     Case: 15-30163      Document: 00513152709         Page: 1    Date Filed: 08/13/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30163                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          August 13, 2015
                                                                           Lyle W. Cayce
                                                                                Clerk
BRENDA L. MCELROY,
              Plaintiff –Appellant,
versus
PHM CORPORATION, Doing Business as Oak Nursing Home,
              Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:13-CV-1348




Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*

       Brenda McElroy appeals a summary judgment on her claims against
PHM Corporation (“PHM”) for employment discrimination under Title VII and
willful violation of the Family and Medical Leave Act of 1993 (“FMLA”).
Reviewing the issues de novo, we agree with the district court that McElroy


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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failed to make out a prima facie case, so we affirm.

                                             I.
       PHM manages two long-term care facilities. In March 2007, McElroy,
who is black, was hired as a van driver at one such facility, The Oaks. Several
months later, she was promoted to a new position as Activities Director 1 with
pay increased from $6.50 to $7.00 per hour.                There, her responsibilities
included planning and supervising activities in the facility’s new unit for resi-
dents with Alzheimer’s disease and dementia, which had about twenty beds.
Over the course of her employment, McElroy received several raises; she made
$8.75 per hour at the time she resigned.

       McElroy also assisted fellow Activities Director Regina White, who is
white, with other residents. White had worked as Activities Director at The
Oaks since November 2005 and was the only person in the department before
McElroy was hired. Her duties included planning and managing activities for
all the facility’s approximately one hundred residents, and she started her posi-
tion at $7.50 per hour. At the time McElroy was hired, White earned $10.00
per hour. Both McElroy and White reported to Megan Terrell as Administrator
for The Oaks, and Terrell, in turn, reported to PHM’s Director of Operations,
Dena LaBorde.

       Beginning in late 2010, McElroy began to suffer from severe bleeding
and cramping related to her menstrual cycle. She took paid time off for two
days in February 2011 to seek treatment. Around noon on March 1, however,
she began experiencing severe symptoms while at work, and she spoke with


       1The parties dispute whether McElroy’s new position was titled Activities Director or
Assistant Activities Director, and there is evidence for both. The summary-judgment stan-
dard requires us to assume that McElroy’s title was the higher one, Activities Director,
though this does not control the outcome. See Hathaway v. Bazany, 507 F.3d 312, 319 (5th
Cir. 2007).
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LaBorde and Terrell and asked Terrell whether she could leave work early to
seek treatment.    Terrell asked her to stay until 3 p.m., and according to
McElroy, Terrell stated that she would not have a job if she left before then.
But when McElroy returned to work in the afternoon, the symptoms worsened,
and she could not reach Terrell to request permission to leave again. Instead,
at about 1:40, she went to Human Resources, wrote a brief resignation letter,
and left to see her doctor.

      A few months later, McElroy filed a charge with the Equal Employment
Opportunity Commission, claiming that PHM had discriminated against her
based on race. She received a notice of right to sue and lodged claims for viola-
tions of Title VII and the FMLA. The district court dismissed the claims on
summary judgment, and McElroy appeals.

                                       II.
      When an employment-discrimination claim is based on circumstantial
evidence, we apply the familiar burden-shifting framework under McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Russell v. McKinney Hosp. Ven-
ture, 235 F.3d 219, 222 (5th Cir. 2000). To establish a prima facie case, a
plaintiff must show that he “(1) is a member of a protected group; (2) was
qualified for the position at issue; (3) was discharged or suffered some adverse
employment action by the employer; and (4) was replaced by someone outside
his protected group or was treated less favorably than other similarly situated
employees outside the protected group.” McCoy v. City of Shreveport, 492 F.3d
551, 556 (5th Cir. 2007).

      McElroy avers two ways in which PHM discriminated against her based
on race. First, she contends that Terrell’s denying her permission to leave work
early on March 1 was an adverse employment action taken on account of race.
Second, she maintains that she was paid less than white employees. The
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district court dismissed both claims because McElroy failed to make out certain
elements of a prima facie case, 2 and we examine each in turn.

