     Case: 15-30851       Document: 00513429736        Page: 1    Date Filed: 03/18/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30851                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          March 18, 2016
AMY SMITH,                                                                 Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellant

v.

TOURO INFIRMARY; LARRY ANDERSON,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-2689


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Amy Smith (“Smith”) sued her employer Touro
Infirmary     (“Touro”)    and    her    immediate      supervisor     Larry        Anderson
(“Anderson”), alleging sex discrimination and retaliation under Title VII as
amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e-3(a) (“Title VII”)
and interference and retaliation under the Family Medical Leave Act,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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29 U.S.C. § 2601 et seq. (the “FMLA”). The district court dismissed Smith’s
claim on summary judgment. Smith timely appealed her Title VII hostile work
environment claim and her FMLA retaliation claim.           After reviewing the
parties’ briefing, the record, and the applicable law, we find no reversible error
and AFFIRM.
                               BACKGROUND
      Smith started working for Touro in 2008 as a respiratory therapist.
Anderson was Smith’s direct supervisor. Smith claims that Anderson sexually
harassed her and created a sexually charged working environment, where
sexual favors were the common currency of the workplace. According to Smith,
the female respiratory therapists that participated in Anderson’s sexually
driven workplace economy were favored over female workers who were not part
of Anderson’s “harem.” For instance, women who condoned Anderson’s ways
were exempt from showing up on time and being ready to work.
      Smith alleges that male and female coworkers complained about
Anderson’s favoritism, but that only the women opposing Anderson’s conduct
were subjected to heightened scrutiny, degrading comments, and humiliation.
For example, Anderson allegedly wrote up Smith for being late and displayed
the disciplinary documentation on a public board. Smith adds that Anderson
used a chauvinistic tone and vulgar language with her.
      Smith also asserts that she was terminated while she was on FMLA
leave. Smith points out that she was terminated despite abiding by Touro’s
leave policy, which required her to report monthly during the leave period and
to provide additional medical documentation if further leave was needed.
      Before suing Touro, Smith filed a discrimination charge with the Equal
Employment Opportunity Commission (the “EEOC”). At the request of Smith’s
counsel, the EEOC issued Smith a right-to-sue letter. Smith sued Touro and


