     Case: 10-30633 Document: 00511441458 Page: 1 Date Filed: 04/11/2011




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

                                                 FILED
                                                                            April 11, 2011

                                     No. 10-30633                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



SERENA ADCOCK,

                                                          Plaintiff - Appellant

v.

SUNQUEST PROPERTIES INCORPORATED,

                                                          Defendant - Appellee




                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:08-CV-962


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       Appellant Serena Adcock appeals the district court’s grant of summary
judgment to Appellee Sunquest Properties, Inc. on her pregnancy discrimination
claims. The district court held that Adcock failed to show discrimination in
violation of the Pregnancy Discrimination Act (“PDA”), 42 U.S.C. § 2000e et seq.,



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                  No. 10-30633


and awarded $17,212.20 in attorney’s fees to Sunquest. We AFFIRM the
summary judgment, but REVERSE the attorney’s fee award.
      Serena Adcock was hired in 2005 to serve as the manager for Southern
Oaks, an apartment complex owned and managed by Sunquest Properties, Inc.
(“Sunquest”). Nearly two years later, knowing Adcock was pregnant, Kathryn
Burkett, Adcock’s supervisor, promoted Adcock to manage a larger complex.
Adcock received a $6,000 annual salary increase in tandem with her promotion.
      After Adcock was promoted to the Ashton Pines property, Burkett began
receiving complaints from a number of different sources about Adcock’s job
performance. Upon learning of these complaints, Burkett spoke with Sunquest’s
comptroller about Adcock’s performance, who agreed Adcock should be
terminated. On August 16, 2007, Burkett advised Adcock and Mandy Lindsey,
a personal acquaintance whom Adcock had hired as her assistant manager, that
they were fired. Adcock subsequently filed suit, alleging gender and pregnancy
discrimination in violation of federal law. The district court granted Sunquest’s
motion for summary judgment and, finding Adcock’s claims frivolous, awarded
Sunquest $17,212.20 in attorney’s fees. Adcock timely appealed both rulings.
      We review rulings on motions for summary judgment de novo, applying
the same standard as the district court. King v. Ill. Cent. R.R., 337 F.3d 550, 553
(5th Cir. 2003). A court may only grant summary judgment if there is no
genuine issue of material fact, such that the moving party is entitled to
judgment as a matter of law. F ED. R. C IV. P. 56(a). “In determining whether
summary judgment is appropriate, all of the evidence introduced and all of the
factual inferences from the evidence are viewed in a light most favorable to the
party opposing the motion and all reasonable doubts about the facts should be
resolved in favor of the nonmoving party.” Terrebonne Parish Sch. Bd. v. Mobil
Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).


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      We review the district court’s decision to award attorney’s fees under
42 U.S.C. § 2000e-5(k) for abuse of discretion. See Fox v. Vice, 594 F.3d 423, 426
(5th Cir. 2010). The findings of fact are reviewed for clear error and conclusions
of law are reviewed de novo. Id.
      The Pregnancy Discrimination Act (PDA) prohibits employers from
discriminating against a female employee on the basis of the employee's
pregnancy. 42 U.S.C. § 2000e(k). In order to establish a prima facie case of
discrimination, an employee must show (1) she was a member of a protected
class; (2) she was qualified for the position she lost; (3) she was fired; and
(4) that other similarly situated employees were more favorably treated, or that
she was replaced by a person who is not a member of the protected class. Bauer
v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999); Urbano v. Cont’l Airlines,
Inc., 138 F.3d 204, 206 (5th Cir. 1998). It is undisputed that Adcock belonged
to a protected class, that she was terminated, and that she was replaced by a
person who was not pregnant. As to the second element, Adcock argues that the
district court erred in finding she was not qualified for the management position
at Ashton Pines.   Assuming, arguendo, Adcock has established a prima facie
case, we nevertheless affirm the district court’s summary judgment ruling
because Sunquest has offered legitimate, nondiscriminatory reasons for
terminating Adcock’s employment and Adcock has failed to offer sufficient
evidence of pretext or discriminatory intent.
      There were a number of performance-related reasons for terminating
Adcock’s employment. Sunquest had received a number of complaints from
tenants regarding their inability to contact Adcock during office hours, either
because the phones were forwarded to an answering service or because the office
doors were locked. Burkett testified that she received reports that Adcock was
failing to perform other tasks, like providing appropriate work orders to the


