                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                     REVISED JANUARY 26, 2006
                                                            December 21, 2005
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                 Clerk

                           No. 05-10346



PAMELA RICHARDSON

                                             Plaintiff - Appellant
versus


MONITRONICS INTERNATIONAL, INC.

                                                Defendant - Appellee


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



Before REAVLEY, DAVIS and WIENER, Circuit Judges.

WIENER, Circuit Judge:

     Plaintiff-Appellant Pamela Richardson sued Defendant-Appellee

Monitronics International, Inc. (“Monitronics”), alleging that she

was fired in retaliation for exercising her rights under the Family

and Medical Leave Act (“FMLA”).1   The parties consented to a trial

before a magistrate judge, who eventually granted Monitronics’s

motion for summary judgment and dismissed Richardson’s action.        We

affirm.




     1
      29 U.S.C. § 2601 et seq.
                      I.     FACTS AND PROCEEDINGS

A.    Background

      From July of 2000 until October of 2002, Richardson worked in

the   customer   service    department   of   Monitronics,   a   monitoring

company for residential and commercial alarm systems.            This is the

second FMLA suit that Richardson has filed against Monitronics.

      1.    The First Suit

      In January 2001, Richardson’s physician diagnosed her as

suffering from carpal tunnel syndrome. She applied for FMLA leave,

but Monitronics denied her request because she had not yet worked

for Monitronics for one year, which is necessary for an employee to

be entitled to FMLA leave.       Consequently, Richardson took a two-

month paid leave under Monitronics’s occupational injury program.

In addition to her two-month leave under that program, Richardson

accumulated 12 absences and 22 tardies during the first four months

of 2002.     As a result of her attendance record, Monitronics

suspended Richardson and issued her a warning for her attendance

problems.

      In April 2002, Richardson successfully applied for and was

granted FMLA leave.    During her absence, Monitronics implemented a

new   software   program.     When   Richardson   returned   from    leave,

Monitronics restored her to the same job title, rate of pay, and

position that she had when she took leave.         Monitronics, however,

prohibited Richardson from working overtime on weekends until she


                                     2
was trained on the new software program. Once Richardson completed

the training, Monitronics permitted her to work overtime.

     In September 2002, Richardson sued Monitronics for violating

her rights under the FMLA.       Specifically, Richardson alleged that

(1) Monitronics unlawfully denied her FMLA leave from January to

March 2002 and unlawfully disciplined her for absences incurred

during that period, and (2) Monitronics restricted her ability to

work overtime in retaliation for taking FMLA leave.              The district

court found no violation of Richardson’s FMLA rights, and we

affirmed.

     2.     Chronological Background Underlying the Present Suit

            a.   April 2003: Oral Warning

     Richardson continued to have attendance problems in addition

to those at issue in her first lawsuit.              In April 2003 alone,

Richardson incurred four absences and five tardies.              As a result,

her supervisor, Demekia Green, issued Richardson an oral warning.

            b.   The New Monitronics Time and Attendance Policy

     In May 2003, Monitronics instituted a new employee-attendance

policy embodying a rolling 180-day period to evaluate employee

attendance.      Under    this   policy,    one   absence   or   two   tardies

constitutes an “occurrence.”        The policy specifies that arriving

late, leaving early, exceeding a scheduled break, and violating the

dress code count as “tardies.”             If, in any 180-day period, an

employee    incurs   an   “occurrence,”      Monitronics    issues     an   oral


                                     3
warning; two “occurrences” result in a written warning; three

“occurrences” warrant a final warning; and four “occurrences” are

cause for termination.   The policy expressly states that employees

may not leave work early without a supervisor’s approval, and that

employees must request supervisory approval to be absent from work

at least 48 hours in advance.     FMLA leave is not considered an

occurrence for the purposes of the attendance policy.

           c.   May 2003: Written Warning

     Early in May 2003, Richardson incurred four “tardies” —— May

2 (leaving early), May 7 (leaving early), May 7 (exceeding her

scheduled break), and May 8 (away from her desk for an unacceptable

period of time).    This earned her two “occurrences” under the

policy.   Green issued a written warning to Richardson.

           d.   Richardson’s Request for FMLA Leave

     On May 28, 2003, Richardson completed paperwork requesting

intermittent FMLA leave because of her carpal tunnel syndrome. She

did not, however, specify the dates on which she would need leave.

