                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

           IN THE UNITED STATES COURT OF APPEALS I L E D
                                               F
                    FOR THE FIFTH CIRCUIT      June 6, 2008

                                                                             Charles R. Fulbruge III
                                                                                     Clerk
                                     No. 07-20779
                                   Summary Calendar


JOHNELLE STROUD

                                                  Plaintiff-Appellant
v.

BMC SOFTWARE INC

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:06-cv-01402


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Johnelle Stroud (“Stroud”) appeals the district court’s
grant of summary judgment in favor of her former employer, Defendant-Appellee
BMC Software, Inc. (“BMC”), on Stroud’s retaliation claim under the Family and
Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”). Because we find no
genuine issue of material fact on the merits of Stroud’s retaliation claim, we
affirm.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-20779

                             I. BACKGROUND
      Stroud began working for BMC on January 14, 2002, as a financial
analyst. Stroud originally reported to manager Steve Duson (“Duson”), who in
turn reported to Financial Director Ricardo Rodriguez (“Rodriguez”). From early
in her tenure, Stroud ran into trouble with excessive absenteeism. By March 7,
2002, Stroud had accumulated nine unexcused absences from work. Stroud’s
supervisor, Duson, met with Stroud and issued her a written warning detailing
these absences.
      In October 2002, BMC transferred Stroud laterally to another financial
analyst position, where she reported directly to Rodriguez. In July 2003, on
Rodriguez’s recommendation, Stroud was awarded a stock option grant. In
September 2003, Stroud was laterally transferred again and reported to Kim
Dolan (“Dolan”), who was located in Waltham, Massachusetts. Because Stroud
worked in Houston, Rodriguez supervised Stroud in Dolan’s place whenever
necessary. Around the time of her second transfer, BMC allowed Stroud to work
under a flexible work schedule, in which she would work eighty hours in nine
business days, then take the tenth day off.
      But Stroud’s absenteeism persisted. Dolan verbally warned Stroud that
between January 1, 2003, and October 24, 2003, Stroud had accumulated eleven
“unapproved” sick days, on top of the eight approved sick days she took. At that
time, Dolan suspended Stroud’s flexible work schedule and demanded that
Stroud present a doctor’s note for any additional sick days. On March 25, 2004,
Stroud received a written warning from Dolan and Rodriguez noting that Stroud
had incurred two unapproved sick days in the first three months of 2004. The
written warning emphasized that further violations of the attendance policy
could result in “disciplinary action up to and including termination.”
      In or around April 2004, Stroud informed Dolan that she was pregnant.
Subsequently, Stroud missed several days of work, which Dolan attributed to her


                                       2
                                     No. 07-20779

pregnancy and did not categorize as sick days. In other words, Stroud was
neither disciplined nor penalized for taking those days off. Around this time,
Stroud began reporting to Don Caramanico (“Caramanico”), then Vice President
of Outsourcing Sales for BMC. Between April and October 2004, Caramanico
voiced his dissatisfaction with Stroud’s job performance to Rodriguez and Dolan
(though apparently not to Stroud). During this same period, Stroud received a
performance report from Dolan (covering the year ending March 31, 2004) in
which she scored an overall rating of three out of five, characterized as “meets
expectations.”    Stroud disagreed with this evaluation and filed a formal
“rebuttal,” charging that the “meets expectations” rating was not accurate.
      The record reflects other evidence of BMC’s dissatisfaction with Stroud.
In one episode recounted in differing versions by the parties, Stroud barely met
a deadline on a quarterly accrued commissions report and reluctantly stayed late
to finish the report after receiving a one-day extension. Although Stroud
characterizes this event as a “non-issue” because she received no written
reprimand, Rodriguez stated that this episode convinced him that “[i]n crunch
time, [Stroud] wasn’t dependable.”
      Stroud’s subsequent supervisor, Caramanico, came to a similar conclusion,
noting that Stroud was “not timely in her reporting.”1                Prior to Stroud’s
maternity leave, Caramanico communicated these concerns to Dolan and
Rodriguez and requested that Stroud be transferred to another department.




      1
       Caramanico elaborated in an affidavit:
      Stroud supported my group until she left for maternity leave in October 2004.
      During the time she supported my group, I had serious concerns regarding her
      performance. Overall, Stroud was not performing to the needs of my group and
      was adding very little value to my team. She often did not attend scheduled
      meetings and was not connected to the sales employees in my group. She was
      not timely in her reporting and did not appear to understand our business, nor
      did she express an interest or make an effort to do so.

