reasons stated herein, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                      No. 15-40061
                                             I.
       Starting in 2002, Garcia worked as a Customer Service Representative
for Penske 1 at its Mines Road distribution center (“the Mines Road facility”) in
Laredo, Texas. 2     Penske’s sole customer from its Mines Road facility was
Delphi Automotive Systems, LLC (“Delphi”). 3
       During her tenure at Penske, Garcia suffered from several serious health
problems. Starting in 2004, Garcia experienced chronic bronchitis and asthma,
which were later diagnosed as chronic obstructive pulmonary disease, “COPD.”
Garcia also suffered from a bleeding disorder that manifested in 2005. These
problems intensified over time, causing Garcia to request leave twenty-five
times from 2006 to 2011 under the Family and Medical Leave Act (“FMLA”).
Each request was granted by a supervisor at Penske. Penske did not discipline
Garcia for taking sick leave or a leave of absence, and Garcia was not placed
in a different job position at any point upon returning to Penske.
       However, her frequent sick leave began to cause issues at work. Various
co-workers complained to Garcia’s facility manager, Hector Javier Garcia (“Mr.
Garcia”), that Garcia would call in sick at the last minute and would be
inaccessible during her absences from the office. 4 Similarly, when Garcia was
offered and accepted a Sales Manager position in 2008 directly working with
Delphi, Mr. Garcia noted to Delphi executive, Mark Heacox (“Heacox”), that he
had concerns about Garcia because she was “sickly and cannot always come to



       1 Penske is a limited liability company that provides trucking and logistics services
across the globe.
       2 Prior to her employment with Penske, Garcia was employed by another company,

Ryder Systems, Inc. (“Ryder”) beginning in 1989 at its Laredo, Texas facility. Penske
acquired Ryder in 2002.
       3 Delphi is a subsidiary of General Motors that designs, engineers and manufactures

automotive parts.
       4 Mr. Garcia would respond that Garcia was entitled by law to take leaves of absence

under the FMLA.
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                                No. 15-40061
work.” On April 13, 2010, due to Garcia’s continuing illness, Garcia’s then
supervisor, John Kalusniak, informed Garcia that she could work from home
when she saw fit.
      That same spring, Garcia began a romantic relationship with Heacox.
Shortly thereafter, Garcia’s co-workers began to complain to Delphi
Investigations Manager Jarriel Koplin (“Koplin”) that Garcia was abusing her
relationship with Heacox. Specifically, Koplin received a complaint from a
Delphi employee alleging that Heacox paid Garcia’s expenses for lodging,
vehicles, and meals using company funds, although these expenses were not
business related. Delphi investigated the complaint and found irregularities
concerning personal expenses charged to Heacox, but otherwise found no
evidence of fraud. However, the investigation uncovered additional complaints
against Garcia. One complaint detailed a telephone conversation where Garcia
allegedly yelled at an employee, saying “you better do it or you will lose your
job. I will let Mark Heacox know, so he will take care of you.” Koplin received
a second complaint describing Garcia as “rude and demanding”; this complaint
detailed several conversations where she warned that she would rely on
Heacox to ensure that the employee no longer worked for Delphi. A final
complaint from a third employee, Delphi Warehouse General Supervisor David
Mercer, described a “verbal beating” he received from Garcia during two
telephone calls. Garcia allegedly threatened to take her concerns to upper
management “whenever she encounters an answer she doesn’t like.”
      In March 2011, amidst the ongoing investigation, Penske requested that
Garcia return to the office instead of continuing to work from home. Garcia
was also removed from the Delphi account at Delphi’s request. Specifically,
Mark Cashdollar (“Cashdollar”), Delphi’s Director of Americas Human
Resources, stated in an e-mail in early June 2011 that Delphi would “no longer
be requiring Garcia’s services.” As a result, Penske identified two alternate
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                                     No. 15-40061
positions that Garcia was eligible for, both of which would require Garcia to
continue to work with Delphi. However, Cashdollar informed Penske that they
no longer wanted Garcia to work with Delphi in any capacity. Garcia was fired
on July 1, 2011.