Monitronics’s    Human   Resources   manager,   Regina    Sconyers,

nevertheless approved Richardson’s request.

           e.   Summer 2003: Final Warning

     From the end of May 2003 to August 2003, Richardson was tardy

five times: May 28, June 2, June 5, June 23, and August 20.    She

contested the May 28, June 2, and June 23 tardies as pre-approved

by her “lead,” Dora Duran.    Richardson provided documentation ——


                                 4
Duran’s calendar for June —— that her June 23 tardy was pre-

approved.       As the calendar shows that “Pam left per F.M.L.A.,”

Monitronics removed that tardy from her record.                  The calendar did

not include the same notation for the other disputed date in June,

however, and Richardson presented nothing else to substantiate her

claim   that     Duran    had   approved       the    other     disputed    tardies.

Accordingly,      Monitronics     did    not     remove       those    tardies   from

Richardson’s attendance record.              In the end, Richardson’s record

reflected that she was tardy four times. Richardson thus accrued

two more “occurrences” over the summer, bringing her total number

of “occurrences” under the policy to four. Green issued Richardson

a final warning, which stated that a repeat violation would result

in immediate termination.

            f.     October 2003: Termination

     On October 21, 2003, Richardson incurred her final infraction.

That day, Monitronics sponsored a self-defense workshop.                         The

details    on    the   informational     flyer       recommended       loose-fitting

clothing for the workshop, so Richardson wore a polo shirt to the

session.    She returned to her shift after the workshop without

changing her clothes.           As polo shirts are expressly prohibited

under the Monitronics dress code, Richardson was sent home.                       By

this time, Richardson had accrued four and a half “occurrences.”

Monitronics suspended Richardson for three days to determine the

appropriate      course    of   action       with    regard     to    her   continued



                                         5
employment with the company.        When Richardson’s suspension ended,

Monitronics fired her.

     3.   The Present Lawsuit

     After her termination, Richardson sued Monitronics alleging

that she was fired in retaliation for her first FMLA lawsuit.

Monitronics filed a motion for summary judgment to have the suit

dismissed, assuming for the sake of argument that Richardson had

established a prima facie case of retaliation under the FMLA, and

the court, employing the traditional McDonnell-Douglas burden-

shifting framework, granted Monitronics’s motion on the ground that

Richardson   failed   to   present        sufficient   evidence   to   rebut

Monitronics’s assertion that it fired her for attendance policy

violations. On appeal, Richardson contends that the district court

should have applied the “modified” McDonnell-Douglas framework ——

otherwise known as the “mixed-motive” framework —— to her case.

She argues that, even though retaliation was not the sole reason

for her termination, it was a motivating factor in it.            Richardson

further   contends    that,     under      the   mixed-motive     framework,

Monitronics is not entitled to summary judgment. We have appellate

jurisdiction under 28 U.S.C. § 1291.

                              II.   ANALYSIS

A.   Standard of Review

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




                                      6
favor of Monitronics de novo.2       We will affirm the district court

if there is no genuine issue of material fact, and Monitronics is

entitled to summary judgment as a matter of law.3          We consider the

evidence in a light most favorable to Richardson, the non-movant,

but she must point to evidence showing that there is a genuine fact

issue for trial.4

B.   The FMLA

     The    FMLA   prohibits   employers    from     “interfer[ing]   with,

restrain[ing],     or   deny[ing]   the   exercise    or   the   attempt   to

exercise, any right provided under” the act.5          Concomitantly, the

FMLA prohibits employers from “discharg[ing] or in any other manner

discriminat[ing[ against an individual for opposing any practice

made unlawful” by the act.6          To make a prima facie case of

retaliatory discharge, the employee must show that (1) she engaged

in a protected activity, (2) the employer discharged her, and (3)

there is a causal link between the protected activity and the

discharge.7



     2
      Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 184 (5th
Cir. 2005).
     3
      Id.
     4
      Id.
     5
      29 U.S.C. § 2615 (a)(1).
     6
      Id. § 2615(a)(2).
     7
      Hunt v. Rapides Healthcare Sys., Inc., 277 F.3d 757, 768
(5th Cir. 2001).

