     Case: 15-20390   Document: 00513474632     Page: 1   Date Filed: 04/21/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                 No. 15-20390                            FILED
                                                                     April 21, 2016

RAYMOND ALBERT RODRIGUEZ,                                           Lyle W. Cayce
                                                                         Clerk
             Plaintiff - Appellant

v.

ELI LILLY AND COMPANY; LILLY USA, L.L.C.; JULIA DAWN RAMOS,

             Defendants - Appellees




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


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Raymond Rodriguez challenges summary judgment for Eli Lilly. The
district court found that Eli Lilly did not retaliate against Rodriguez under the
Federal Medical Leave Act (“FMLA”) when it terminated Rodriguez. It also
found that his termination was not discrimination under the Americans with
Disabilities Act (“ADA”).   Because Rodriguez cannot show that Eli Lilly’s
legitimate reasons for termination following the investigation were pretext for
discrimination or retaliation, we AFFIRM.
                                       I.
      Raymond Rodriguez was employed by Eli Lilly from 2000 to 2013,
working as a pharmaceutical sales representative from June 2012 to October
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2013. During his tenure as a sales representative, Rodriguez was diagnosed
with post-traumatic stress disorder (“PTSD”). 1
       Thomas Bills, one of Eli Lilly’s Senior District Sales Managers, was
Rodriguez’s supervisor. Bills reported that Rodriguez’s performance during
his first twelve months as a sales representative was “nothing short of
miraculous,” and that he excelled in his position. On July 1, 2013, Julia Ramos
became Rodriguez’s supervisor. When Bills and Ramos learned of the transfer
in April 2013, they discussed Rodriguez’s PTSD. Ramos expressed concern
about working with Rodriguez because she knew that Bills and Rodriguez had
an arrangement where Rodriguez would call Bills anytime he became
frustrated, which was a symptom of his PTSD. During his deposition, Bills
testified that Ramos said “I don’t know if I can handle [Rodriguez].”
       After Rodriguez was transferred to Ramos’s supervision, Rodriguez
became Syreeta Barrett’s territory sales partner. On August 31, 2013, Barrett
emailed Ramos expressing several concerns about Rodriguez. Barrett noted
that Rodriguez “attempted to bully [her] into doing unethical/non compliant
actions.” These actions included falsely reporting doctor visits and not properly
recording who attended reimbursed meals. Barrett also noted that Rodriguez
encouraged her to ignore her TempTale monitor. 2 After receiving Barrett’s
email, Eli Lilly began a formal investigation into these allegations.
       Melissa Popa, the human resources consultant responsible for the
investigation, verified many of Barrett’s allegations.              She discovered that
Rodriguez recently recorded a visit with a doctor that did not occur, ignored



       1 Rodriguez served in the Marine Corps from 1989 to 1995 and has served in the Army
National Guard since 2006, deploying to Iraq from March 2008 to February 2009 and
Afghanistan from June 2009 to July 2010.
       2 Sales representatives that sold Humalog, an insulin product, were required to

refrigerate the product and verify twice a day that it was kept at the appropriate temperature
by checking TempTale monitors.
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                                       No. 15-20390
several TempTale monitor alarms, and failed to accurately report how many
participants attended three reimbursed lunches. During the investigation,
Rodriguez stated that he checked the TempTale alarm every day and that the
alarm had not gone off. Rodriguez also testified that he understood company
policies regarding expensing meals.               After being confronted about the
inaccurate report of the doctor’s visit, Rodriguez stated that it was a clerical
error. On October 4, 2013, Ramos reported to Human Resources that she was
concerned that Rodriguez was unstable.               Following the conclusion of the
investigation, Eli Lilly terminated Rodriguez’s employment on October 17,
2013.
        Sometime between September 18, 2013 and October 17, 2013, Rodriguez
applied for leave under the FMLA after a visit to the emergency room. He
received notice that his application was approved on October 17, 2013, the day
he was terminated.
        Rodriguez sued in April 2014, asserting a retaliation claim under the
FMLA, 29 U.S.C. § 2601, et seq. He later amended his complaint to include
discrimination and retaliation claims under the ADA, 42 U.S.C. § 12101, et seq.
Eli Lilly filed a motion for summary judgment. The district court granted Eli
Lilly’s motion and dismissed each claim, finding that Rodriguez did not
establish a causal link between his termination and his PTSD, and that
Rodriguez had not shown that Eli Lilly’s legitimate business reasons for his
termination were pretext for discrimination or retaliation.                      Rodriguez
appealed, challenging only the dismissal of his discrimination claim under the
ADA and his retaliation claim under the FMLA. 3