      Garcia filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) alleging that Penske terminated her because of (1) her
sex in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); (2) her
age in violation of the Age Discrimination in Employment Act of 1967
(“ADEA”); (3) her disability in violation of the Americans with Disabilities Act
of 1990 (“ADA”); and (4) her exercise of FMLA leave rights. Mr. Orlando Lopez
(“Lopez”), Garcia’s brother, was appointed to represent Garcia before the
EEOC. 5
      Garcia filed this civil suit on May 29, 2013 and Penske filed a motion for
summary judgment. The district court granted the motion and entered
judgment in Penske’s favor, finding that Garcia’s Title VII, ADEA and ADA
claims were untimely.         The district court also found that while Garcia
presented sufficient evidence to establish a prima facie case under the FMLA,
Penske had a legitimate non-discriminatory reason for Garcia’s termination,
and Garcia did not provide sufficient evidence that Penske’s non-
discriminatory reason was merely pretextual. Garcia timely appealed. We
address each of Garcia’s challenges in turn.
                                             II.
       We review a district court’s grant of summary judgment de novo. See
Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (citation
omitted). Summary judgment is appropriate if “there is no genuine issue as to


      5 Lopez is an Equal Opportunity Specialist with the U.S. Department of Housing and
Urban Development, and has been in that position since August 1, 2011. Prior to that, Lopez
worked for more than two (2) years as a federal investigator for the EEOC.
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                                  No. 15-40061
any material fact and . . . the moving party is entitled to a judgment as a matter
of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). There is no genuine
issue of material fact “[i]f the record, taken as a whole, could not lead a rational
trier of fact to find for the nonmoving party.” Dediol v. Best Chevrolet, Inc.,
655 F.3d 435, 439 (5th Cir. 2011) (citing Steadman v. Tex. Rangers, 179 F.3d
360, 366 (5th Cir. 1999)). In making this determination, we view the facts and
inferences in the light most favorable to the nonmoving party. See Daniels v.
City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001).
                                         III.
                                             A.
      The district court correctly determined that Garcia’s Title VII, ADEA
and ADA claims were untimely. Under Title VII, the ADEA, and the ADA, a
plaintiff must exhaust administrative remedies before pursuing employment
discrimination claims in federal court. See Taylor v. Books A Million, Inc., 296
F.3d 376, 378–79 (5th Cir. 2002). For Title VII and ADA claims, “[e]xhaustion
occurs when the plaintiff files a timely charge with the EEOC and receives a
statutory notice of right to sue.” Id. (citing Dao v. Auchan Hypermarket, 96
F.3d 787, 788–89 (5th Cir. 1996)). A plaintiff must file her civil suit within
ninety days of receipt of a right-to-sue-letter. See 42 U.S.C. § 2000e-5(f)(1)
(Title VII claims); Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 149–50
(1984); see also Dao, 96 F.3d at 788–89 (ADA claims).
      The requirement that a party file a lawsuit within this ninety-day
limitations period under Title VII and the ADA is strictly construed. See
Taylor, 296 F.3d at 379. “[C]ommencement of the ninety-day period begins to
run on the day that notice is received at the address supplied to the EEOC by
the claimant.” Bowers v. Potter, 113 F. App’x 610, 612 (5th Cir. 2004). When
the date on which the right-to-sue letter was actually received is unknown, the
Fifth Circuit follows the presumption that the letter was received three days
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                                  No. 15-40061
after the mailing date of the letter. See Jenkins v. City of San Antonio, 784
F.3d 263, 266–67 (5th Cir. 2015). This court routinely dismisses untimely
claims involving delays after receipt of the right-to-sue letter in the absence of
a recognized equitable consideration. See, e.g., Stokes v. Dolgencorp, Inc., 367
F. App’x 545, 548 (5th Cir. 2010) (dismissing a claim that was 21 days late).
      The ADEA follows a different administrative exhaustion mechanism.
See Julian v. City of Houston, 314 F.3d 721, 725 (5th Cir. 2002); Hawkins v.
