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

                                                 FILED
                                                                             July 1, 2009

                                       No. 08-40325                    Charles R. Fulbruge III
                                                                               Clerk

DARLENE CROUCH

                                                   Plaintiff-Appellant
v.

J C PENNEY CORPORATION, INC.

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                            USDC No. 4:06-CV-00113


Before BARKSDALE, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Darlene Crouch (“Crouch”), the appellant, brought suit against her
employer, J C Penney (“JCP”), the appellee, alleging that she was discharged in
violation of the Family Medical Leave Act, 29 U.S.C. §§ 2601-54 (“FMLA”), and
the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”), and
that JCP is liable for defamation under state law. The district court granted
summary judgment in favor of JCP on all claims. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40325

            I. FACTUAL AND PROCEDURAL BACKGROUND
      Crouch, who was hired by JCP in 1983, suffers from recurring bronchitis,
which required her to take sick leave several times a year. Crouch applied for
and received FMLA approval for her bronchitis-related absences. In August of
2005, Crouch missed seven consecutive days of work for medical absences that,
at the time, neither Crouch nor JCP believed were covered by the FMLA. As a
result of these absences, one of Crouch’s supervisors, Dick Patefield (“Patefield”),
emailed Patricia Grant (“Grant”), another supervisor, expressing concern about
Crouch’s absences. When Crouch returned to work she was put on a
Development Plan (essentially a performance improvement plan), which
indicated that Crouch had failed to report her FMLA leave in a timely manner.
The Development Plan also mentioned several apparently ongoing work
performance-related problems, indicating that Crouch had confronted her staff
without adequately researching their work, and that she did not follow
instructions for implementing new procedures.
      In October of 2005, Crouch had an argument with one of her supervisees,
Ron Smith (“Smith”), over a change in Smith’s work schedule, during which
Smith announced he would no longer read company emails. Crouch reported
Smith’s statement to her supervisors. Smith, in turn, met with Marilyn Ramey
(“Ramey”), a Human Resources (“HR”) employee, and told Ramey that Crouch
raised her voice to employees, told sexually explicit jokes, relayed stories about
family violence including her own violent behavior, and made fun of an employee
who had to use a colostomy bag. Smith also told Ramey that Crouch had picked
up a pocketknife from his desk and pointed it at him in a threatening manner
while instructing him to read a document Crouch had sent him. HR initiated an
investigation and interviewed other agents in Crouch’s department, several of
whom corroborated Smith’s allegations that Crouch yelled, used profanity, was
rude and unprofessional, confronted employees about their behavior aggressively

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and in front of their peers, and told inappropriate stories about violence in her
own family and her own violent behavior. The investigation also concluded that
Smith’s story about the knife was true based on comments that Crouch herself
made to members of HR. Ultimately Crouch’s managers unanimously decided
to terminate her employment. The correspondence between the members of JCP
management involved in the decision reflects no discussion of her medical
condition, her disability or her attendance in the conversations about her
termination, apart from a stray mention of the Development Plan.
      Crouch filed suit in the district court alleging violations of the FMLA and
the ADA, as well as defamation under Texas law. JCP moved for summary
judgment, which the district court granted on all of Crouch’s claims. Crouch
timely appealed.


                         II. STANDARD OF REVIEW
      We review a grant of summary judgment de novo. Stover v. Hattiesburg
Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008). Summary judgment is
appropriate if “the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
All inferences must be construed in favor of the nonmoving party. Casey Enters.,
Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981).




                                III. ANALYSIS
FMLA & ADA
      The FMLA allows eligible employees to take up to 12 weeks of leave from
work in any 12 month period for treatment of a “serious health condition.” 29
U.S.C. § 2612(a)(1)(D). The FMLA also protects employees who take FMLA leave

                                        3
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from retaliation for doing so. Haley v. Alliance Compressor, LLC, 391 F.3d 644,
649 (5th Cir. 2004). When a plaintiff alleges mixed-motive retaliation (i.e., that
discrimination was not the sole reason for discharge but was a motivating
factor), the governing framework is as follows:
      (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. 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.
Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005). The
prima facie case requires a plaintiff to 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.” Id. at 332.
      The parties agree that Crouch was engaged in a protected activity and that
she was discharged, but dispute whether she has established the causal link
element of her prima facie case. Assuming arguendo that Crouch has satisfied
this element, her claim nevertheless fails. JCP has articulated a legitimate, non-
discriminatory reason for the adverse employment action: it received complaints
about Crouch’s managerial skills, conducted an investigation, confirmed that
Crouch’s behavior was at best unprofessional and at worst threatening, and
decided to terminate her for those reasons. Thus Crouch must show either that
this reason is pretextual or that the reason, although true, was only one motive,




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another of which was discrimination.1 The record evidence demonstrates that
JCP undertook a thorough investigation of the complaints made about Crouch,
and the correspondence between the management team members who decided
to terminate her reflects no consideration of the Development Plan or her
reporting or use of FMLA leave. Crouch has therefore failed to raise a genuine
issue of material fact as to whether JCP’s proffered reason for firing her is
pretextual. Under a mixed-motive framework, JCP can defend against liability
by showing that it would have taken the same action in the absence of any
alleged discriminatory animus. In this case the severity of the complaints
against Crouch, the results of the investigation, and the lack of discussion of the
Development Plan or her use of FMLA leave in the conversations regarding her
termination leave no room for a reasonable inference that JCP would not have
fired her but for her exercise of her FMLA rights.
       Crouch’s ADA claim fails for the same reasons. As Crouch acknowledges,
her FMLA and ADA claims rise and fall together, because they employ the same
burden-shifting framework and rely on the same evidence. See Hypes ex rel. v.
First Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998). The district court
properly granted summary judgment on both the FMLA and ADA claims.