                                            A.
      McElroy asserts that Terrell constructively discharged her because of
race when, on March 1, she denied McElroy permission to leave right away and
instead instructed her to stay until 3 p.m. or face termination. In the alterna-
tive, McElroy claims that Terrell’s instruction was a denial of leave. The dis-
trict court dismissed the claim because neither action constitutes an adverse
employment action.

      Adverse employment actions include only “ultimate employment deci-
sions such as hiring, firing, demoting, promoting, granting leave, and compen-
sating.” Thompson v. City of Waco, Tex., 764 F.3d 500, 503 (5th Cir. 2014)
(internal quotation marks omitted). McElroy’s first theory of adverse action
fails because Terrell’s verbal threat to fire McElroy if she left before 3 p.m.,
though perhaps ill advised, does not constitute a constructive discharge. Mere
verbal threats to fire an employee alone do not make working conditions so
intolerable that a reasonable employee would feel forced into involuntary
resignation. 3

       Second, Terrell’s denial of permission to leave work right away on a sin-
gle day does not constitute a denial of a leave request that would qualify as an
adverse employment action. Our court and others have distinguished between
(1) decisions denying an employee’s right to take leave or the amount of leave



       2 No party disputes that McElroy meets the first two elements of a prima facie case:
she is a member of a protected group and was qualified for her position.
       See, e.g., Breaux v. City of Garland, 205 F.3d 150, 159–60 (5th Cir. 2000); Chandler
       3

v. La Quinta Inns, Inc., 264 F. App’x 422, 425 (5th Cir. 2008) (per curiam); Hernandez v.
Johnson, 514 F. App’x 492, 499 (5th Cir. 2013) (per curiam).
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available and (2) decisions affecting the specific date, time, and manner that
leave is taken. Thus, in the context of a retaliation suit, 4 the general denial of
paid leave, or the denial of an extension of unpaid leave, constitutes an adverse
employment action. Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512,
521–23 (5th Cir. 2001). On the other hand, “[a] single denial of leave is not an
adverse employment action when it affects leave on a specific date and time.”
Ogden v. Potter, 397 F. App’x 938, 939 (5th Cir. 2010) (per curiam). 5 A man-
ager’s denial of a request to leave work immediately is similarly not an ulti-
mate employment decision. As a result, McElroy has failed to meet the third
element of a prima facie case for discrimination based on her resignation. 6

                                             B.
       Regarding McElroy’s disparate-pay claim, “To make out a prima facie
case of discrimination in compensation, a plaintiff must show that he was a
member of a protected class and that he was paid less than a non-member for
work requiring substantially the same responsibility.” Taylor v. United Parcel
Serv., Inc., 554 F.3d 510, 522 (5th Cir. 2008). To satisfy the comparator ele-
ment, the plaintiff “must show that his circumstances are nearly identical to
those of a better-paid employee who is not a member of the protected class.”
Id. at 523 (internal quotation marks omitted). The disputed issue on this



       4 Granted, the standards for an adverse employment action under Title VII are dif-
ferent depending on whether the claim is for discrimination or for retaliation. Compare
McCoy, 492 F.3d at 560, with Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006). But because the standard is lower in a retaliation suit, employer actions that fail to
meet that standard apply a fortiori to discrimination claims.
       5 See also Lara v. Kempthorne, 673 F. Supp. 2d 504, 518–19 (S.D. Tex. 2009); Johnson
v. Watkins, 803 F. Supp. 2d 561, 575 (S.D. Miss. 2011); Beltran v. Univ. of Tex. Hous. Health
Sci. Ctr., 837 F. Supp. 2d 635, 643 (S.D. Tex. 2011) (citing cases).
       6Alternatively, the district court correctly concluded that McElroy also failed to show
that other similarly situated employees outside the protected class received more favorable
treatment.
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claim—and the issue on which the district court based its decision—is whether
McElroy has presented an appropriate comparator for her prima facie case.