                                     7
      When there is no direct evidence of discriminatory intent, we

have typically relied on the familiar McDonnell-Douglas burden

shifting framework to determine whether an employer discharged an

employee         in   retaliation   for     participating      in    FMLA-protected

activities.8          Specifically, once the employee establishes a prima

facie case of retaliation, the burden shifts to the employer to

articulate a legitimate, nondiscriminatory reason for the adverse

employment action.9          If the employer succeeds in doing so, the

burden shifts back to the employee to show by a preponderance of

the evidence that the employer’s articulated reason is a pretext

for   discrimination.10             Here,       the    district     court    granted

Monitronics’s motion for summary judgment under the traditional

McDonnell-Douglas framework, concluding that Richardson failed to

prove, by a preponderance of the evidence, that Monitronics fired

her in retaliation for exercising her FMLA rights.

      The traditional McDonnell-Douglas framework does not always

apply in FMLA retaliatory discharge cases, however.                     The mixed-

motive framework applies to cases in which the employee concedes

that discrimination was not the sole reason for her discharge, but

argues      that      discrimination      was   a     motivating    factor   in   her

termination.          This rule is based on a recent Supreme Court case,



      8
       Id.
      9
       Id.
      10
           Id.

                                            8
Desert Palace, Inc. v. Costa,11 and our recent opinion in Rachid v.

Jack in the Box, Inc.,12 both of which endorse the mixed-motive

framework        for    actions    arising       under    other   anti-discrimination

statutes. Within the mixed-motive framework, (1) the employee must

make a prima facie case of discrimination; (2) the employer must

articulate a legitimate, non-discriminatory reason for the adverse

employment action; and (3) the employee must offer sufficient

evidence to create a genuine issue of fact either that (a) the

employer’s proffered reason is a pretext for discrimination, or ——

and   herein       lies    the    modifying       distinction      ——    (b)     that   the

employer’s reason, although true, is but one of the reasons for its

conduct, another of which was discrimination.13                         If the employee

proves      that       discrimination      was     a     motivating     factor    in    the

employment decision, the burden again shifts to the employer, this

time to prove that it would have taken the same action despite the

discriminatory           animus.14         The    employer’s      final     burden      “is

effectively that of proving an affirmative defense.”15

      In     Desert      Palace,     the    Supreme       Court   addressed      specific

evidentiary burdens under Title VII. Title VII expressly prohibits


      11
           539 U.S. 90 (2003).
      12
           376 F.3d 305 (5th Cir. 2004).
      13
           Id. at 312.
      14
           Id.
      15
           Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir.
2005).

                                             9
adverse        employment    actions     that   are   motivated   in    part   by

discrimination on the basis of sex, race, color, religion, or

national origin.            Thus, Title VII explicitly permits actions

proceeding under a mixed-motive framework.16             At the time of Desert

Palace, the courts of appeals were split as to whether (1) a

plaintiff must adduce direct evidence of discrimination to have a

court     or    jury   review   claims    under   a   mixed-motive     analytical

framework, or (2) a plaintiff who presents only circumstantial

evidence of discrimination is entitled to proceed under a mixed-

motive framework.17

     In ultimately deciding that a Title VII plaintiff does not

face a heightened evidentiary burden in mixed-motive cases, the

Court started with the text of Title VII.              Specifically, the Court

noted that Title VII (1) explicitly permits mixed-motive cases, (2)

prohibits discrimination “because of” sex, race, color, religion,

or national origin, and (3) “[o]n its face... does not mention,

much less require, that a plaintiff make a heightened showing

through direct evidence.”18              In addition, noted the Court, the

statute’s “silence with respect to the type of evidence required in

mixed-motive cases also suggests that we should not depart from the

‘[c]onventional rule of civil litigation [that] generally appl[ies]



     16
          42 U.S.C. § 2000e-2(m).
     17
          539 U.S. at 92-94.
     18
          Id. at 98 (emphasis in original).

                                          10
in Title VII cases.’”19 Accordingly, a plaintiff in a Title VII

action need only provide circumstantial evidence of discrimination

to be entitled to proceed under the mixed-motive framework.