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                                  No. 07-20779

      On October 28, 2004, Stroud began an approved FMLA leave in the lead
up to her delivery date of December 22, 2004. She remained on FMLA leave
through March 26, 2005, when she returned to work. In her absence, Stroud’s
department underwent significant organizational changes. Five new employees
were hired, three employees (including Stroud) were assigned new roles, two
employees transferred to other departments, and one employee resigned.
Rodriguez reassigned Stroud to a “projects and reporting” position to replace an
employee who transferred to another department. Meanwhile, BMC began a
company-wide reduction in force. Rodriguez was asked to rank all of the
employees working under him based on various criteria, such as skills or
abilities, short-term impact, and long-term potential.       Stroud ranked last.
Thereafter, upper management informed Rodriguez that his department would
be reduced by one employee and that two open positions would be frozen. Based
upon the ranking he had prepared, Rodriguez selected Stroud for termination.
      On March 26, 2005, Stroud returned to work from FMLA leave. On April
14, 2005—three weeks later—she was terminated along with 800 other BMC
employees in a company-wide reduction in force. BMC offered Stroud its
standard separation package.
      In May 2005, Stroud filed a discrimination claim with the Equal
Employment Opportunity Commission, alleging discrimination on the basis of
disability, gender, and pregnancy. After an investigation, the EEOC determined
that Stroud was not a victim of discrimination, and it issued a right-to-sue letter.
On April 21, 2006, Stroud filed this suit. Specifically, Stroud alleged gender
discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. (“Title VII”), the Texas Commission on
Human Rights Act, TEX. LAB. CODE ANN. § 21.001 et seq., and the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”); an FMLA
retaliation claim; and a state-law claim of intentional infliction of emotional

                                         4
                                    No. 07-20779

distress. On June 29, 2007, BMC filed a motion for summary judgment, and the
district court granted the motion with respect to Stroud’s Title VII, ADA, FMLA,
and intentional infliction of emotional distress claims. The court dismissed
Stroud’s claim under the Texas Commission on Human Rights Act. Stroud now
appeals the district court’s grant of summary judgment on her FMLA retaliation
claim.2
            II. JURISDICTION AND STANDARD OF REVIEW
      We have jurisdiction to hear this appeal under 28 U.S.C. § 1291. We
review a district court’s order granting summary judgment de novo. Morris v.
Equifax Info. Servs., LLC, 457 F.3d 460, 464 (5th Cir. 2006).              Summary
judgment is appropriate when, after considering the pleadings, depositions,
answers to interrogatories, admissions on file, and affidavits, “there is no
genuine issue as to any material fact and . . . the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c); Bulko v. Morgan Stanley DW, Inc., 450
F.3d 622, 624 (5th Cir. 2006). A genuine issue of material fact exists when the
evidence is such that a reasonable jury could return a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering
a summary judgment motion, all facts and evidence must be taken in the light
most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros.,
453 F.3d 283, 285 (5th Cir. 2006).
                                III. DISCUSSION
      The FMLA was designed, in part, to allow eligible employees to take
temporary leave for medical reasons or for the birth or adoption of a child. 29
U.S.C. § 2601(b)(2). Under the FMLA it is “unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt to exercise, any
right provided under” the Act. Id. § 2615(a)(1). In order to establish a prima

      2
         Stroud apparently does not appeal the court’s grant of summary judgment on her
other claims.

                                          5
                                     No. 07-20779

facie case of FMLA retaliation, a plaintiff must establish 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.”3                 Richardson v.
Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005). If there is no direct
evidence of discriminatory intent, we apply the burden shifting framework
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Richardson, 434 F.3d at 332. Under this approach, once an employee has
established a prima facie case of retaliation, the burden shifts to the employer
to articulate a legitimate, nondiscriminatory reason for the adverse employment
action.   Id.   In cases involving a potential mixed motive for the adverse
employment action, to survive summary judgment 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 . . . (b) that the employer’s
reason, although true, is but one of the reasons for its conduct, another of which
was discrimination.” Id. at 333.
      In this case there is no dispute that Stroud met the first two elements of
a prima facie retaliation claim. However, the district court concluded that
Stroud failed to show a causal link between her FMLA leave and her
termination. The court reasoned that the temporal proximity between Stroud’s
return to work and her termination did not demonstrate a causal link, especially
in light of the fact that over 800 other employees were terminated at the same
time as Stroud under the reduction in force. As an alternative, the district court
stated that even if Stroud could establish a prima facie retaliation claim, BMC
had carried its burden under the McDonnell Douglas framework by establishing



      3
        This third prong is sometimes elaborated: “(3a) that she was treated less favorably
than an employee who had not requested leave under the FMLA; or (3b) the adverse decision
was made because she took FMLA leave.” Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d
757, 768 (5th Cir. 2001).

