     Case: 10-20411 Document: 00511459472 Page: 1 Date Filed: 04/28/2011




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

                                                 FILED
                                                                            April 28, 2011

                                     No. 10-20411                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



KAREN LEAL,

                                                   PlaintiffSAppellant
v.

BFT, LIMITED PARTNERSHIP, doing business as Great American
Business Products,

                                                   DefendantSAppellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:09cv1083


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       This appeal presents an issue under the Family and Medical Leave Act,
29 U.S.C. § 2601 et seq. (FMLA). Karen Leal (Leal) filed suit against her former
employer, BFT, L.P. (BFT) for allegedly retaliating against her for taking leave
to which she was entitled under FMLA. The district court granted BFT’s motion




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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for summary judgment on her claims because Leal failed to show the existence
of any genuine issue of material fact. We AFFIRM.
                       FACTS AND PROCEEDINGS
      In 2005, BFT, which sells business products through catalogs and phone
orders, hired Leal into the newly-created position of “Trainer” at its Houston,
Texas call center. BFT’s goal in adding this position was to improve its sales by
continually training its call center staff.       Leal’s duties as Trainer included
training new and existing call center representatives, creating material for and
conducting call center training programs, monitoring calls for quality, and
critiquing call center employees on monitored calls. By 2009, Leal was also
engaging   in   some   operational   job       functions   that   were   not   training
responsibilities, including following up on open orders.
      Since BFT became obligated under the FMLA, approximately forty of its
employees have taken FMLA leave. Some of these employees took more than
one installment of FMLA leave. At least a few were later terminated for cause.
      In May 2008, Doug Smith, BFT’s President and CEO, determined that
Leal was too highly compensated to conduct basic training for new call center
employees. He reassigned those responsibilities to June Humada, BFT’s Lead
Call Center Representative, who continued to perform this training until at least
October 2009.
      In July 2008, in response to the resignation of BFT’s Call Center Manager,
Smith appointed Dawn Coffman, who was at that time BFT’s Office Manager,
to take on the responsibilities of Call Center Manager. Smith made the decision
to consolidate the two positions into one based at least partly on economics.
When he appointed Coffman Call Center Manager, Smith questioned her about
BFT’s continuing need for a Trainer. Coffman requested time to assess her new
responsibilities before making a recommendation. Over the following months,

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Smith raised the need for a Trainer several times with Coffman, but she did not
provide a firm recommendation and he did not make a decision on the issue.
      Leal became pregnant in 2008 and formally requested FMLA leave in
approximately August 2008 for a future date. The first conversation between
Smith and Coffman regarding the Trainer position occurred before Leal informed
Smith that she was pregnant.
      In January 2009, in response to the economic downturn and decreasing
sales, BFT laid off nine full-time employees. Two of these employees were from
the call center, six from the graphics team, and one from the marketing team.
On the same day, Coffman sent an e-mail to the call center confirming the
layoffs and stating that all of the laid-off employees had received a severance
package. Approximately one hour later, Coffman sent a second e-mail to the call
center stating that: “There are no additional layoffs planned. We are right-sized
now for the sales we are anticipating. I repeat, the planned layoffs are
complete!”
      Leal began her FMLA leave in February 2009 and was scheduled to return
to work in April of that year. Before departing, Leal sent an e-mail to Smith
detailing her current responsibilities.    Smith was surprised that Leal was
performing   various   operational   functions   in   addition   to   her   Trainer
responsibilities. When Leal began her leave, Coffman sent an e-mail to the call
center stating that, in Leal’s absence, Humada would be assuming the
responsibilities of Trainer.
      In March 2009, Smith and Coffman determined that the Trainer position
was no longer necessary for BFT. This decision was based on the decrease in call
center representatives from forty to twenty-two from the time that Smith
created the Trainer position and the fact that adding a Trainer had not
increased sales. Smith’s decision was not based on Leal’s performance; he

