     Case: 15-60166      Document: 00513220808         Page: 1    Date Filed: 10/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 15-60166                                FILED
                                  Summary Calendar                        October 6, 2015
                                                                           Lyle W. Cayce
                                                                                Clerk
ROBERT R. MCCOLLUM,

              Plaintiff - Appellant

v.

PUCKETT MACHINERY COMPANY,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:13-CV-439


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
       In this employment discrimination case, Plaintiff-Appellant Robert
McCollum (“McCollum”) appeals (1) the district court’s denial of his motion to
compel discovery responses and (2) the district court’s grant of the motion for
summary judgment filed by Defendant-Appellee Puckett Machinery Company
(“Puckett”). 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                          I. Facts & Proceedings
      McCollum worked for Puckett as a corporate sales manager.               In
December 2011, McCollum was diagnosed with prostate cancer and informed
Puckett that he would need to miss work for two separate medical procedures:
One scheduled for February 2012 and the other scheduled for early March
2012. Puckett approved McCollum’s request for time off. After undergoing the
first procedure, McCollum returned to work without incident. McCollum was
scheduled to give a presentation at Puckett’s annual sales kickoff meeting a
month or so later, on February 28, 2012, which was a week before his scheduled
second procedure.    The night before the presentation, McCollum took an
Ambien and consumed several glasses of wine. The next morning, McCollum
arrived late to the sales meeting and, because he appeared intoxicated,
Hastings Puckett (“Hastings”), the president of Puckett, pulled him out of the
meeting and transported him to a medical clinic for alcohol testing. McCollum
took two tests over an hour and his blood alcohol level tested at .184 and .169.
Hastings escorted McCollum home and told him to rest until his procedure,
which was scheduled for the following Monday.
      The day after his procedure, March 6, 2012, McCollum called Hastings
to discuss the incident. Hastings informed him that “there would be no moving
forward” with Puckett and later emailed him a severance package offer, which
McCollum did not accept. Approximately one month later, on April 3, 2012,
Puckett withdrew the proposed severance package and sent McCollum his final
paychecks. At some unspecified date after his termination, another Puckett
employee suggested to McCollum that he had been terminated because his
medical care would increase the cost of Puckett’s self-insured employee
healthcare plan.     On September 17, 2012, McCollum filed a charge of
employment discrimination with the EEOC.         His charge was accepted on
September 24, 2012 and he received his right-to-sue letter on August 20, 2013.
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      After receiving his right-to-sue letter, McCollum filed a lawsuit in
district court claiming that Puckett’s termination of his employment violated
the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act
(“FMLA”). Puckett filed a motion for summary judgment, which the district
court granted. The district court (1) dismissed his ADA claim as untimely
because McCollum filed his charge with the EEOC more than 180 days after
his termination and (2) dismissed his FMLA interference and retaliation
claims because McCollum failed to present evidence that would demonstrate
that Puckett’s stated reason for terminating him – attending the sales meeting
while intoxicated – was pretextual and that the true reason was
discriminatory. McCollum filed a timely notice of appeal, contending that the
district court erred in (1) denying his motion to compel discovery responses and
(2) granting Puckett’s motion for summary judgment.
                                      II. Discussion
A.    Motion to compel
      McCollum claims that the district court abused its discretion in denying
his motion to compel discovery responses. We review the denial of a motion to
compel discovery for abuse of discretion, 1 mindful that a district court is
afforded “broad discretion when deciding discovery matters.” 2
      The facts are as follows. The parties, in contravention of the court’s
discovery deadline of October 19, 2014, and Southern District of Mississippi
Local Rule 7(b)(2)(B), mutually agreed to take depositions on November 19 and
20, 2014 – almost a month after the court-ordered discovery deadline and only
a few weeks prior to the court-ordered motions deadline of December 9, 2014.
During the depositions, McCollum obtained testimony which suggested that



