                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                              February 21, 2007
                        FOR THE FIFTH CIRCUIT
                        _____________________              Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-10885
                           Summary Calendar
                        _____________________

KAREN BACON,

                                                Plaintiff - Appellant,

                               versus

EDS,

                                            Defendant - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                       USDC No. 4:05-CV-193
_________________________________________________________________

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

       Karen Bacon sued EDS for retaliatory discrimination under the

Family and Medical Leave Act (“FMLA”).    Finding that Bacon failed

to establish the prima facie case for her FMLA claim, the district

court granted summary judgment in favor of EDS.      We affirm.

                                 I.

       Bacon was employed by Sabre Corporation in 1993 as a project

librarian. In 1999, she transferred to a position in voice network

services (“VNS”) where she installed and supported electronic voice

mailboxes for other employees, under the supervision of Lorinda

       *
      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this opinion should not be published and is not precedent except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.
Crawford.   In the spring of 2001, Bacon received a merit raise and

a promotion based on her performance in VNS, as well as an award

for solving a difficult voice mailbox problem. During the time she

was employed by Sabre, Bacon never received training in any VNS

function other than the installation and support of mailboxes.

     In July 2001, EDS bought Sabre and Bacon became an EDS

employee.   Bacon requested permission to work from home, and was

told by her manager Patrick Burke that such a move could limit her

professional development by “pigeonholing” her.   Bacon told Burke

she was already “pigeonholed” in her current position. Her request

to work from home was subsequently approved by Steve Hallowell,

Burke’s manager.

     Shortly thereafter, in August 2001, Bacon was injured in a car

accident.   She requested and was granted five days of leave, as

well as time to pursue physical therapy.   In September 2001, Bacon

suffered a heart attack.    She requested and received four days of

leave to recover.

     In September 2001, EDS began to plan a reduction-in-force

(“RIF”).    Burke was instructed to rank the members of his group

according to their value.   With input from Crawford, Burke drafted

an email to Hallowell ranking the seventeen employees under his

supervision.   Burke assigned the lowest ranking to Sharon Wildin-

Dunn, an administrative assistant who had recently joined the team,

explaining that her work could be performed by other team members,



                                  2
if necessary.    Burke ranked Bacon sixteenth because, he explained,

her skill set was limited to voice mail.

     On October 16, 2001, Bacon cut her ankle and requested leave

to recover.    While on leave for the leg injury, she severed tendons

in her hand.    She requested several leave extensions, all of which

were granted.    She ultimately returned to work on December 21.   On

October 28, while Bacon was on leave, EDS implemented an RIF,

terminating Sharon Wildin-Dunn and three other VNS employees who

did not report to Burke.

     When Bacon returned from leave, she began working from home.

In January 2002, EDS decided to conduct a second RIF, resulting in

the termination of over one hundred employees.         Hallowell was

instructed to eliminate four additional positions from the VNS

group. After consulting with Burke as to the continued accuracy of

the September 26, 2001 ranking, Hallowell decided to eliminate

Bacon’s position, along with three positions in other groups.

Bacon was terminated on January 30, 2002 and her workload was

reassigned to Melanie Ainsworth, who had previously shared voice

mail support duties with Bacon.          Bacon filed suit alleging

retaliatory discrimination under the FMLA.     EDS filed a motion for

summary judgment, which the district court granted.     Bacon timely

appealed.

                                 II.

     We review the district court’s grant of summary judgment de

novo. Summary judgment is appropriate when the record demonstrates

                                   3
that “there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c).             “We construe all facts and inferences in

the light most favorable to the nonmoving party ....”                Cooper Tire

& Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005) (internal

quotation omitted). A plaintiff “must present affirmative evidence

in   order   to    defeat      a   properly    supported   motion    for    summary

judgment,”        Anderson v. Liberty Lobby Inc., 477 U.S. 242, 257

(1986), which “requires that a plaintiff ‘make a showing sufficient

to establish the existence of an[y] element essential to that

party’s case, and on which the party will bear the burden of proof

at trial.’”       Nowlin v. Resolution Trust Corp., 33 F.3d 498, 501

(5th Cir. 1994) (quoting Celotex v. Catrett, 477 U.S. 317, 322-23

(1986)).

                                        III.