      McElroy first points to White as a comparator who was paid more.
Though McElroy and White share a number of similarities in their employ-
ment at The Oaks, we agree with the district court that relevant differences
distinguish White’s job and pay level, such that her circumstances were not
“nearly identical” to McElroy’s. The summary-judgment evidence indicates
that Terrell based hiring and pay levels at The Oaks on various factors, includ-
ing the amount of responsibilities, relevant certifications, and previous experi-
ence. McElroy and White did share the same job title and supervisor, and they
engaged in similar types of work with the residents.

      Yet it is undisputed that White was hired over eighteen months before
McElroy to act as the sole Activities Director. Thus, White’s responsibilities to
manage activities for the entire facility upon her initial hire were greater than
McElroy’s, who joined in a new position as a second director, and White had
accrued more experience in the position. White’s wage had reached its maxi-
mum of $10.00 while she was sole director in July 2006, about one year before
McElroy was hired. Finally, though both performed similar duties while work-
ing together, the summary-judgment evidence shows that White had greater
responsibilities. McElroy acknowledges that her role centered on activities for
the dementia unit, where there were only about twenty residents. See Lee v.
Kansas City S. Ry. Co., 574 F.3d 253, 259–61 (5th Cir. 2009). We recently
ruled, in similar cases, that employees are not nearly identical when their posi-
tions require different levels of skill and responsibility—even where they inter-
mittently perform the same job duties. See Fields v. Stephen F. Austin State
Univ., No. 15-40011, 2015 WL 4273272, *1–2 (5th Cir. July 15, 2015) (per
curiam) (unpublished). Similarly, in Jackson v. Honeywell International, Inc.,

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                                         No. 15-30163
601 F. App’x 280, 285 (5th Cir. 2015), we wrote that a plaintiff’s coworkers
were not qualified comparators because, among other reasons, they had been
hired at different times and had different positions. 7

       So too here. Salient differences between McElroy and White make a pay
comparison inapt, so White is not an appropriate comparator for McElroy’s
disparate-pay claim.

       McElroy also claims that she was replaced by a white woman, Sherry
Holmes, who was paid more, and the district court failed to consider that new
employee as a comparator. But though the evidence does show that a new
employee was hired in the activities department nine months after McElroy
resigned, no summary-judgment evidence demonstrates that Holmes was
hired for McElroy’s old position. The only evidence about Holmes, other than
her higher wage of $12.00, is LaBorde’s declaration explaining that Holmes
was hired for an entirely separate position as Environmental Supervisor.
Without any evidence to contradict that, Holmes also cannot qualify as a com-
parator for McElroy’s disparate-pay claim. Consequently, McElroy has failed
to establish an essential element of her prima facie case for disparate pay. See
Lee, 574 F.3d at 259–60; Ramirez v. Gonzales, 225 F. App’x 203, 207–08 (5th
Cir. 2007) (per curiam).

                                               III.
       McElroy maintains that PHM willfully violated the FMLA, 29 U.S.C.
§§ 2612(a), 2615. But this claim too fails because there is an insufficient prima
facie case. 8 First, there is no evidence that McElroy ever requested FMLA


       7See also Minnis v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 55 F.
Supp. 3d 864, 880 (M.D. La. 2014) (citing different hire dates among the reasons making a
comparator inappropriate).
       8   See Bocalbos v. Nat’l W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998) (setting out
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                                      No. 15-30163
leave; her previous absences were deducted from paid time off that she had
earned, and her request to leave work early on March 1 does not legally qualify
as a request for FMLA leave. See Satterfield v. Wal-Mart Stores, Inc., 135 F.3d
973, 980 (5th Cir. 1998). Thus, any action PHM allegedly took was not in
response to an activity protected by the FMLA. Moreover, as discussed earlier,
McElroy cannot show that she suffered an adverse employment action. PHM
did not constructively discharge her by denying her permission to leave work
early, and that action was not a denial of leave otherwise.

       AFFIRMED.




the elements for a prima facie case for discrimination or retaliation under the FMLA).
                                             8