Frank Gillman Pontiac, 102 F. App’x 394, 397 (5th Cir. 2004) (“[A]n ADEA
plaintiff need not wait on a right-to-sue letter to be issued by the EEOC before
he files suit.”).    Once a plaintiff has filed a timely EEOC charge of
discrimination under the ADEA, the plaintiff must wait 60 days before filing a
civil action in state or federal court. See 29 U.S.C. § 626(d) (ADEA claims); see
also Julian, 314 F.3d at 726. If the charge is dismissed, the plaintiff must file
within ninety days of the receipt of a notice of dismissal from the EEOC. See
29 U.S.C. § 626(d) (emphasis added).
      In the instant case, the Dismissal and Notice of Right-to-Sue letter states
that it was mailed on Wednesday, January 23, 2013; an EEOC case log reflects
that the letter was mailed on January 24, 2013. The letter was addressed to
Plaintiff “c/o Orlando Lopez.” It warned that the EEOC planned to close
Garcia’s file and that any lawsuit must be filed within ninety days of receipt of
the notice, or Garcia’s right to sue based on this charge would be lost. The
letter was delivered to Lopez at the address provided to the EEOC. Prior to
receiving this notice, Lopez e-mailed Garcia to inform her that she would be
receiving a forthcoming Dismissal and Notice-of-Right-to-Sue.           However,
because Lopez moved from his residence prior to the letter actually being
delivered, he claims that he did not become aware of the letter’s existence until
after the case was closed. Lopez testified that he could not recall the date the
letter was received, had no way of knowing when it was received, and had no
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                                  No. 15-40061
documents which could assist him in identifying that date.           Garcia also
repeatedly testified that she too had no knowledge of when the letter was
received.
      The date that the dismissal and right-to-sue letter was received is
therefore unknown. As such, we must presume that the letter was received
within three days after it was mailed. See Jenkins, 784 F.3d at 266–67. Taking
the later of the two mailing dates, January 24, 2013, Garcia is presumed to
have received the letter on January 27, 2013 at the latest. She was therefore
delinquent when she filed her complaint on May 29, 2013, more than ninety
days after she was presumed to have received the letter.
      Garcia contends that there is a genuine issue of material fact concerning
when she received the notice.        Where a plaintiff can offer evidence to
demonstrate that she did not receive the letter within the allotted time, the
presumption is overcome. See Morgan v. Potter, 489 F.3d 195, 197 n.1 (5th Cir.
2007).   Garcia specifically highlights her deposition testimony, where she
states that the date the letter was received was “much later” than what the
presumption would reflect. However, her testimony related to a FOIA request
made to the EEOC, not the right-to-sue letter.
      Garcia also improperly relies on Smith v. Local Union 28 Sheet Metal
Workers, 877 F. Supp. 165 (S.D.N.Y. 1995). In Smith, the plaintiff testified
that he received the right-to-sue letter on one of two specific dates. Id. at 172.
The court applied the later date but nonetheless found that the plaintiff’s
claims remained untimely. Id. Unlike the plaintiff in Smith, Garcia did not
provide even an approximation of when she received the letter. Indeed, it is
undisputed that the date of receipt is unknown and cannot be determined.
Thus, Garcia has not provided sufficient evidence to rebut the presumption
upon which this court must rely. Accordingly, Garcia’s Title VII, ADEA and
ADA claims were untimely.
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                                   No. 15-40061
                                         B.
      Garcia’s Title VII, ADEA and ADA claims cannot be saved by the
doctrine of equitable tolling. First, this argument is waived on appeal because
Garcia did not raise this argument with the district court. Perez v. Region 20
Educ. Serv. Ctr., 307 F.3d 318, 332 (5th Cir. 2002) (“We note[] ‘our long
established course of refusing, absent extraordinary circumstances, to
entertain legal issues raised for the first time on appeal’ and [find] that no
extraordinary      circumstances    existed”   to     warrant     an    exception.).