      To establish a prima facie case of retaliation, Bacon must

demonstrate       that   she   was    protected   under    the   FMLA;     that   she

suffered     an   adverse      employment     action,   and   that   the    adverse

employment action was taken because she sought protection under the

FMLA.   Hunt v. Rapides, Healthcare Sys., 277 F.3d 757, 768 (5th

Cir. 2001).       There is no dispute that the first two prongs of the

prima facie case have been met.               In determining whether a causal

link has been shown, we have found three factors helpful: (1) the

extent of the employee’s disciplinary record; (2) whether the

employer followed its policies and procedures in dismissing the

                                          4
employee; and (3) the temporal relationship between the protected

action and the termination.       Nowlin, 33 F.3d at 508.          To support

her prima facie case, Bacon presented evidence that her low ranking

and termination occurred within close temporal proximity to her

second and third FMLA leaves, that Crawford’s attitude toward her

changed after she began to take FMLA leave, and that EDS failed to

follow its regular procedures in ranking the employees for the RIF.

      As the district court concluded, Bacon’s claim fails because

she cannot present evidence that her termination was causally

linked to her medical leaves of absence.              Bacon alleges that

Crawford’s resentment toward her for taking leave in September and

October motivated the low ranking Bacon received in September 2001.

Bacon’s only evidence of Crawford’s alleged change in attitude is

her own declaration of January 11, 2005, in which she said that

Crawford’s “inflection, tone of voice and attitude was cold, heavy

and distant as opposed what had been warm, light and friendlier

before.”     The   scant   strength   of   this   evidence    of   animus   is

dissipated by Bacon’s deposition testimony of August 29, 2005, in

which she stated that she “got along well” with Crawford, that

Crawford was “concerned” about her after her accident, and that

Crawford worked with her to adjust her schedule so that Bacon could

attend physical therapy.       Despite Bacon’s attempt to reconcile her

two accounts, she can point to no place in her deposition testimony

in   which   she   testified   that   Crawford    displayed   any    sort   of



                                      5
hostility to her after her leaves.** A party cannot “raise an issue

of fact simply by submitting an affidavit contradicting [her] own

prior testimony ....”       Doe v. Dallas Indep. Sch. Dist., 220 F.3d

380, 386 (5th Cir. 2000) (citations omitted).

     Bacon’s allegation that EDS failed to follow its regular

policies and procedures is also unsubstantiated by the evidence she

produced at      summary   judgment.       To   support   this   claim,   Bacon

introduced excerpts from the “EDS Leaders’ Guide” and other related

documents, which we have reviewed under seal.               Bacon does not,

however, make any specific allegations as to how EDS violated this

protocol with respect to her termination.           After reviewing the EDS

materials, we agree with the district court’s conclusion that the

“guidelines are nonbinding and, as can be determined from the

summary judgment evidence, were substantially followed by Crawford

and Burke.”

     This leaves only the temporal proximity between Bacon’s FMLA

leaves of absence and her ranking and termination as support for

her claim of a causal link.      Temporal proximity is a “significant,

although   not     necessarily   determinative,       factor”     in   finding


     **
         Bacon did complain in her deposition that Crawford was
displeased that Bacon was unable to return to work after her final
hand injury.   She admits, however, that she was not forced to
return to work and that she was granted the leave time she needed
to recover. Additionally, this injury did not occur until October
2001, after the September 2001 ranking was already completed.
Therefore any alleged hostility that Crawford demonstrated after
the final leave was not causally related to the low ranking that
resulted in her termination.

                                       6
causation.   Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092

(5th Cir. 1995).     In this case, however, it is insufficient

because the sequence of events preceding Bacon’s termination does

not give rise to any inference that it was linked to her FMLA

leave.

     In August and September of 2001, Bacon requested and received

two leaves of absence from EDS.       In September 2001, while on her

second leave, Bacon received a low ranking in the RIF planning.

This low ranking was based on Bacon’s limited skill set, a concern

of which she had previously been made aware.          Bacon alleges,

however, that this low ranking was given in retaliation for her use

of FMLA leave.   She was not, however, terminated on the basis of

this ranking despite the fact that she was on her third leave at

the time that the first RIF was conducted.      In fact, in the email

Burke sent to Hallowell ranking his team, he drew a line below

Bacon and above Wildin-Dunn to indicate that he did not wish to

eliminate Bacon and “would struggle” if forced to do so.

     Bacon’s employment thus continued through her third leave of

absence, which was extended due to a fourth injury.         When she

returned from leave in early January, she was permitted to work

from home as she had previously requested.     She was then laid off,

based on the September 2001 ranking, as part of a second RIF in

which more than one hundred workers were laid off, including four

in the VNS group.     She was not replaced.        Bacon provides no

coherent explanation of how this series of events demonstrates any

                                  7
link between her FMLA leave and her ultimate termination. We agree

with the district court’s conclusion that the “mere fact that

Bacon’s FMLA leave coincided with a reduction in force does not

prove, even prima facie, a case of retaliation.”    Because Bacon

cannot make out the causation prong of her prima facie case, her

retaliation claim fails.

                               IV.

For the foregoing reasons, the judgment of the district court is

                                                        AFFIRMED.




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