      1   Barrett v. Indep. Order of Foresters, 625 F.2d 73, 75 (5th Cir. 1980).
      2   Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 261 (5th Cir. 2011).
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Puckett had not terminated other employees for violating its drug and alcohol
policy. Claiming that records of these incidents were relevant to his contention
that the true reason Puckett fired him is his disability, McCollum first
requested that Puckett provide further information about these incidents on
December 7, 2012 – two days before the motions deadline. On December 9,
2012, Puckett filed its motion for summary judgment. On December 31, 2012,
Puckett informed McCollum that it would not provide any further information
because the discovery deadline had passed. On January 9, 2013 – a month
after the court-ordered motions deadline – McCollum filed a motion to compel
discovery, claiming that Puckett had failed to supplement its responses to
include the incidents referred to during the depositions; i.e., that other Puckett
employees had not been terminated for failing drug or alcohol tests. That same
day, McCollum also filed his opposition to Puckett’s motion for summary
judgment. The district court denied McCollum’s motion to compel, explaining
that the parties’ informal agreement to extend discovery deadlines was not
binding on the court and undertaken at their own risk.
       We agree with the district court’s reasoning. 3 Even if we were to accept
McCollum’s contention that the discovery he sought by means of his motion to
compel might have enabled him to survive summary judgment, our precedent
suggests that a district court is within its discretion to deny a motion to compel
filed on or after the court-ordered discovery deadline—regardless of the
requested discovery’s value to the party’s case. 4 Here, McCollum filed his



       3  See Squyres v. Heico Cos., 782 F.3d 224, 239 (5th Cir. 2015) (“[T]he district court was
not bound by the parties’ agreement and instead had ‘broad discretion to preserve the
integrity and purpose of the pretrial order.’” (citations omitted)).
        4 See Grey v. Dallas Indep. Sch. Dist., 265 F. App’x 342, 348 (5th Cir. 2008) (per

curiam) (citing Turnage v. Gen. Elec. Co., 953 F.2d 206, 209 (5th Cir. 1992) (affirming the
district court’s denial of a motion for inspection and noting that the imminence of trial, the
impending discovery deadline, and the party’s failure to request the inspection earlier were
all suitable reasons to deny the motion – even if the requested inspection would have helped
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                                       No. 15-60166
motion to compel approximately two-and-a-half months after the court-ordered
discovery deadline, and a month after the court-ordered motions deadline. 5 We
are satisfied that the district court did not abuse its discretion in denying
McCollum’s untimely motion to compel discovery responses.
B.     Summary judgment – ADA claim
       McCollum contends that the district court erred in dismissing his ADA
claim as untimely. “We review a district court’s grant or denial of summary
judgment de novo, applying the same standard as the district court.” 6
Summary judgment is proper “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.” 7 A factual issue is “genuine” if the evidence is sufficient for a
reasonable jury to return a verdict for the non-moving party, and “material” if
its resolution could affect the outcome of the action. 8 We construe all facts and
inferences in the light most favorable to the non-moving party when reviewing
a summary judgment. 9
       “The ADA prohibits an employer from discriminating against a ‘qualified
individual with a disability on the basis of that disability.’” 10 Title I of the ADA



the party’s case))); Days Inn Worldwide, Inc. v. Sonia Invs., 237 F.R.D. 395, 398-99 (N.D. Tex.
2006) (denying party’s motion to compel and noting that although the discovery sought
appeared relevant, “this factor has not generally been considered by courts, and the alleged
importance of the documents appears inconsistent with the delay in seeking the
documents.”).
        5 Although Federal Rule of Civil Procedure 37 does not contain a deadline for filing a

motion to compel, Rule 16(b) permits the court to issue a scheduling order that sets deadlines
in a case. Most courts rely on the discovery deadline, rather than the motions filing deadline,
to determine whether a motion to compel is timely filed. Days Inn Worldwide, 237 F.R.D. at
397-98. Because McCollum filed his motion to compel after the discovery and motions
deadlines, his motion is untimely under either test.
        6 Robinson v. Orient Marine Co., 505 F.3d 364, 365 (5th Cir. 2007).
        7 Fed. R. Civ. P. 56(a).
        8 Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007).
        9 Id.
        10 EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014) (quoting 42 U.S.C. §