        3The district court also dismissed Rodriguez’s retaliation claim under the ADA and
his claim of interference with his FMLA rights. Rodriguez did not brief these claims on
appeal, and as a result, they are waived. Audler v. CBC Innovis Inc., 519 F.3d 239, 255 (5th
Cir. 2008) (holding that a party waives an argument on appeal if it “fails to adequately brief
it”).
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                                      No. 15-20390
                                            II.
                               A. Standard of Review
       We review summary judgment de novo, applying the same standard as
the district court. Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010). Summary
judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). When reviewing summary judgment, we
must consider all of the evidence in the light most favorable to the non-moving
party, Rodriguez. Kemp, 610 F.3d at 234.
                          B. ADA Discrimination Claim
       The ADA prohibits employers from discriminating against an employee
on the basis of a disability as defined by the Act. 42 U.S.C. § 12112 (2009). “In
a discriminatory-termination action under the ADA, the employee may either
present direct evidence that she was discriminated against because of her
disability or alternatively proceed under the burden-shifting analysis first
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” EEOC
v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014). 4 Rodriguez challenges the
district court’s determination that he did not present direct evidence of
discrimination or satisfy the requirements of McDonnel Douglas.
                                   1. Direct Evidence
       Rodriguez argues that the district court incorrectly held that the
conversation between Ramos and Bills regarding his PTSD was not direct
evidence of discrimination.         “Where a plaintiff offers remarks as direct
evidence, we apply a four-part test to determine whether they are sufficient to



       4  The district court found that under the ADA Amendments Act of 2008, Rodriguez
was disabled because he presented evidence that his PTSD “substantially limited major life
activities in comparison to the general population.” The parties do not contest this finding
on appeal.
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                                  No. 15-20390
overcome summary judgment.” Reed v. Neopost USA, Inc., 701 F.3d 434, 441
(5th Cir. 2012) (citing Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir.
1996)). To qualify as direct evidence of discrimination, workplace comments
“must be ‘1) related [to the protected class of persons of which the plaintiff is a
member]; 2) proximate in time to the terminations; 3) made by an individual
with authority over the employment decision at issue; and 4) related to the
employment decision at issue.’” Auguster v. Vermilion Par. Sch. Bd., 249 F.3d
400, 405 (5th Cir. 2001) (alterations in original) (quoting Krystek v. Univ. of S.
Miss., 164 F.3d 251, 256 (5th Cir. 1999)).
      During Ramos’s conversation with Bills, Ramos expressed concern about
supervising Rodriguez because of the arrangement Bills and Rodriguez had
regarding the symptoms of his PTSD. This conversation was likely about his
disability and was made by employees that had authority to terminate
Rodriguez. However, the conversation was not proximate in time or related to
Rodriguez’s termination.     The conversation occurred when Ramos became
aware of Rodriguez’s transfer, in April 2013. Rodriguez was terminated in
October 2013. This court has discounted isolated remarks made within as little
as four months of an employment decision. See Berquist v. Wash. Mut. Bank,
500 F.3d 344, 351–52 (5th Cir. 2007) (six months); Jones v. Overnite Transp.
Co., 212 F. App’x 268, 273–74 (5th Cir. 2006) (four months).
      Rodriguez also argues that Ramos’s remark that she believed he was
unstable “closes the temporal gap” between the Ramos/Bills conversation and
his termination. Rodriguez did not show that this comment was causally
related to his termination. Further, this evidence does not qualify as direct
evidence under this court’s case law. We have defined direct evidence as
“evidence that, if believed, proves the fact of discriminatory animus without
inference or presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,
897 (5th Cir. 2002). The conversation between Ramos and Bills and Ramos’s
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                                  No. 15-20390
remarks regarding Rodriguez’s stability cannot meet this standard and
therefore cannot be considered direct evidence of Ramos’s discriminatory
animus. See also Jones, 212 F. App’x. at 274 (“The need to infer or presume
the causal connection means that the statements are not direct evidence of
intentional race discrimination.”). Moreover, even if Ramos’s comment and the
conversation between Ramos and Bills were direct evidence of discrimination,
this evidence is “insignificant in comparison to the evidence of” Eli Lilly’s
legitimate reasons for his termination, and “thus is insufficient, on its own, to
establish discrimination.” Auguster, 249 F.3d at 405.
                     2. McDonnell Douglas Burden Shifting
      Rodriguez next argues that even if there was no direct evidence of
discrimination due to disability, he created a genuine dispute of fact under
McDonnell Douglas. Under McDonnell Douglas, Rodriguez must prove (1) he
had a disability, (2) he was qualified for the job, and (3) there was a causal
connection between an adverse employment action and his disability. LHC
Grp., 773 F.3d at 697. If Rodriguez meets this burden, Eli Lilly can rebut the
presumption of discrimination by articulating legitimate business reasons for
the adverse action. Id. at 701. Finally, if Eli Lilly provides a legitimate reason,
Rodriguez must offer evidence to show that reason was pretext for
discrimination. Id. at 702. “To carry this burden, the plaintiff must rebut each
nondiscriminatory . . . reason articulated by the employer.” McCoy v. City of
Shreveport, 492 F.3d 551, 557 (5th Cir. 2007).
      The parties do not contest the first and second elements of the McDonnell
Douglas prima facie case on appeal. However, the parties do dispute whether
Rodriguez established a causal connection between his PTSD and his
termination. Even if the evidence presented by Rodriguez was enough to show
a causal connection, Rodriguez’s claim fails because he cannot show that the