                                            6
                                     No. 07-20779

a legitimate nonretaliatory reason for Stroud’s termination—presumably
Stroud’s poor attendance record and poor performance and BMC’s reduction in
force—despite Stroud’s “unsubstantiated allegations to the contrary.”
      On appeal, Stroud makes several arguments. Primarily, Stroud argues
that the district court erred in finding that she failed to satisfy the causal link
element of her prima facie retaliation claim. Stroud alleges that the district
court (1) failed to credit her summary judgment evidence of an alleged pattern
of discriminatory behavior by Rodriguez; and (2) incorrectly declined to infer a
causal link from the temporal proximity between her FMLA leave and
termination. In addition, Stroud contends that BMC’s claim of a legitimate
nondiscriminatory purpose—its reduction in force and Stroud’s absenteeism and
poor performance—is undermined by the fact that there were two positions open
at the time of her termination and that Stroud’s performance reviews reflect that
she “meets expectations.”
A.    Stroud’s Prima Facie Case
      We first consider whether Stroud’s summary judgment evidence is
sufficient to establish a prima facie claim of retaliation. Stroud argues that the
district court ignored her allegations that Rodriguez exhibited “a pattern of
animosity towards women who took medical/maternity leave.” Stroud cites a
statement Rodriguez purportedly made that “he thought [Stroud] would not
want to return [to work] after having the baby.”4 Stroud also claims that two



      4
      Stroud recounted this conversation in an affidavit attached to her response to BMC’s
summary judgment motion:
     During one of my quarterly talks with Ricardo Rodriguez while I was pregnant,
     he asked me if I thought I would come back to work after having the baby. I
     told him that yes, I though [sic] I would want to work. He then talked about
     how his wife was a stay at home mom to their son and how he once had the
     opportunity to work from home when he worked for IBM and it was less than
     ideal for him because both he and his wife were at home all day. He then told
     me he thought I would not want to return after having the baby.

                                            7
                                  No. 07-20779

other BMC employees working under Rodriguez suffered adverse employment
actions after taking maternity leave.
      We find no evidence here to suggest a causal link between Stroud’s FMLA
leave and her termination. Rodriguez’s statement that he did not expect Stroud
to return to work after giving birth does not support an inference of retaliation.
Rodriguez made that statement in the context of a larger discussion with Stroud
about her future plans after giving birth. He asked about Stroud’s plans and
told her about his own past work experience. Even when viewing this evidence
in a light most favorable to Stroud, it simply does not support her retaliation
claim.
      Similarly, Stroud’s reference to the cases of two other pregnant BMC
employees does not create a fact issue with respect to whether Stroud met her
burden on the causal link element. Stroud relies on a deposition of Rodriguez
in which he discussed the cases of those two women. One woman, who was
demoted after her FMLA leave, had consistently underperformed in her job.
According to Rodriguez’s undisputed deposition, “she wasn’t performing to her
satisfaction nor to mine.” Rodriguez held coaching sessions with the woman
prior to her maternity leave, discussing how “her performance wasn’t up to
par”—an assessment with which the woman agreed. She was demoted after the
next regularly scheduled annual evaluation.
      A second woman who took maternity leave subsequently was terminated
in a reduction in force, although in his deposition, Rodriguez was unsure
whether she was terminated or demoted following her maternity leave. It is
unclear why she was terminated; Rodriguez was not even asked that question.
Nor does the deposition tell us whether her FMLA leave and termination
occurred close in time.
      This sparse evidence does not suggest any connection between either
woman’s FMLA leave and adverse employment action. Stroud offers no evidence