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Anderson. The district court dismissed Smith’s case on summary judgment.
Smith timely appealed.
                          STANDARD OF REVIEW
      A district court’s grant of summary judgment is reviewed de novo on
appeal. Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631, 635 (5th
Cir. 2002). Summary judgment is proper when there is no genuine issue as to
any material fact. Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech.
Coll., 719 F.3d 356, 362 (5th Cir. 2013). The court “may affirm summary
judgment on any legal ground raised below, even if it was not the basis for the
district court’s decision.”   Performance Autoplex II Ltd. v. Mid-Continent
Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003).
                                DISCUSSION
      Smith only appeals her FMLA retaliation and Title VII hostile work
environment claims. Specifically, Smith asserts that the district court erred
by finding that Smith did not suffer a materially adverse employment action
under the FMLA or Title VII.
         A. FMLA Retaliation Claim Against Touro
      The district court found that Smith failed to establish a prima facie case
of FMLA retaliation. The FMLA requires a covered employer to allow an
eligible employee up to twelve weeks of unpaid leave a year if the employee
suffers from a serious health condition that makes the employee unable to
perform the functions of her job. 29 C.F.R. § 825.200(b) (2013). The FMLA
also prohibits penalizing an employee for exercising her FMLA rights.
29 C.F.R. § 825.220 (2013).
      In order to establish a prima facie case of FMLA retaliation, Smith has
to first demonstrate that: (1) she was protected under the FMLA, (2) she
suffered an adverse employment action, and (3) she either was treated less
favorably than a similarly situated employee who had not requested leave or
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                                   No. 15-30851
the adverse decision was made because she took FMLA leave. Hunt v. Rapides
Healthcare System, LLC, 277 F.3d 757, 768 (5th Cir. 2001).
        The district court held that Smith failed to satisfy the third prima facie
element—an adverse employment action—because she failed to show a
connection between her termination and her FMLA leave. The district court
found that Smith’s termination occurred approximately a month after she
exhausted her FMLA leave and after she failed to contact Touro or return to
work.
        On appeal, Smith contends that she was terminated while on FMLA
leave. Smith asserts that she had five weeks of FMLA leave left when she last
contacted Touro on August 25, 2014, to update her need for FMLA leave. And
she argues that this was sufficient to satisfy Touro’s policy of monthly
reporting for employees on leave. Therefore, the next deadline to report was
not until September 25, 2014.           Smith, however, was terminated on
September 22, 2014. Smith asserts that her termination while on leave, and
while complying with Touro’s leave policy, constitutes an adverse employment
action.
        In rebuttal, Touro first points out that Smith misstates the facts because
her twelve weeks of FMLA leave ended on August 28. Touro contends that
Smith took leave on May 21, and returned to work on June 25. She again went
on leave on July 25. Her last approved leave was supposed to end on August
28.     On August 25, Smith contacted Touro about providing medical
documentation to excuse absences on August 23 and 24. After the medical
documentation was provided, Touro called Smith several times at the number
on file to inquire about her medical status and her plans to return to work.
Smith never called back.
        On August 29, Touro sent Smith a letter to the address on record, stating
that her FMLA leave had been exhausted on August 28, and that if Smith was
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not medically cleared to resume her job, she needed to provide by September
8, a medical statement on her current medical condition, as well as the date
when she anticipated to be back at work. On September 11, Touro sent a
second letter, asking Smith to respond by September 19, otherwise, Touro
would proceed with a voluntary resignation. Smith never contacted Touro
after August 25. Touro contends that Smith was terminated for failing to
establish contact after her leave ended, or stated differently, for abandoning
her job. Therefore, Touro asserts that the district court correctly found that
Smith was not terminated for taking FMLA leave because there was no link
between her termination and her protected activity.
      Smith fails to plead a prima facie case of FMLA retaliation. Smith’s only
argument on appeal is that she suffered an adverse employment action because
she was terminated while she was on FMLA leave. But she was not. It is
puzzling to the court how Touro calculates Smith’s twelve weeks of FMLA leave
as ending on August 28. Just as puzzling is how Smith comes up with five
weeks of leave remaining on August 25. Based on the record, Smith had about
two weeks of FMLA leave left on August 25, because her previous leaves in the
last twelve months amount to about ten weeks (May 21 to June 25, 2014;
July 25 to August 28, 2014). Thus, Smith had about two weeks of FMLA leave
left on the date she last contacted Touro.
      It is unclear, however, how much leave time was approved when Smith
took leave on July 25, 2014. What the record does make clear is that Touro
was under the impression Smith had exhausted her FMLA leave on August 28,
and by September 22, 2014 (termination date), Touro had left several phone
messages for Smith asking her to contact Human Resources (“HR”) to discuss
her medical status and her plans to return to work.
      Further, Touro sent Smith two written notices informing her that she
needed to provide a medical statement if she was not cleared to return to work.
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The first notice had a reply date of September 8, 2014, and the second notice
had a reply date of September 19, 2014.             Additionally, the second notice
indicated that if Smith did not contact Touro by the reply date, Touro would
proceed with a voluntary resignation. Touro did just that on September 22,
approximately four weeks after Smith was first asked to contact Touro about
her medical status and her intent to return to work. Smith did not respond to
Touro’s requests for contact and additional medical information.                    After
abandoning her job, Smith cannot now assert that she was terminated while,
and because, she was on FMLA leave.
      Even if Touro was mistaken about Smith’s twelve weeks being
exhausted, there is no evidence that Smith remained on approved leave after
August 28. 1 Moreover, if the two weeks of FMLA leave that Smith apparently
had left were added to the August 28 date, her FMLA leave would have been
exhausted on September 11. Smith was not terminated until September 22,
well after she had been notified in writing to contact HR in regard to her leave
status. In sum, Smith was not terminated while taking FMLA leave, no matter
how her leave is calculated.
      Finally,    because     Smith’s    FMLA      leave    would    have    ended     on
September 11, at the latest, she did not have until September 25, to make her
next monthly contact with her employer. The documentation Smith provided
on August 25, was related to excusing past absences, not extending her leave
past August 28 or September 11. Because Smith’s argument on appeal is based




      1 Antidiscrimination laws do not require an employer to make perfect decisions, only
decisions that are not motivated by discriminatory animus. LeMaire v. La. Dep’t of Transp.
& Dev., 480 F.3d 383, 391 (5th Cir. 2007).