Notwithstanding this waiver, a claim for equitable tolling would fail because
Garcia has failed to show (1) the pendency of a suit between the same parties
in the wrong forum; (2) that she was unaware of facts giving rise to this claim
because of Penske’s intentional concealment; or (3) that the EEOC misled her
about the nature of her rights. See Granger v. Aaron’s, Inc., 636 F.3d 708, 712
(5th Cir. 2011); see also Hood v. Sears Roebuck & Co., 168 F.3d 231, 233–34
(5th Cir. 1999).
      Second, we are reluctant to apply equitable tolling to situations of
attorney error or neglect, or where a plaintiff has failed to show that she
pursued her rights diligently. See Granger, 636 F.3d at 712 (citing Wilson v.
Sec’y Dep’t of Veterans Affairs, 65 F.3d 402, 404–05 (5th Cir. 1995)). Lopez, as
Garcia’s representative, neglected to ensure his timely receipt of the EEOC
documents mailed to his former address despite his move, and Garcia failed to
call the EEOC or Lopez despite being informed that her right-to-sue letter
would be forthcoming. See Williams v. Thompson Corp., 383 F.3d 789, 791 (8th
Cir. 2004) (concluding that equitable tolling was not warranted where the
plaintiff failed to update her address with the EEOC after moving, despite her
pending appeal with the EEOC and her awareness that the EEOC intended to
issue her a right-to-sue letter.); Espinoza v. Mo. Pac. R.R. Co., 754 F.2d 1247,
1251 (5th Cir. 1985) (“[Plaintiff’s] position is that, simply because he was out
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                                      No. 15-40061
of town when notice arrived at his home, the equities demand tolling. We
heartily disagree.”); Crittendon v. Am. Nat’l Ins. Co., 967 F. Supp. 933, 942
(S.D. Tex. 1997) (“Failing to provide the EEOC with a current mailing address,
thus jeopardizing the claimant’s ability to receive the EEOC’s notice of right-
to-sue . . . does not justify equitable tolling.”). The district court therefore
correctly found that equitable tolling is not a proper remedy and that Garcia’s
Title VII, ADEA and ADA claims were untimely.
                                              IV.
                                                 A.
       Garcia alleges that Penske terminated her in retaliation for requesting
and taking leave under the FMLA due to her disability. The record does not
support Garcia’s contention. 6 Under the FMLA, a “covered” employer may not
“interfere with, restrain, or deny the exercise of or the attempt to exercise, any
[FMLA leave] right.” 29 U.S.C. § 2615(a). This prohibition extends to employer
retaliation for the exercise of FMLA rights. See 29 C.F.R. § 825.220(c). Among
the rights provided by the FMLA, employees are entitled to “reasonable leave
for medical reasons.” 29 U.S.C. §§ 2601(b)(2), 2612(a)(1).
       Retaliation claims under the FMLA are analyzed under the McDonnell
Douglas burden-shifting framework. See Hunt v. Rapides Healthcare Sys.,
LLC, 277 F.3d 757, 768 (5th Cir. 2001). To survive summary judgment under
this framework, an employee must first make a prima facie case of retaliation.
See Ion v. Chevron USA, Inc., 731 F.3d 379, 390 (5th Cir. 2013). If a plaintiff
establishes a prima facie case of retaliation, the burden shifts to the employer
to provide a “legitimate, non-discriminatory reason for the employment
decision.” Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010)


       6Garcia’s FMLA claim is not subject to a ninety-day limitations period and is reviewed
on its merits.

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                                  No. 15-40061
(quoting Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007)). If
the employer articulates a legitimate, non-discriminatory reason for the
employment decision, the burden returns to the plaintiff, who must then be
afforded an opportunity to rebut the employer’s purported explanation with
evidence that the reason given is merely pretextual. See id. (citing Jackson v.
Cal-Western Packaging Corp., 602 F.3d 374, 378–79 (5th Cir. 2010)). “A prima
facie case coupled with a showing that the proffered reason was pretextual will
usually be sufficient to survive summary judgment.” Hammond v. Jacobs
Field Servs., 499 F. App’x 377, 380–81 (5th Cir. 2012) (per curiam)
(unpublished) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
146–48 (2000) and EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615
(5th Cir. 2009)).