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expressed no dissatisfaction with her abilities or performance.       Smith and
Coffman did not intend to inform Leal that the Trainer position had been
eliminated until she returned from her FMLA leave. However, Coffman became
aware that Leal was possibly going to purchase a new vehicle and hire a nanny
prior to her return, and Coffman and Smith agreed to immediately inform Leal
about the discontinuation of her position.
      On March 27, 2009, Coffman so advised Leal and offered her an eight-
week severance package. The package was equivalent to the severance packages
BFT previously offered to employees whose positions were eliminated; it was
double the severance package that BFT offered to the individuals laid-off in
January 2009. Also on March 27, Coffman sent an e-mail to various BFT teams
stating that: “[W]e eliminated the ‘Trainer’ position and Karen won’t be coming
back. It was an economical decision and hope everyone will understand.” Since
that e-mail, no one has performed the remaining responsibilities of the Trainer
position. The operational duties that Leal had taken on during her tenure
continue to be performed by someone in the company.
      Leal refused to sign a release and accept the severance package. She filed
suit against BFT in the Southern District of Texas alleging FMLA retaliation.
BFT moved for summary judgment, the district court granted its motion, and
Leal appealed.
                          STANDARD OF REVIEW
      We review the district court’s decision to grant a motion for summary
judgment de novo. Public Citizen Inc. v. La. Att’y Disciplinary Bd., 632 F.3d
212, 217 (5th Cir. 2011). Summary judgment is appropriate “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). All reasonable
inferences are drawn in favor of the nonmoving party, but a party cannot defeat

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summary judgment with conclusory allegations or unsubstantiated assertions.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
                                 DISCUSSION
      The FMLA provides that “an eligible employee shall be entitled to a total
of 12 workweeks of leave during any 12-month period for one or more of the
following: (A) Because of the birth of a son or daughter of the employee and in
order to care for such son or daughter . . . .” 29 U.S.C. § 2612(a)(1). It also
contains a provision protecting employees from retaliation or discrimination for
exercising FMLA rights. Mauder v. Metro. Transit Auth. of Harris Cnty., 446
F.3d 574, 580 (5th Cir. 2006).
      Leal alleges that she was retaliated against for exercising her right to
FMLA leave for the birth of her child. “The Fifth Circuit applies the McDonnell
Douglas framework to analyze retaliation claims under the FMLA, noting that
there is no significant difference between such claims under the FMLA and
similar claims under other anti-discrimination laws.”          Hunt v. Rapides
Healthcare Sys., 277 F.3d 757, 768 (5th Cir. 2001) (quotation and citation
omitted). Therefore, in order to establish a prima facie case of retaliation, Leal
must show that: (1) she was protected under the FMLA; (2) she suffered an
adverse employment action; and (3) the adverse decision was made because she
took leave to which she was entitled under the FMLA. Id. Once she establishes
a prima facie case, the burden shifts to BFT to articulate a legitimate
nonretaliatory reason for its employment action. Id. Thereafter, the burden
shifts back to Leal to “adduce evidence that would permit a reasonable trier [of]
fact to find that the proffered reason is a pretext for retaliation.” Medina v.
Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (internal quotation and
citation omitted). This requires the plaintiff to demonstrate that the adverse
employment action would not have occurred “but for” the protected activity. Id.

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      Leal and BFT agree that Leal has satisfied the first two elements of her
prima facie case: she was protected under the FMLA and suffered an adverse
employment action. This court, like the district court, turns to whether Leal has
shown that BFT made the adverse decision because she sought protection under
the FMLA. This element, referred to as the “causal link,” is “established when
the evidence demonstrates that the employer’s decision to terminate was based
in part on knowledge of the employee’s protected activity.” Medina, 238 F.3d at
684 (internal quotation and citation omitted). The Supreme Court has held that,
in order to establish the causal link, temporal proximity, if offered by itself, must
be “very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001)
(per curiam) (noting that time periods of three and four months had been found
by the appellate courts to be “very close” and holding that a period of twenty
months was not “very close”); see also Mauder, 446 F.3d at 584 (citing Clark
Cnty.). Because Leal was terminated during her exercise of FMLA rights, we
conclude that the    “temporal proximity” between her FMLA leave and the
adverse action was “very close” and is sufficient to establish the necessary causal
link for a prima facie case.
      The burden therefore shifted to BFT to articulate a nonretaliatory reason
for its employment decision. Mauder, 446 F.3d at 583; Hunt, 277 F.3d at 768.
BFT stated that it eliminated the Trainer position because Smith believed that
it was neither necessary nor beneficial to the company’s goal of increased sales.
To support this explanation, BFT submitted: (1) Smith’s deposition testimony
and Coffman’s affidavit regarding the decrease in the size of BFT’s call center
since BFT created the Trainer position; (2) two e-mails from Coffman to the call
center discussing the layoffs that BFT conducted in January; (3) Smith’s
deposition testimony regarding his decision to create the Trainer position;
(4) Smith’s deposition testimony and Coffman’s affidavit regarding the timing