                                        8
                                  No. 07-20779

to counter Rodriguez’s version of both cases, which in no way establishes that he
has a bias against pregnant women.
      With respect to Stroud’s temporal proximity argument, it is a closer call
as to whether the timing of her termination supports an inference of a causal
link. The district court concluded that temporal proximity alone was insufficient
to establish a causal link, in part because over 800 other employees were
contemporaneously terminated as part of the reduction in force. However, that
reasoning discards this court’s prior holdings that temporal proximity alone can
support an inference of a causal link.
      The standard for establishing the causal link element in a retaliation
claim is less stringent than a “but for” standard. Long v. Eastfield Coll., 88 F.3d
300, 305 n.4 (5th Cir. 1996). “Close timing between an employee’s protected
activity and an adverse action against [her] may provide the ‘causal connection’
required to make out a prima facie case of retaliation.” Swanson v. Gen. Servs.
Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (emphasis omitted); see also
Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993) (finding the causal
link prong established where “[t]he only evidence available to support an
inference of discrimination . . . is the temporal proximity” of the protected
activity and the adverse employment action). The Supreme Court has noted that
“cases that accept mere temporal proximity . . . as sufficient evidence of causality
to establish a prima facie case uniformly hold that the temporal proximity must
be ‘very close.’” Clark County Sch. Dist. v. Breeden 532 U.S. 268, 273 (2001).
Although the Court did not define “very close,” it cited cases holding three and
four-month periods insufficient to infer a causal link. Id. (citing Richmond v.
ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (three months), and Hughes v.
Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (four months)).
      In noting lower courts’ “very close” standard, the Supreme Court cited
approvingly to a Tenth Circuit case, O’Neal v. Ferguson Construction Co., 237

                                         9
                                       No. 07-20779

F.3d 1248 (10th Cir. 2001). The Tenth Circuit has a somewhat more specific
definition: “‘[W]e have held that a one and one-half month period between
protected activity and adverse action may, by itself, establish causation. By
contrast, we have held that a three-month period, standing alone, is insufficient
to establish causation.’” Id. at 1253 (quoting Anderson v. Coors Brewing Co., 181
F.3d 1171, 1179 (10th Cir. 1999)).
       In Evans v. City of Houston, 246 F.3d 344, 355 (5th Cir. 2001) (issued prior
to Breeden), this court found that a five-day lapse between an employee’s
protected activity and an adverse employment action was sufficient to satisfy the
“causal link” prong of a prima facie retaliation claim, without any other evidence
of a causal link. At the time of Evans, courts in this circuit had found temporal
proximity of up to four months to be sufficient to show a causal link. See, e.g.,
Garrett v. Constar, Inc., No. Civ.A. 397-CV-2575, 1999 WL 354239, at *5 (N.D.
Tex. May 25, 1999).5
       More recently, we have further clarified the meaning of “very close.” We
have held that a five-month lapse, by itself, does not support an inference of a
causal link. Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471-72 (5th Cir.
2002). In unpublished decisions, we have narrowed the range. For example, we
concluded that two and a half months is a short enough period to support an
inference of a causal link. Richard v. Cingular Wireless LLC, 233 F. App’x 334,
338 (5th Cir. 2007). Similarly, we found a fifteen-day lapse sufficiently close to
support an inference of causation. Ware v. CLECO Power LLC, 90 F. App’x 705,
708 (5th Cir. 2004).



       5
         We have noted that “the mere fact that some adverse action is taken after an employee
engages in some protected activity will not always be enough for a prima facie case.” Swanson,
110 F.3d at 1188 n.3. However, Stroud does not allege merely that her termination occurred
after her FMLA leave. She notes that it occurred closely after her return to work from FMLA
leave.

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                                  No. 07-20779

