     Case: 11-30422     Document: 00511649827         Page: 1     Date Filed: 10/31/2011




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

                                                                            FILED
                                                                         October 31, 2011

                                     No. 11-30422                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



LILLIE D. BOOZE KITTLING,

                                                  Plaintiff – Appellant
v.

CENTENNIAL BEAUREGARD CELLULAR, L. L. C., doing business as
Centennial Wireless,

                                                  Defendant – Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                      USDC No. 1:08-CV-01482-DDD-JDK


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Plaintiff–Appellant Lillie D. Booze Kittling brought suit against
Defendant–Appellee Centennial Beauregard Cellular, L.L.C., alleging her
employment was terminated in violation of Title VII of the Civil Rights Act of
1964. Although Plaintiff–Appellant was newly hired and absent from work
between sixteen and eighteen times in just over three months of employment,


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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she asserts that she was terminated for reasons related to her race. The district
court granted summary judgment for Defendant–Appellee, and we affirm.
              I. FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiff–Appellant Lillie D. Booze Kittling (“Plaintiff”), an African-
American woman, was hired by Defendant–Appellee Centennial Beauregard
Cellular, L.L.C. (“Defendant”) on August 14, 2007 to work as a sales
representative.        Upon hiring Plaintiff, Defendant provided her with
documentation explaining its employment policies, including its attendance,
sick-leave, and vacation policies during the employee’s first ninety days (the
“orientation period”), as well as the period that followed. Under Defendant’s
policies, employees risk termination if they exceed two absences during the
orientation period. Plaintiff, however, suffered a number of medical issues early
in her tenure that resulted in fifteen absences during her orientation period.
       Despite Plaintiff’s absences, Defendant did not terminate Plaintiff’s
employment during her orientation period. Shortly after the end of Plaintiff’s
orientation period, however, Plaintiff continued to miss work, and Defendant
decided to terminate her on November 28, 2007. In the roughly three months
Plaintiff was employed by Defendant, Plaintiff had been absent between sixteen
and eighteen days.1 Again, despite Plaintiff’s absences, Defendant indicated it
was willing to rescind Plaintiff’s termination if Plaintiff could produce
documentation demonstrating that all her absences were for medical reasons.
Plaintiff failed to produce documentation for every day she missed and
ultimately ceased communicating with Defendant. Defendant subsequently
terminated Plaintiff’s employment.


       1
         The parties dispute the number of Plaintiff’s absences following the orientation period.
Defendant asserts that Plaintiff missed three days following the orientation period, but
Plaintiff admits to incurring only one unexcused absence during the post-orientation period,
contending she was not scheduled to work the other two days. This disputed issue of fact does
not affect our analysis.

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      After filing an unsuccessful complaint with the Equal Employment
Opportunity Commission, Plaintiff brought suit against Defendant in the United
States District Court for the Western District of Louisiana, asserting claims
under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq. Plaintiff later ceased to assert her claim under the ADA but continued to
allege Defendant violated Title VII. Defendant moved for summary judgment,
arguing that Plaintiff had failed to establish a prima facie case of discrimination
and could not rebut Defendant’s legitimate, nondiscriminatory reason for
terminating Plaintiff—her excessive absences. In response, Plaintiff argued that
Defendant had waived any ability to terminate her for her absences during the
orientation period because Defendant allowed her to continue her employment
beyond her first ninety days. Plaintiff contended that she was terminated for a
single unexcused absence during her post-orientation period, and Plaintiff
argued that Defendant’s attendance policies show that Plaintiff’s termination
reflects disparate and discriminatory treatment because, under her reading of
Defendant’s policies, termination is not properly based on a single absence. The
district court rejected Plaintiff’s arguments and dismissed her suit with
prejudice. Plaintiff now appeals.
                               II. DISCUSSION
      We review the district court’s grant of summary judgment de novo and
apply the same standard as the district court. First Am. Bank v. First Am.
Transp. Title Ins. Co., 585 F.3d 833, 836–37 (5th Cir. 2009). Summary judgment
is proper “if 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). We review the evidence in the light most favorable to the non-
moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). “A genuine issue of material fact exists if a reasonable jury could