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and reasoning behind Smith’s decision to eliminate the Trainer position; and, (5)
Coffman’s e-mail to the call center announcing that the Trainer position had
been terminated and Leal would not be returning to BFT. The court holds that
BFT has asserted a legitimate non-discriminatory reason for its decision.
      The burden therefore shifted back to Leal to proffer evidence that would
permit a reasonable trier of fact to find that BFT’s proffered reason was a
pretext1 for retaliation for her exercise of FMLA leave. Leal “must reveal a
conflict in substantial evidence on the ultimate issue of retaliation in order to
withstand a motion for summary judgment.” Sherrod v. Am. Airlines, Inc., 132
F.3d 1112, 1122 (5th Cir. 1998) (citing Rhodes v. Guiberson Oil Tools, 75 F.3d
989, 993 (5th Cir. 1996) (en banc)). Evidence is substantial if it is of “such
quality and weight that reasonable and fair minded persons in the exercise of
impartial judgment might reach different conclusions.” Id. (quoting Rhodes, 75
F.3d at 993).
      To satisfy her burden, Leal submitted the following documents, which she
attached to her opposition: (1) BFT’s answer; (2) Coffman’s affidavit;
(3) Coffman’s e-mail stating that BFT’s planned layoffs were complete; (4) BFT’s
motion for summary judgment; and (5) Smith’s deposition testimony stating that
he was not dissatisfied with Leal’s performance. Leal argued that this evidence
showed that BFT had admitted that its planned layoffs were complete and thus
its decision to terminate her position was unrelated to the economy. She also
argued that BFT did not have complaints about her job performance. Finally,
she submits that the temporal proximity between her FMLA leave and BFT’s
adverse employment action demonstrated its discriminatory intent.


      1
         Leal has never asserted that the mixed-motive analysis should apply and has
therefore waived that argument. United States v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010)
(holding that a failure to adequately brief an argument results in waiver).

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      Leal’s proffered evidence does not create a genuine issue of material fact
regarding whether or not BFT’s asserted reason for eliminating the Trainer
position was a pretext for its retaliation against her for taking FMLA leave.
Leal submitted no evidence tending to show that BFT did not actually eliminate
the Trainer position or that it actually conducted a layoff or terminated her for
cause.   Therefore, the e-mail indicating that BFT’s planned layoffs were
complete and its apparent satisfaction with her performance does not cast doubt
on BFT’s proffered explanation that it discontinued the Trainer position at the
company. Leal’s unsupported assertions of BFT’s retaliatory intent also do not
create a conflict in the evidence.
      Leal’s reliance on temporal proximity is similarly insufficient.         BFT
provided evidence that, when Leal requested FMLA leave, Smith and Coffman
had already been discussing BFT’s continued need for a Trainer. Leal has not
disputed this timeline, which undermines her temporal proximity argument.
See Clark Cnty., 532 U.S. at 272–74 (holding that where evidence showed
plaintiff’s supervisor considered transferring plaintiff the day before she was
served with plaintiff’s lawsuit, there was no causal connection showing that the
transfer was retaliatory).
      “[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 [engaged in retaliation].” Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 148 (2000). As the district court
wisely noted, however, a plaintiff who creates “only a weak issue of fact as to
whether the employer’s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had occurred”
cannot survive summary judgment. Id. Leal’s explanations are conclusory and
she has produced no evidence in the record that she was discharged because she

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requested FMLA leave. Because Leal has, at most, created a weak inference of
fact regarding BFT’s proffered reason for her termination, she has not submitted
sufficient evidence to survive summary judgment. The district court properly
granted BFT’s motion.
                               CONCLUSION
      For the reasons set forth above, we AFFIRM the district court’s grant of
summary judgment in favor of BFT.




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