     In Rachid, we extended Desert Palace and its ruling on the

mixed-motive framework to the ADEA. Specifically, we held that (1)

the mixed-motive analytical framework applies to ADEA cases, and

(2) the plaintiff in an age discrimination action need not provide

direct evidence of discriminatory intent to proceed under the

mixed-motive analytical framework.20       Rachid emphasizes that, like

Title VII, the plain language of the ADEA prohibits discrimination

“because of” age.21        Moreover, “the ADEA neither countenances nor

prohibits the mixed-motives analysis.”22       We recognized in Rachid

that, unlike Title VII, the text of ADEA does not specifically

provide for mixed-motive cases, but found such explicit statutory

text unnecessary to the applicability of the mixed-motive framework

in light of the foregoing reasoning.23

     Rachid is the law of this circuit, and, even though it



     19
          Id. at 99.
     20
          376 F.3d at 310-12.
     21
          Id. at 310-11.
     22
          Id. at 311 n.8.
     23
      Id. (explicitly rejecting Fourth Circuit dicta in Hill v.
Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 n.2
(4th Cir. 2004), indicating that it would find that there is no
mixed-motive option when the statutory language does not
explicitly permit it).

                                     11
addresses a different anti-discrimination statute, consistency

requires that we endorse the mixed-motive framework in appropriate

FMLA retaliation cases.24         First, the text of the FMLA prohibits

discrimination because of the exercise of FMLA rights.                  Although

the text of the statute does not contain the words “because of”

when describing the discrimination that it proscribes, the text

undeniably has that meaning. We have recognized this in fashioning

the third element of an FMLA plaintiff’s prima facie case, i.e.,

that there must be a causal link between the protected activity and

the adverse employment action.           In addition, the FMLA —— like the

ADEA    ——     neither   countenances    nor   prohibits     the   mixed-motive

analysis. Thus, the mixed-motive framework is not at odds with the

statutory text.

       Furthermore,      even   though   the   text   of   the   FMLA   does   not

explicitly authorize the use of the mixed-motive framework, the

regulations promulgated under it clearly anticipate mixed-motive

cases. The regulations state that an employer may not discriminate

against an employee who has taken FMLA leave, specifying by example

that “employers cannot use the taking of FMLA leave as a negative

factor in employment actions.”25          The regulations confirm that the

FMLA protects employees from having their exercise of FMLA rights


       24
      See Oby v. Baton Rouge Marriot, 329 F.Supp.2d 772, 786
(M.D. La. 2004) (relying on Rachid to apply a mixed-motive
analysis to an FMLA claim).
       25
            29 C.F.R. § 825.220(c) (emphasis added).

                                         12
considered   as     “a”    factor   in       the   decision-making   process.

Accordingly, there is a textual basis, albeit regulatory, for

applying a mixed-motive analysis.

      Based on the foregoing, we are convinced that the district

court erred in evaluating Richardson’s FMLA retaliation claim under

the   traditional    McDonnell-Douglas         framework.     Richardson    is

entitled to have her claim reviewed under a mixed-motive analytical

framework.   Today’s holding accords with the opinion of the only

other federal appellate court that has specifically addressed the

applicability of the mixed-motive framework to the FMLA.26

C.    Application to Richardson’s Case

      1.   Richardson’s   Prima  Facie   Case   and            Monitronics’s
           Legitimate, Nondiscriminatory Reason

      In its brief, Monitronics appears to contest Richardson’s

ability to establish a prima facie case.              As we noted, however,

Monitronics’s motion for summary judgment assumes for the sake of

argument that Richardson did establish a prima facie case of

discrimination.     Accordingly, Monitronics has waived any argument

on appeal that Richardson cannot establish a prima facie case of

discrimination.           Montironics    has,      however,   articulated   a

legitimate, nondiscriminatory reason for firing Richardson: She

acquired 4.5 occurrences under the attendance policy, which calls


      26
      Gibson v. City of Louisville, 336 F.3d 511, 513 (6th Cir.
2003) (acknowledging that an FMLA plaintiff does “not need to
prove that discrimination was the sole reason for his
termination”).

                                        13
for termination, and she had a lengthy history of attendance

problems.

       2.    Discrimination as a Motivating Factor in Richardson’s
             Discharge

       Richardson has presented sufficient evidence to create an

issue of fact as to whether the exercise of her FMLA rights was a

motivating factor in her discharge.              Specifically, Richardson

testified that, about a month before she was fired, she overheard

her manager, Reginald Blakely, tell Green that “We’ll just fire her

ass.   We’ll worry about it later.”         Richardson confronted Blakeley

about the statement, and he responded that he was “tired of all of

this stuff” going on with her.             Monitronics does not deny the

statements.     Although the statements could relate to Richardson’s

attendance policy violations, they could also relate to her FMLA

leaves or     to   her   ongoing   suit    against   Monitronics,   or   both.