      We have found no cases holding a three-week period, or shorter, to be
insufficient to support an inference of a causal link. Therefore, following Evans,
we believe the district court should have found that Stroud made a prima facie
retaliation claim sufficient to shift the burden to BMC.
      Therefore, we hold that the district court should have found Stroud’s
prima facie claim satisfied. Ultimately, however, this does not affect this case’s
outcome because, as discussed below, Stroud fails to refute BMC’s legitimate,
nondiscriminatory reasons for her termination.
B.    BMC’s Non-Discriminatory Purpose
      Because Stroud has made a prima facie showing on her retaliation claim,
the burden shifts to BMC to articulate a “legitimate, nondiscriminatory reason”
for Stroud’s termination. Richardson, 434 F.3d at 332. BMC asserts that Stroud
was terminated due to a company-wide reduction in force that involved the
termination of 800 other employees. In preparation for the reduction in force,
BMC instructed Rodriguez to rank employees based on skills, abilities, short-
term impact, and long-term potential. According to Rodriguez, Stroud received
the lowest ranking in his department, and Rodriguez therefore designated her
as the employee to be terminated.
      In addition to BMC’s reduction in force, the record reflects that Stroud had
a history of excessive absenteeism and had most recently been given only a fair
evaluation. Although her technical score was “meets expectations,” Stroud
clearly did not consider this to be a positive evaluation: she challenged her
review, filing a formal “rebuttal.” Stroud incorrectly characterizes her past work
performance and evaluations in an attempt to classify herself as a model
employee. Prior to her FMLA leave, Stroud’s managers had warned her, both
in writing and verbally, that her absenteeism could lead to termination. The
sum of this evidence presents substantial nondiscriminatory reasons for BMC
to fire Stroud.

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                                 No. 07-20779

C.    Pretext or Discriminatory Purpose
      Because BMC has shown a legitimate, nondiscriminatory reason for
Stroud’s termination, the only way Stroud can survive summary judgment is if
she shows either that (1) BMC’s explanation was pretextual, or (2) BMC’s
nondiscriminatory rationale, “although true, is but one of the reasons for its
conduct, another of which was discrimination.” Richardson, 434 F.3d at 333.
      Under either approach, Stroud’s arguments come up short. First, she
alleges that BMC’s reference to her absences is pretext because the company
misapplied its own policy on absences, which apparently stated no maximum
number of allowed absences. Nevertheless, we can assume that BMC wants its
employees to show up at work. Stroud’s attendance record was dismal, and she
was warned repeatedly about her excessive absenteeism. This rationale does not
appear to be pretextual.
      Next, Stroud notes that two financial analyst positions became vacant
around the time of her termination, and both were filled by new hires. This
Stroud argues, undermines BMC’s argument that her termination resulted from
the reduction in force. However, Rodriguez explained in his deposition that
Stroud was not “qualified” for either of these positions because she lacked the
education and experience requirements.       In addition, Rodriguez remained
bothered by her attendance problems and his belief that she was “not
dependable.” Thus, the mere existence of two open positions at the time of the
reduction in force does not override BMC’s legitimate reasons for terminating
Stroud.
      Stroud also alleges that the legitimate reduction in force gave BMC the
ability to mask its retaliatory firing of her: “[A]ny company who wanted to fire
individuals who engaged in protected activity . . . could just include that
individual in it’s [sic] reduction in force.” While this may be true, it does not
excuse Stroud from her burden to prove—or at this stage raise a fact issue

                                       12
                                  No. 07-20779

regarding—her claim of retaliation. Furthermore, the mere fact of BMC’s
reduction in force more strongly suggests there was no retaliatory purpose in
this case, especially given Stroud’s past poor job performance and absenteeism.
      In an effort to show discriminatory purpose, Stroud repeats her allegations
of Rodriguez’s pattern of discrimination against pregnant women. Above, we
concluded that Stroud’s allegations of a discriminatory pattern by Rodriguez
were insufficient to support Stroud’s prima facie case. Similarly, we find that
these allegations do not constitute circumstantial evidence of a discriminatory
motive behind Stroud’s termination.
      That leaves only temporal proximity as circumstantial evidence of a
discriminatory purpose. “‘Close timing between an employee's protected activity
and an adverse action against him may provide the ‘causal connection’ required
to make out a prima facie case of retaliation. However, once the employer offers
a legitimate, nondiscriminatory reason that explains both the adverse action and
the timing, the plaintiff must offer some evidence from which the jury may infer
that retaliation was the real motive.’” Woodson v. Scott & White Mem’l Hosp.,
255 F. App’x 17, 20 (5th Cir. 2007) (quoting McCoy v. City of Shreveport, 492
F.3d 551, 562 (5th Cir. 2007)); see also Strong v. Univ. Healthcare Sys., LLC, 482
F.3d 802, 808 (5th Cir. 2007) (holding that temporal proximity alone is
insufficient to support a finding of “but for” causation in a Title VII retaliation
suit). Stroud has offered no such evidence. Accordingly, we affirm the district
court’s grant of summary judgment in favor of BMC.
      AFFIRMED.




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