                                         i.
      In order for Garcia to meet the initial burden of establishing a prima
facie case under the FMLA, she must show that (1) she was protected under
the FMLA; (2) she suffered an adverse employment action; and (3) the adverse
action was taken because she took FMLA leave. Ion, 731 F.3d at 390; Hunt,
277 F.3d at 768. The first two elements are undisputed. In analyzing the third
element, this court has yet to decide, contrary to Penske’s hope, that
establishing a prima facie case requires that the plaintiff prove that the
adverse action would not have occurred ‘but for’ the protected activity.
Medina v. Ramsey Steel Co., Inc, 238 F.3d 674, 684 (5th Cir. 2001) (citing
Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)); Ion, 731
F.3d at 390 (“We emphasize that we . . . do not[] decide whether . . . a plaintiff
[must] prove but-for causation.”). At present, FMLA retaliation claims are
analyzed solely by determining whether the discrimination was a motivating
factor in the adverse employment decision. See Richardson v. Monitronics
Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005). Regardless, we need not decide
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                                     No. 15-40061
whether Garcia has established a prima facie case of retaliation under the ‘but-
for’ standard because she has failed to demonstrate a genuine issue of fact
regarding whether Penske’s legitimate, non-discriminatory reason for firing
her was pretextual under the McDonnell Douglas framework. Nonetheless, we
assume but do not decide that Garcia was able to establish a prima facie case
of discrimination under the FMLA. 7
                                             ii.
      Assuming that Garcia has established a prima facie case of retaliation,
Penske has provided sufficient evidence of its legitimate non-discriminatory
reason for its action—namely, Garcia’s conduct and behavior while working
with Delphi resulted in Delphi’s request to no longer work with her. After
Garcia began a romantic relationship with Heacox, Delphi and Penske received
multiple complaints that Garcia was using the relationship to threaten and
intimidate Delphi employees.         As a result, Garcia was removed from the
account and Delphi’s Director of Americas Human Resources stated that
Delphi would “no longer be requiring [Plaintiff’s] services.” Even with this
directive, Penske attempted to identify open positions at Penske that Garcia
could fill. However, Delphi informed Penske that they did not want Garcia to
interact with Delphi in any capacity. This court has continuously found that
customer complaints are legitimate, non-discriminatory reasons for adverse
employment actions. See, e.g., Luna v. Corrections Corp. of Am., 469 F. App’x
301, 302-03 (5th Cir. March 16, 2012); Arrington v. Sw. Bell. Tel. Co., 93 F.
App’x 593, 598 (5th Cir. Feb 26), cert. denied, 543 U.S. 815 (2004).




      7 The district court found that Garcia established a prima facie case of retaliation
under the FMLA.
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                                  No. 15-40061
                                        iii.
      Because Penske has established a legitimate, non-discriminatory reason
for terminating Garcia, the burden now shifts to the plaintiff to present
evidence showing that Penske’s proffered reasons for firing her were pretext
for retaliation. See Sanchez v. Dallas/FortWorth Int’l Airport Bd., 438 F. App’x
343, 347 (5th Cir. 2011) (per curiam) (unpublished) (“The issue at the pretext
stage is whether [the defendant’s] reason, even if incorrect, was the real reason
for [the plaintiff’s] termination”) (quoting Sandstad v. CB Richard Ellis, Inc.,
309 F.3d 893, 899 (5th Cir. 2002))). To meet this burden, “the plaintiff must
produce substantial evidence of pretext.” Wallace v. Methodist Hosp. Sys., 271
F.3d 212 (5th Cir.) (emphasis added). “Where the plaintiff fails to produce
substantial evidence of pretext, or produces evidence permitting only an
indisputably tenuous inference of pretext, summary judgment in favor of the
defendant is appropriate.” Read v. BT Alex Brown, Inc., 72 App’x 112, 115 (5th
Cir. 2003)
      First, Garcia contends that comments by Penske employees about her
sickness show evidence of pretext. Garcia admits that no one ever expressly
stated to her that her firing occurred because she took leave due to her
sickness.    Instead, Garcia relies on the fact that her supervisor, Mr. Garcia,
and Garcia’s co-workers made comments to management at Penske and Delphi
about Garcia always being sick. Garcia’s argument bears little weight. A
comment constitutes sufficient evidence of retaliation under the FMLA only if
it is: (1) related to the protected class of persons of which the plaintiff is a
member; (2) proximate in time to the complained-of adverse employment
decision; (3) made by an individual with authority over the employment
decision at issue; and (4) related to the employment decision at issue. See
Rubenstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir. 2000).
