     Case: 10-50671 Document: 00511392626 Page: 1 Date Filed: 02/24/2011




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

                                                 FILED
                                                                          February 24, 2011

                                     No. 10-50671                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



RUSSELL D. WARREN,

                                                   Plaintiff-Appellant
v.

TEXAS DISPOSAL SYSTEMS, INCORPORATED;
JIMMY GREGORY;
TEXAS LANDFILL MANAGEMENT, LIMITED LIABILITY
CORPORATION,

                                                   Defendants-Appellees




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:09-CV-510


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Russell D. Warren (“Warren”) appeals the district
court’s order granting Defendants-Appellees, Texas Disposal Systems, Inc.;
Jimmy Gregory; and Texas Landfill Management, LLC’s (collectively “Texas
Disposal”) motion for summary judgment on Warren’s claim of retaliation in


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-50671 Document: 00511392626 Page: 2 Date Filed: 02/24/2011



                                     No. 10-50671
                                   Summary Calendar

violation of the Family Medical Leave Act (the “Act”). Reviewing the record de
novo, Williams v. Wynne, 533 F.3d 360, 365 (5th Cir. 2008), we AFFIRM.
       Retaliation claims under the Act like Warren’s are analyzed using the
familiar McDonnell-Douglas burden shifting framework.                     Hunt v. Rapides
Healthcare Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001). Texas Disposal met its
burden to articulate a legitimate, nondiscriminatory reason for terminating
Warren’s employment.          It adduced evidence that it fired Warren because
(1) Warren misappropriated loads of mulch; (2) Warren misappropriated
herbicide and trees; and (3) Warren falsified his time records. The burden
therefore shifted to Warren “to show by a preponderance of the evidence that
[Texas Disposal’s] articulated reason[s are] pretext for discrimination.” Id. at
332–33.
       Warren contends that a fact issue existed regarding pretext because of: (1)
the temporal proximity of his exercise of his rights under the Act and Texas
Disposal’s adverse employment action; (2) the lack of documented prior work
performance complaints; and (3) his denial of the alleged wrongdoing upon which
the termination was based.1 We disagree. Although temporal proximity may
suffice to establish a prima facie case of discrimination, “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) (internal quotation omitted). The lack of documented prior


       1
          Warren also argues that another employee participated in the alleged
misappropriation of herbicide and trees without being fired, proving that this reason is merely
pretext. Since, Warren has not demonstrated that Texas Disposal’s other proffered reasons
are pretextual, we need not address this argument. See Machinchick v. PB Power, Inc., 398
F.3d 345, 351 (5th Cir. 2005) (“[A] plaintiff relying upon evidence of pretext to create a fact
issue on discriminatory intent falters if he fails to produce evidence rebutting all of a
defendant’s proffered nondiscriminatory reasons.”).

                                              2
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                                 No. 10-50671
                               Summary Calendar

complaints does not rebut Texas Disposal’s reasons for firing Warren because
the incidents in question were recently discovered. And, Warren’s unsupported
belief that he had permission for his acts is not sufficient to create a fact issue
precluding summary judgment. See Roberson v. Alltel Info. Servs., 373 F.3d 647,
654 (5th Cir. 2004).
      AFFIRMED.




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