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maintenance crew and updating the apartment’s vacancy board. Finally, Adcock
wrongfully accused another employee of stealing a company credit card and
screamed at him in the main office using some inappropriate language. These
represent sufficient, nondiscriminatory reasons for Adcock’s termination.
        Adcock attempts to show that these reasons were pretextual by identifying
two allegedly discriminatory comments made to Adcock by Burkett. The first
occurred before Adcock’s promotion when Burkett inquired whether the presence
of mold at Ashton Pines would present any health problems for Adcock. Adcock
responded that the mold would not be a problem. Later, sometime after Adcock
arrived at Ashton Pines, Burkett asked Adcock whether she was capable of
“handling” the stairs at Ashton Pines, which were more numerous there than at
Southern Oaks. Adcock responded that she would have no trouble navigating
them.
        In order for workplace comments to provide evidence of discrimination,
they must be (1) related to the protected class of persons of which the plaintiff
is a member; (2) proximate in time to the adverse employment decision; (3) made
by an individual with authority over the employment decision at issue; and
(4) related to the employment decision at issue. Patel v. Midland Mem’l Hosp.
& Med. Ctr., 298 F.3d 333, 343-44 (5th Cir. 2002) (quoting Rubinstein v. Adm’rs
of Tulane Educ. Fund, 218 F.3d 392, 400-01 (5th Cir. 2000)). Here, the first
comment regarding the mold at Ashton Pines was communicated to Adcock
before she was promoted to manage the Ashton Pines complex and given a
$6,000 annual salary increase. Accordingly, the comment is, as a matter of law,
neither “proximate in time” nor “related to” Adcock’s termination. The second
comment regarding the stairs is similarly unavailing since it neither indicates
discriminatory intent nor relates to Adcock’s termination.       In fact, Adcock
admitted that once she told Burkett that she would have no trouble with the


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stairs, Burkett never broached the subject again. The inquiry alone, without
more, lacks probative value on the issue of discriminatory intent.
      Adcock’s attempts to prove discrimination are undermined as well by
evidence that Mandy Lindsey, who was not pregnant at the time of her
employment with Sunquest, was fired at the same time as Adcock. What’s more,
Adcock testified that another employee, who was on maternity leave while
Adcock was employed at Ashton Pines, returned to Sunquest following her
pregnancy. Taking these facts together, Adcock has failed to create any fact
issue as to pretext, and we thus affirm the district court’s summary judgment.
      Adcock also argues that the district court erred in awarding Sunquest
$17,212.20 in attorney’s fees.     We agree.    Attorney’s fees for prevailing
defendants in Title VII actions are presumptively unavailable unless a showing
is made that the underlying civil rights suit was vexatious, frivolous, or
otherwise without merit. Dean v. Riser, 240 F.3d 505, 508 (5th Cir. 2001). Since
there is no evidence that the case was brought in bad faith or litigated in a
vexatious manner, we must determine whether Adcock’s action was sufficiently
frivolous to justify an award of attorney’s fees to Sunquest.
      To determine whether a case is frivolous, the court must ask whether “the
case is so lacking in arguable merit as to be groundless or without foundation
rather than whether the claim was ultimately successful.” Stover v. Hattiesburg
Pub. Sch. Dist., 549 F.3d 985, 997-98 (5th Cir. 2008) (quoting Jones v. Tex. Tech
Univ., 656 F.2d 1137, 1145 (5th Cir. 1981)).         While Adcock’s suit was
appropriately dismissed on summary judgment, the district court abused its
discretion in finding that the case was so groundless as to warrant the award of
attorney’s fees.   Adcock arguably satisfied the prima facie elements of a
discrimination claim, and raised at least plausible arguments as to why
Sunquest’s legitimate, nondiscriminatory reasons for terminating her were


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pretextual. While the district court was correct in ultimately finding them
insufficient to create a fact issue for the jury, we do not believe Adcock’s case was
sufficiently deficient to warrant an award of attorney’s fees.
      Consequently, we AFFIRM the summary judgment, but REVERSE the
award of attorney’s fees.




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