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

                                                                            FILED
                                                                         October 22, 2007

                                       No. 06-50741                   Charles R. Fulbruge III
                                                                              Clerk

WANDA KAY WOODSON,

                                                   Plaintiff-Appellant,
v.

SCOTT AND WHITE MEMORIAL HOSPITAL,
in its assumed or common name, also known as
Gatesville Scott and White Clinic,

                                                   Defendant-Appellee.


                   Appeal from the United States District Court
                        for the Western District of Texas
                                   6:04-CV-403


Before GARWOOD, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Wanda Kay Woodson (“Woodson”) appeals the district
court’s grant of summary judgment to Defendant-Appellee Scott and White
Memorial Hospital (“Scott and White”). Finding no reversible error, we affirm.
                                              I.
       Woodson worked for Scott and White from 1996 until her termination in
2003. Prior to her termination, Woodson served as a “charge nurse,” supervising


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-50741

other nurses and personnel. Woodson’s immediate supervisor at this time was
Brian Rugh.
      On November 11, 2003, Rugh issued Woodson a “final warning.” The final
warning alleged that Woodson had used the computer of a co-worker without
consent, had looked at the co-worker’s e-mails, printed at least one e-mail from
the co-worker’s account, showed the e-mail to two employees, and told those
employees that she thought Rugh and the co-worker had an affair. Woodson
denies these allegations. Upon receiving the warning, Woodson became very
emotional and was given the remainder of the day off. Woodson claims that at
that time she suffered severe anxiety and a panic attack, which led her to suffer
from depression. Woodson did not return to work, and provided two doctor’s
notes excusing her absence.
      Scott and White claim that after Woodson left work, two employees
reported that she continued to gossip. Further, Scott and White performed an
audit of Woodson’s access to medical records, which showed that Woodson had
accessed the medical records of herself and a number of other employees. Such
access was in violation of Scott and White’s medical records policy. Woodson
denies that she continued to gossip. She also claims that she never accessed
other employees’ medical records and that it was not unusual for other nurses
to use Woodson’s password to access files without Woodson’s permission.
      On November 18, 2003, Rugh called Woodson and informed her that she
had been terminated. Woodson’s termination letter indicated that she was
terminated because of unprofessional behavior and violation of the medical
records access policy. Woodson claims that she had already requested that Scott
and White send Family and Medical Leave Act (“FMLA”)1 paperwork to her
doctor, and that on November 17, 2003, Woodson had informed Rugh that she



      1
          29 U.S.C. § 2601, et seq. (2000).

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was under the care of a psychiatrist and could not come into work. Scott and
White claims that it did not receive her application for leave until November 19,
2003, the day after her termination.
      Woodson filed suit alleging that Scott and White terminated her in
retaliation for applying for FMLA leave; discriminated against her under the
Americans with Disability Act; and discriminated against her under the Texas
Commission on Human Rights Act.            The district court granted summary
judgment to Scott and White on all three claims. Woodson appeals only the
dismissal of her FLMA retaliation claim.
                                       II.
      Woodson alleges that Scott and White retaliated against her by
terminating her in response to her request for FMLA leave. See 29 U.S.C. §
2615(a)(1)-(2). To establish a prima facie case of retaliation under the FMLA,
Woodson must show that: (1) she was protected under the FMLA; (2) she
suffered an adverse employment decision; and either (3a) 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). If Woodson
succeeds in making a prima facie case, the burden shifts to Scott and White to
articulate a legitimate nondiscriminatory or nonretaliatory reason for the
employment action. Id. Once Scott and White has done so, Woodson must show
by a preponderance of the evidence that Scott and White’s reason is a pretext for
retaliation. Id. Ultimately, Woodson must demonstrate that but for filing for
FMLA leave, she would not have been terminated. Seaman v. CPSH, Inc., 179
F.3d 297, 301 (5th Cir. 1999).
      Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate when the record discloses that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter of law. FED R. CIV.

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P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). It is not disputed that
Woodson has satisfied the first two prongs of a prima facie case of retaliation.
So, in order to prevail on its motion for summary judgment, Scott and White has
the burden of proving that Woodson did not satisfy either prong 3(a) or 3(b) of
the Hunt test or that Woodson did not raise an issue of material fact as to
whether its alleged reasons for discharging her were a reason for pretext. The
district court granted summary judgment for Scott and White on the grounds
that Woodson cannot establish a prima facie case of retaliation, and that, even
if she could, she cannot prove that the reasons that Scott and White claim as the
basis for her dismissal were merely a pretext for retaliation. This court reviews
de novo a district court’s grant of summary judgment, applying the same legal
standards as the district court. Allstate Ins. Co. v. Disability Servs. of the Sw.
Inc., 400 F.3d 260, 262-63 (5th Cir. 2005).
      The parties dispute whether Woodson has established the third prong of
a prima facie case of retaliation. But, even assuming that Woodson has stated
a prima facie case, her claim must fail because none of the evidence in the record
rebuts Scott and White’s legitimate, non-retaliatory reasons for terminating
Woodson.
      Scott and White demonstrated that Woodson was already at risk for
termination due to the final warning she received on November 11, 2003. The
final warning was given before Woodson requested that FMLA paperwork be
sent to her doctor and before the date that she alleges Rugh was told that she
was applying for FMLA leave. Further, Scott and White proffers that Woodson
was fired because she accessed another employee’s e-mail, acted unprofessionally
by gossiping, and violated the medical records access policy. Scott and White has
met its burden of producing a legitimate, non-retaliatory reason for Woodson’s
discharge. See Nasti v. Ceiba Specialty Chems., 492 F.3d 589, 593 (5th Cir.
2007) (“The employer is not required to convince the Court that it was actually

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motivated by the [proffered] reason; it need only raise a genuine issue of fact as
to whether or not it discriminated against the plaintiff.”).
      Accordingly, Woodson must raise a genuine issue of material fact as to
whether this explanation is merely pretext, such that a reasonable fact-finder
could infer discrimination. Id. at 593-94. A plaintiff can establish pretext
“either through evidence of disparate treatment or by showing that the
employer’s proffered explanation is false or unworthy of credence.” Laxton v.
Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003). The pretext inquiry focuses on the
authenticity of the employer’s proffered reasons.
      Woodson argues that the close temporal proximity between her request for
FMLA leave and her dismissal indicates pretext. Woodson also argues that
summary judgment was inappropriate because she disputes the events
underlying her termination. However, these arguments do not create an issue
of pretext. “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.” McCoy v. City of Shreveport, 492 F.3d 551,
562 (5th Cir. 2007). Woodson has not done so; Woodson’s evidence does not
rebut Scott and White’s explanation for why Woodson was fired nor does it
connect her dismissal to her request for FMLA leave. Although Woodson
disputes the truth of the facts underlying her termination, she has not
demonstrated that Scott and White knew the allegations were untrue. In a
retaliation case, “even an incorrect belief that an employee’s performance is
inadequate constitutes a legitimate, nondiscriminatory reason” for making an
employment decision.” Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th
Cir. 1995). Further, her termination was based, in part, on a final warning that

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she received prior to any request for FMLA leave. Viewing all the evidence in
Woodson’s favor, the record shows that Scott and White believed that Woodson
acted unprofessionally and violated e-mail and medical records policies and that
she was terminated for that reason. Based on this record, we find that a
reasonable juror could not conclude that Woodson was terminated because of her
request for FMLA leave.
                                      III.
      For the reasons stated above, we AFFIRM.




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