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enter a verdict for the non-moving party.” Castellanos–Contreras v. Decatur
Hotels, LLC, 622 F.3d 393, 397 (5th Cir. 2010).
      Under Title VII, “[i]t shall be an unlawful employment practice for an
employer . . . to discharge any individual . . . because of such individual’s
race . . . .” 42 U.S.C. § 2000e-2(a)(1). When there is no direct evidence of
unlawful discrimination, we analyze a plaintiff’s claims under Title VII using the
framework set out by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and refined in subsequent cases. Under McDonnell Douglas, the plaintiff must
carry the initial burden of establishing a prima facie case of racial
discrimination. Id. at 802. A plaintiff may do this by showing (1) she belongs
to a racial minority; (2) she was qualified for the job she held; (3) she was
discharged or suffered some adverse employment action by the employer; and (4)
she was replaced by someone who is not a member of her protected group or was
treated less favorably than similarly situated individuals. See Byers v. Dallas
Morning News, Inc., 209 F.3d 419, 426 (5th Cir. 2000); Okoye v. Univ. of Tex.
Houston Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001).
      When the plaintiff has established its prima facie case, the burden shifts
to the defendant “to articulate some legitimate, nondiscriminatory reason” for
the employee’s termination. See McDonnell Douglas, 411 U.S. at 802. “This
burden is one of production, not persuasion.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000). If the defendant carries this burden, “the
plaintiff must then have an opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.” Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981). “Although intermediate evidentiary burdens
shift back and forth under th[e McDonnell Douglas] framework, ‘[t]he ultimate
burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.’”

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Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253).            Further, “a
plaintiff’s prima facie case, combined with sufficient evidence to find that the
employer’s asserted justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148.
      The district court found that summary judgment was warranted both
because the Plaintiff failed to make a prima facie case of discrimination and did
not rebut Defendant’s legitimate reasons for terminating Plaintiff’s employment.
Kittling v. Centennial Beauregard Cellular, No. 1:08-CV-1482, at 7 (W.D. La.
Mar. 31, 2011). Plaintiff has not presented any direct evidence of unlawful
discrimination, so we analyze whether she has established a prima facie case for
discrimination under the McDonnell Douglas framework discussed above.
Neither party disputes that Plaintiff was a racial minority, that she was
qualified for the job she held, or that she was discharged from employment. The
final element of Plaintiff’s prima facie case, however, is in dispute. Plaintiff has
not alleged, and the evidence does not show, that she was replaced by someone
who was not a member of her protected group.              See id. at 8 (discussing
Defendant’s increased staffing of the type of position formerly held by Plaintiff
with African-American employees following her termination). Thus, our focus
turns to Plaintiff’s evidence that her termination indicates that she was treated
less favorably than similarly situated individuals.
      Defendant’s attendance policy states that “[d]uring an associate’s
orientation period (first 90 days of employment), excessive absenteeism shall be
defined as any absence in excess of 2 working days. Absences in excess of 2
working days during the orientation period will ordinarily result in termination.”
Following the orientation period, “[e]xcessive absenteeism is defined as any
absence in excess of 7 days from January through December 31st,” subject to
exclusions including approved medical leave but not sick days. The policy



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provides for termination on the eleventh absence that is not expressly excluded
from the attendance policy.
      Plaintiff contends that “[D]efendant’s attendance policy allows other
employees similarly situated as [P]laintiff who are not African American . . . to
be treated more favorabl[y] than [P]laintiff.” Although Plaintiff was absent
fifteen times during the first ninety days of her employment and continued to
miss work in the period that followed, Plaintiff contends that she was
terminated for a single unexcused absence. Plaintiff bases this contention on the
fact that she had medical excuses for all but one absence following her
orientation period. Plaintiff concedes that “Defendant had the option to fire
[Plaintiff] during the probationary period,” but asserts that “[Defendant] chose
not to [fire Plaintiff during the orientation period] and, therefore, waived any use
of those absences during the orientation period after [D]efendant made
[P]laintiff a permanent employee.” Firing an employee for a single absence,
Plaintiff argues, is not permitted under Defendant’s attendance policies, which
Defendant should apply equally to all employees. Thus, Plaintiff contends
Defendant’s policies show that similarly situated individuals would be treated
more favorably by Defendant.
      We agree with the district court, however, that Plaintiff’s description of
her termination for a single unexcused medical absence “profoundly
mischaracterizes” the circumstances surrounding Plaintiff’s termination. See id.
at 9. Plaintiff was hired on August 14, 2007, and missed fifteen days of work
during her first ninety days of employment. Defendant’s attendance policy,
however, allowed Plaintiff to miss only two days before termination would be
appropriate. Plaintiff accrued at least one more unexcused absence during the
short interval of time from the end of her orientation period until she was
terminated on November 28, 2007.          Thus, Plaintiff’s suggestion that her