Defamation
       Crouch also claims that JCP is liable for defamation under three theories.
She asserts as a first ground that JCP is liable because it had a policy allowing
employees to complain to HR, and therefore Smith was acting in the scope of his
employment when he did so. Under Texas law an employer is liable for



       1
         The Supreme Court’s recent opinion in Gross v. FAL Financial Services, Inc., 2009 WL
1685684 (2009) raises the question of whether the mixed-motive framework is available to
plaintiffs alleging discrimination outside of the Title VII framework. We need not reach this
question, however, because Crouch cannot meet either standard.

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                                      No. 08-40325

defamation if the defamation “falls within the scope of the employee’s general
authority in furtherance of the employer’s business and for the accomplishment
of the object for which the employee was hired.” Minyard Food Stores, Inc. v.
Goodman, 80 S.W.3d 573, 577 (Tex. 2002). In this case, the alleged defamation
took place when an employee (Smith) spoke to his own employer (JCP) about
another employee (Crouch). The Texas Supreme Court has explained that even
when an employer requires employees to discuss other employees in the course
of workplace misconduct investigations, such discussions are not “in furtherance
of the employer’s business and for the accomplishment of the object for which the
employee was hired.” Id. at 577-79.2 If statements made by an employee to his
employer about another employee as part of a required workplace investigation
cannot give rise to defamation for this reason, JCP cannot be liable for
defamation simply because it allowed employees to report misconduct to HR.
       Crouch’s second theory is that JCP is liable for defamation because an HR
employee repeated Smith’s claim about the knife incident. However, under Texas
law an employer has “a conditional or qualified privilege that attaches to
communications made in the course of an investigation following a report of
employee wrongdoing.” Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640,
646 (Tex. 1995). Once an employer asserts this defense in federal court in a case


       2
          As the Texas Supreme Court explained:
        While we agree the evidence demonstrates that [the company’s] policies require
        employees to participate in workplace misconduct investigations-just as [the
        employee] did here-these policies do not demonstrate that [the employee]
        defaming [the plaintiff] to [the manager] during the investigation would further
        [the company’s] business and accomplish a purpose of [the employee’s] job.
        There is a critical distinction between defaming someone to one’s employer and
        defaming someone for one’s employer.
Minyard, 80 S.W.3d at 579 (Tex. 2002) (emphasis added). We also note that the implications
of the plaintiff’s interpretation are highly problematic: it is not only useful but sometimes
legally required that employers provide a method by which employees can bring complaints
of employee misconduct to the employer’s attention, and holding employers liable for
defamation when employees take advantage of these processes would create perverse
incentives.

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                                        No. 08-40325

under Texas law, the plaintiff must prove actual malice to survive summary
judgment. Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 314 (5th Cir. 1995).3
Crouch has not produced any evidence of actual malice: to the contrary, the HR
investigator believed the knife story to be true based on her conversations with
Crouch herself.
       Finally, Crouch argues JCP is liable for defamation due to its “excessive
publication” of the knife story, which would defeat JCP’s qualified privilege as
an employer under Texas law. Randall’s Food Markets, 891 S.W.2d at 646. In
order to show excessive publication, the plaintiff must identify the speaker and
the specific nature of what was said. Ameen v. Merck & Co., 226 F. App’x 363,
371 (5th Cir. 2007) (unpublished) (citing Abbott v. Pollock, 946 S.W.2d 513, 520
(Tex. App.–Austin 1997, writ denied)). Crouch was unable to do so, presenting
only evidence that another employee testified that the story was common
knowledge. This is exactly the kind of “unauthorized gossip” that does not
qualify as excessive publication. See Danawala v. Houston Lighting & Power Co.,
14 F.3d 251, 255 (5th Cir. 1993).


                                    IV. CONCLUSION
       For the foregoing reasons, we AFFIRM the grant of summary judgment.




       3
         Actual malice is “the making of a statement with knowledge that it is false, or with
reckless disregard of whether it is true.” Duffy, 44 F.3d at 313 (quoting Carr v. Brasher, 776
S.W.2d 567, 571 (Tex. 1989)). “Reckless disregard” is “a high degree of awareness of probable
falsity, for proof of which the plaintiff must present ‘sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of his
publication.’” Id. (quoting Carr, 776 S.W.2d at 571). Proof of falsity is not sufficient, nor is a
combination of falsity and general hostility towards the plaintiff. Danawala v. Houston
Lighting & Power Co., 14 F.3d 251, 255 (5th Cir. 1993).

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