Comments failing to satisfy these requirements are independently insufficient
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                                 No. 15-40061
to prevent summary judgment. Jackson, 602 F.3d at 380. Mr. Garcia’s and
the co-workers’ comments were not proximate in time to the complained-of
adverse decision. Although Garcia took leave more than two dozen times over
the five years that she made requests under the FMLA, Penske fired Garcia
more than two years after these comments were allegedly made. Garcia also
presented no additional evidence showing that her co-workers’ comments, or
Mr. Garcia’s comments themselves, bore any weight in Penske’s decision to fire
her.   See Weston-Smith v. Cooley Dickinson Hosp., Inc., 282 F.3d 60, 70 (1st
Cir. 2002) (Complaints by a co-worker about a plaintiff’s “lack of accessibility”
caused by her FMLA protected leave do not constitute circumstantial evidence
of discrimination because there is no link between the co-workers’ complaints
and the decision-making process.)      In fact, Mr. Garcia never mentioned
Garcia’s illness or attendance in any of Garcia’s required performance
evaluations.
       Next, Garcia contends that Penske’s directive that she return to work,
instead of working from home, implies some discriminatory animus. She again
has failed to support this argument. The FMLA provides that an employee is
entitled to take leave, not to work from home. Bennett v. Girl Scouts of Ne.
Tex., No. 4:09-CV-443, 2010 WL 723794, at *3 (E.D. Tex. Feb. 25, 2010) (citing
29 U.S.C. § 2612). We have also recognized an employer’s need to have its
employee in the office. See Amsel v. Tex. Water Dev. Bd., 464 F. App’x 395, 400
(5th Cir. 2012). The record makes clear that Penske’s request to have Garcia
work from the office only arose after the start of an ongoing investigation into
an issue raised by Penske’s customer, Delphi.         In fact, despite Garcia’s
recurring absences, Penske continuously approved Garcia’s FMLA leave, after
which she resumed her usual job roles and responsibilities. See Yashenko v.
Harrah’s NC Casino Co., 352 F. Supp. 2d 653, 662 (W.D.N.C. 2005) (finding
that the “fact that the Defendant had historically and regularly granted
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                                   No. 15-40061
Plaintiff medical leave followed by the full restoration of his employment is
evidence that Defendant acted without discriminatory intent” in discharging
the employee). Garcia even admitted that the request that she return to work
did not come as a surprise to her because Penske and Delphi placed her under
greater scrutiny due to the investigation. Although Garcia assumes that her
firing was in fact retaliation, this subjective belief, without more, is insufficient
to cast doubt on Penske’s proffered reason for her termination. Auguster v.
Vermilion Parish Sch. Bd., 249 F.3d 400, 403 (5th Cir. 2001) (“This court has
consistently held that an employee’s subjective belief of discrimination alone is
not sufficient to warrant judicial relief.”) (citations omitted and internal
quotation marks omitted)).
      In sum, Garcia has failed to present evidence that raises a genuine issue
of material fact that retaliation—and not Delphi’s request that she be removed
as a result of Penske’s investigation—was the real reason for her termination.
Therefore, we conclude that the district court correctly granted Penske’s
summary judgment motion as to Garcia’s FMLA claim.
                                         V.
      For the reasons stated herein, the district court’s grant of summary
judgment in favor of Penske is AFFIRMED.




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