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attendance record should be deemed unblemished but for a single unexcused
absence is simply untenable.
       Like the district court, we also find that Plaintiff has misconstrued
Defendant’s policies related to attendance.              See id. (describing Plaintiff’s
interpretation of Defendant’s policies as a “willful distortion”).                Although
Defendant’s attendance policy deals separately with the orientation period for
new employees and the period that follows, this does not mean that absences
accrued during the orientation period cannot be considered in the term that
follows, particularly in the weeks that immediately follow. See id. at 2 (“Simply
because Defendant did not immediately fire Plaintiff after her first absences and
instead gave her a second chance does not mean those absences were somehow
waived for considering whether to retain Plaintiff in the immediate future.”).
Defendant’s policies nowhere indicate that absences during the orientation
period become irrelevant in the post-orientation period, and thus we find no
support for Plaintiff’s argument that Defendant waived the ability to consider
these absences when assessing whether to terminate Plaintiff’s employment.
       Further, Plaintiff attaches much weight to the fact that she had medical
reasons substantiated by a doctor for many, but not all, of her absences.
Defendant’s policies, however, do not provide that absences due to medical
illness are excused, approved, or otherwise excluded from consideration when
determining whether to terminate an employee. In fact, Defendant’s attendance
policy expressly notes that sick days are considered when assessing
absenteeism.2 Defendant’s policies further provide that “eligibility for sick pay
begins after completion of [the] 90-day orientation period. Thereafter, new



       2
         Defendant’s policy provides that excluded absences are those it voluntarily approves
as well as federally mandated medical leave. These exclusions, however, do not apply to
Plaintiff’s absences. See Kittling, No. 1:08-CV-1482, at 2 (noting that Plaintiff had no legal
right to medical leave).

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                                  No. 11-30422

associates accrue one-half (½) paid sick day for each full month worked during
the first calendar year of employment.” Defendant’s policies further provide that
vacation begins to accrue at the rate of one day per month following the
orientation period. Thus, Plaintiff had not earned sufficient leave to account for
her admitted absence on November 25, 2007.
      An addendum to Defendants attendance policy defines “excessive
absenteeism” after the completion of the orientation period as “any absence in
excess of 7 days from January 1 through December 31st,” subject to exclusions
that do not apply to the instant case. However, we do not interpret this as a
guarantee that Defendant’s employees may be absent for seven days without
risking termination, particularly at the beginning of an employee’s post-
orientation period. As we discussed above, Plaintiff had yet to earn the time off
for the day she admits to missing without excuse. Moreover, Plaintiff completed
her orientation on November 11, 2007, and was absent without excuse for at
least one day before she was terminated November 28, 2007. We cannot read
Defendant’s policies to suggest that even a single absence following Plaintiff’s
orientation period would necessarily be tolerated before it was earned.
Moreover, we find that Defendant’s policies neither state nor imply that an
employee who has missed between sixteen and eighteen days of work in roughly
three months would not be terminated. Thus, Defendant’s policies do not show
that Plaintiff’s termination reflected disparate treatment.
      Because Defendant’s policies do not show that other employees would
receive more favorable treatment than Plaintiff received, the burden remains on
Plaintiff to come forward with evidence of disparate treatment sufficient to make
her prima facie case. We agree with the district court that, when addressing
whether similarly situated individuals were treated more favorably, the proper
comparison is between Plaintiff and individuals with numerous absences, as
opposed to employees with a single unexcused absence, as urged by Plaintiff. As

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the district court noted, “Plaintiff again presents no evidence . . . to show that
any employee who ever missed such a significant period of work – much less so
early in their tenure – was not terminated.” Kittling, No. 1:08-CV-1482, at 9.
Defendant, on the other hand, has offered evidence that a Caucasian employee
was terminated during his orientation period after only four absences. Plaintiff
offers nothing to rebut this or to establish any other evidence of disparate
treatment. Instead, Plaintiff relies exclusively on her misinterpretation of
Defendant’s attendance policies. Thus, we agree with the district court that
Plaintiff has presented no evidence that she suffered from disparate treatment
and has thus failed to establish her prima facie case of discrimination.
                              III. CONCLUSION
      For the reasons stated above, we AFFIRM the judgment of the district
court. Costs shall be borne by Plaintiff.




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