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                                    No. 15-30851
on misstated facts, and because we find no reversible error by the district court,
we affirm. 2
          B. Hostile Work Environment Claim
      The district court dismissed Smith’s claim because the evidence did not
create a fact issue as to the third element of her prima facie hostile work
environment claim—that the alleged harassment was based on sex. In order
to establish a prima facie case of hostile work environment, the plaintiff must
show that “1) she belongs to a protected class; 2) she was subjected to
unwelcome sexual harassment; 3) the harassment was based on sex; 4) the
harassment affected a term, condition or privilege of employment; and 5) the
employer knew or should have known of the harassment and failed to take
remedial action.” Septimus v. Univ. of Hous., 399 F.3d 601, 611 (5th Cir. 2005).
      In order to affect a term, condition, or privilege of employment, the
harassment complained of must be sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment.     Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th
Cir. 2012). To determine whether conduct is severe or pervasive, courts look
to the totality of the circumstances. Stewart v. Miss. Transp. Com’n, 586 F.3d
321, 330 (5th Cir. 2009).        Relevant factors include “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993).




      2 Smith also proffers a “mixed motive” argument in support of her FMLA retaliation
claim. Because Smith did not establish a prima facie case, we need not address her “mixed
motive” pretextual argument. Further, because Smith failed to brief any claim regarding
Anderson’s liability until her Reply Brief, she was waived it.

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                                     No. 15-30851
      Touro asserts that Smith fails to establish the fourth element of her
prima facie case—that the harassment affected a term or condition of her
employment.       Citing to the record, Touro contends that the heightened
scrutiny, degrading comments, and the humiliation that Smith complains of
are not sufficiently severe or pervasive. Smith’s work week and weekend
schedules never changed during her employment period; neither did her hours
change. Smith was also able to work as the therapist-in-charge of her shift.
Additionally, Smith was not denied any overtime request, promotion, or pay
raises while working for Touro. Therefore, Touro contends that the alleged
hostile environment did not interfere with, or in any way affect, Smith’s ability
to work at Touro.
      We agree that Smith failed to establish that the alleged harassment
affected a term or condition of her employment. Our review of the record
confirms that during the approximately six years of alleged harassment,
Smith’s schedule and hours never changed, that she received the overtime she
requested, that she kept her therapist-in-charge position during her
employment, and that she was never denied a promotion or raise. Therefore,
the alleged harassment and hostile environment created by Anderson’s
behavior with other therapists was not the kind that interfered unreasonably
with Smith’s job performance or destroyed her opportunity to succeed in her
job. See Stewart, 586 F.3d at 331. Tellingly, Smith fails to address this issue
at all in her Reply Brief. See Fed. R. Civ. P. 56(c)(1); Ragas v. Tenn. Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (a court has no duty to search
the record for evidence of material issues of fact). Accordingly, we affirm the
district court’s dismissal of Smith’s hostile work environment claim. 3


      3 Because we find that Smith failed to establish that the alleged harassment affected
a term or condition of her employment, we do not reach the parties’ arguments on disparate
treatment based on sex.
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         C. Attorneys’ Fees
      Touro and Anderson assert that Smith’s appeal is frivolous and ask this
court to award attorneys’ fees and costs. Touro filed a motion for attorneys’
fees in the district court that has yet to be ruled upon, while Anderson seeks
fees in his brief to this court. Because the attorneys’ fees issue is still pending
in the district court, we defer to the trial court for both parties’ requests.
                                 CONCLUSION
      For the above stated reasons, we AFFIRM the judgment but decline to
rule on the fees requests.




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