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                                 No. 15-20390
legitimate reasons Eli Lilly presented for his termination were pretext for
discrimination.
      Eli Lilly presented at least five reasons for Rodriguez’s termination:
(1) he recorded a sales visit to a physician that did not occur, (2) he violated
the business meal policy by expensing for more attendees than were recorded
in sign-in sheets, (3) he failed to monitor the TempTale device and report
alarms, (4) he was untruthful about these violations during the investigation,
and (5) Barrett reported that he encouraged her to violate these policies in a
similar manner. “At summary judgment, ‘[e]vidence demonstrating that the
employer’s explanation is false or unworthy of credence, taken together with
the plaintiff’s prima facie case, is likely to support an inference of
discrimination even without further evidence of defendant’s true motive.’”
LHC Grp., 773 F.3d at 702 (alteration in original) (quoting Laxton v. Gap Inc.,
333 F.3d 572, 578 (5th Cir. 2003)).
      Taking the evidence in the light most favorable to Rodriguez, there may
have been a dispute of fact as to whether his violation of the business meal
policy and his failing to monitor the TempTale alarm alone were worthy of
credence.   Bills testified that he had never written up a representative
regarding the failure to properly expense meals. In addition, Bills testified
that there were frustrations with the TempTale monitors and that he had
previously “advised some of the HR people that, you know, we can’t discipline
anybody off of the Temp-Tell [sic] because it’s so bad and we haven’t distributed
it to the entire sales force.” Although Rodriguez presented evidence that may
have called the credence of these reasons into question, Rodriguez did not
present any evidence that suggested he did not violate both policies. He also
testified that he understood each policy and was properly trained on them.
      In addition, Rodriguez did not contest Eli Lilly’s finding that he recorded
a sales visit with a physician that did not occur. Instead, he claimed that it
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                                 No. 15-20390
was simply a clerical error. Most surprisingly, Rodriguez did not present any
evidence contradicting Barrett’s email to Ramos in which she alleged that he
encouraged her to falsify call records and to not monitor her TempTale alarms.
In fact, he did not mention this reason or incident in his briefs to either this
court or the district court. In addition, Rodriguez did not contest Eli Lilly’s
allegation that he was untruthful during the investigation. Eli Lilly presented
evidence that Rodriguez stated that he “checked the TempTale monitor every
day and that it had not gone off.”      However, the record shows that this
statement was untruthful because the alarm had gone off at least twice.
Because Rodriguez did not contest at least two of the five business reasons for
his termination and did not provide evidence showing any of the five reasons
were false, Rodriguez did not establish a genuine dispute of material fact as to
whether these reasons were pretext for discrimination due to his PTSD. See
McCoy, 492 F.3d at 557.
                        C. FMLA Retaliation Claim
      Rodriguez also contests summary judgment for Eli Lilly on his FMLA
retaliation claim.   The FMLA prohibits employers from acting against an
employee for taking or attempting to take leave under the Act. 29 U.S.C.
§ 2615(a)(1). This court also analyzes FMLA retaliation claims under the
McDonnell Douglas burden-shifting framework. Wheat v. Fl. Par. Juvenile
Justice Comm’n, 811 F.3d 702, 705 (5th Cir. 2016). The parties do not contest
the first two elements of the prima facie case; Rodriguez engaged in a protected
activity by requesting leave under the FMLA, and Eli Lilly terminated him
soon after that request.   However, the parties do contest the causal link
between the two events. Again, even if this evidence presented by Rodriguez,
including the proximity in time between the two events, is enough to conclude
that the “the protected activity and the adverse employment action are not
completely unrelated,” Mauder v. Metro. Transit Auth. of Harris Cty., 446 F.3d
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                                  No. 15-20390
574, 583 (5th Cir. 2006), Rodriguez cannot show that the same five reasons for
termination proffered by Eli Lilly were pretext for retaliation.       The same
analysis for pretext applies to his FMLA claim as was presented above in
regard to his ADA claim. As a result, Rodriguez did not create a genuine
dispute of material fact as to whether Eli Lilly terminated him in retaliation
for his request for FMLA leave.
                                      III.
      For the foregoing reasons, we affirm summary judgment for Eli Lilly.




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