Similarly, Richardson testified that the head of Human Resources

informed her that Monitronics would no longer accommodate her, that

it   had    “accommodated   her    enough.”     Monitronics   disputes    the

statement, but, taken in the light most favorable to Richardson,

the statement could be probative of a hostile environment.                The

hostile remarks and the temporal proximity of Blakely’s remarks to

Richardson’s termination, taken as a whole, raise an issue of fact

as to whether retaliation was a motivating factor in Richardson’s




                                      14
termination.27

      Richardson insists that there is other evidence that creates

an issue of fact as to whether retaliatory animus was a motivating

factor in her termination.          Her proffered evidence falls short of

the   mark.      For   example,      Richardson   protests   that    she   was

disciplined for three tardies that had been approved by her “lead,”

Duran.      Therefore, complains Richardson, Monitronics should not

have disciplined her for those tardies under the attendance policy.

Richardson offers nothing else, however, such as testimony from

Duran, to support her assertion.            Notably, the only documentary

evidence before us, Duran’s calendar, indicates that she did not

approve at least one of the contested tardies.

      Richardson also asserts that Monitronics manufactured the

dress code violation that lead to her termination.              She admits,

however, that she was in violation of the dress code.                There is

nothing before us to suggest that the Monitronics dress code did

not remain in full effect while employees were at the office.

Accordingly, Richardson’s contention that her dress code violation

was   a    suspect   reason   for   terminating   her   fails   to   indicate

retaliatory animus.

      Richardson further contends that Monitronics departed from its

own progressive discipline attendance policy when it terminated her

      27
      Cf. Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th
Cir. 2005) (considering plaintiff’s evidence as a whole to
determine whether discrimination was a motivating factor in
adverse employment decision).

                                       15
when it failed to give her an oral warning after the policy went

into effect in May 2003. Richardson’s argument is merely semantic.

She received an oral warning in April 2003 for incurring four

absences and five tardies —— more than 6 occurrences ——             in that

month alone.      Shortly after her oral warning, Richardson received

(1) a written warning in May 2003, (2) a final warning in August

2003, and (3) termination in October 2003.          An employer’s failure

to follow its own policies may be probative of discriminatory

intent, but it would be too far a stretch to infer discriminatory

intent on these facts.        Richardson can twist the facts to argue

that the progressive discipline she received departed from the

attendance   policy,    yet   this   “departure”    is   not   probative   of

retaliatory animus.

       Finally, Richardson insists that Monitronics made several

changes to her schedule without giving her proper notice in an

effort to induce her to commit attendance policy violations.

Significantly, however, Richardson’s deposition testimony reveals

that Monitronics changed her schedule only once without proper

notice, and that management recognized its error and apologized to

her.     Richardson did not testify that the improperly-noticed

schedule change induced her to violate the attendance policy.

3.     Monitronics Would Have Fired Richardson Absent any Retaliatory
       Animus

       Richardson submitted sufficient evidence to create a fact

issue   whether    retaliatory   animus   was   a   motivating    factor   in


                                     16
Monitronics’s decision to fire her.            Monitronics was thus required

to provide sufficient evidence to establish as a matter of law that

it   would   have    fired    her   despite    any      retaliatory    motive;    and

Monitronics met this burden.           Most significantly, the attendance

policy    undeniably     specifies     that    four      occurrences     result   in

termination.       Richardson acquired more than enough occurrences to

justify her termination under the policy.                  Moreover, Monitronics

demonstrated that it has always maintained a company policy that

attendance    is    a   key   consideration        in   determining     whether   an

employee is entitled to continued employment; and Richardson has a

long history of attendance problems.                     The foregoing evidence

overcomes    Richardson’s       evidence      of     retaliatory      motive   which

consists entirely of ambiguous or conclusional statements.                     We are

convinced that the only reasonable conclusion a jury could make is

that Monitronics would have fired Richardson with or without

retaliatory animus. Monitronics thus carried its burden of proving

that it would have fired Richardson irrespective of any retaliatory

motive.

                                III. CONCLUSION

      Even under the mixed-motive framework that we today hold to be

applicable in FMLA retaliation claims, Monitronics has carried its

burden of proving that it would have fired Richardson despite any

retaliatory motive. Monitronics is therefore entitled to a summary

judgment dismissing Richardson’s action. We affirm the judgment of



                                        17
the district court, albeit for the foregoing, different reasons.

AFFIRMED.




                               18