12112(a)).
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requires that claimants file a charge with the EEOC as a prerequisite to filing
suit in federal court within 180 days of the alleged unlawful employment
practice. 11 On appeal, McCollum contends that because he was unaware that
his discharge was discriminatory at the time of his termination, the court erred
in using March 6, 2012 – the date of his termination – to compute the statute
of limitations. Our precedent forecloses his theory, as we have repeatedly held
that “the limitations period starts running on the date the discriminatory act
occurs,” not when a claimant first perceives that a discriminatory motive might
have caused the act. 12 The district court did not err in ruling that the charge
McCollum filed with the EEOC was untimely and thus he was barred from
raising his claim in federal court.
       In the alternative, McCollum contends that the court should have
equitably tolled the 180-day statute of limitations. We review a district court’s
decision regarding equitable tolling for abuse of discretion. 13 “Equitable tolling
is to be applied ‘sparingly,’” 14 and only in “‘rare and exceptional
circumstances.’” 15 McCollum contends that because of information learned
after his termination – specifically (1) another employee told him that Puckett
terminated his employment because of the medical costs associated with
treating his cancer and (2) deposition testimony that several Puckett



       11   42 U.S.C. § 12117(a); § 2000e-5(e)(1); see Dao v. Auchan Hypermarket, 96 F.3d 787,
789 (5th Cir. 1996) (Title I of the ADA incorporates Title VII’s administrative prerequisites
for filing suit in federal court).
         12 Merrill v. S. Methodist Univ., 806 F.2d 600, 605 (5th Cir. 1986); see, e.g., Pacheco v.

Rice, 966 F.2d 904, 906 (5th Cir. 1992) (“To allow plaintiffs to raise employment
discrimination claims whenever they began to suspect their employers had illicit motives
would effectively eviscerate the time limits prescribed for filing such complaints.”); Chapman
v. Homco, 886 F.2d 756, 758 (5th Cir. 1989) (same).
         13 Agenbroad v. McEntire, 595 F. App’x 383, 389 (5th Cir. 2014) (per curiam).
         14 Granger v. Aaron’s, Inc., 636 F.3d 708, 712 (5th Cir. 2011) (quoting Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)).
         15 Harris v. Boyd Tunica, Inc., 628 F.3d 237, 239 (5th Cir. 2010) (quoting Teemac v.

Henderson, 298 F.3d 452, 456 (5th Cir. 2002)).
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                                       No. 15-60166
employees were not terminated for violating Puckett’s drug and alcohol policy
– the district court should have equitably tolled the statute of limitations. We
have held that an employer’s intentional concealment of facts giving rise to an
ADA claim justifies equitable tolling. 16 But McCollum does not cite any record
evidence that would support concluding that Puckett intentionally concealed
facts supporting his claim. We are therefore satisfied that the district court
did not abuse its discretion in declining to equitably toll the statute of
limitations. 17
       Even assuming arguendo that the court erred in declining to toll the
statute of limitations and reach the merits of McCollum’s ADA claim, our
review of the record satisfies us that his claim does not survive summary
judgment. When a plaintiff offers circumstantial evidence, as in this case, to
prove a violation of the ADA, we apply the McDonnell Douglas burden-shifting
framework. 18 Under this framework, the plaintiff must first make out a prima
facie case of discrimination: (1) He is disabled, (2) he is qualified for his job, (3)
he was subjected to an adverse employment action on account of his disability
and (4) he was replaced by or treated less favorably than non-disabled
employees. Once the plaintiff makes his prima facie case, the burden shifts
back to the employer to “articulate a legitimate non-discriminatory reason for
the adverse employment action.” 19 The burden then shifts back to the plaintiff
to show that the articulated reason is pretextual. 20 “A plaintiff may establish


       16  Granger, 636 F.3d at 712.
       17  McCollum also claims that because the EEOC accepted his charge, this suggests
that the district court erred in dismissing his claim as untimely. Our precedent forecloses
his theory, because we have held that the district court has an independent obligation to
determine a claimant’s compliance with the statute of limitations. Kirkland v. Big Lots Store,
Inc., 547 F. App’x 570, 573 (5th Cir. 2013) (per curiam); Chappell v. Emco Mach. Works Co.,
601 F.2d 1295, 1304 (5th Cir. 1979).
        18 EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009).
        19 Id.
        20 Id.

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                                     No. 15-60166
pretext ‘by showing that a discriminatory motive more likely motivated’ her
employer’s decision, such as through evidence of disparate treatment, ‘or that
[her employer’s] explanation is unworthy of credence.’” 21
      Both parties appear to agree that McCollum presents a prima facie case
of ADA discrimination. Assuming arguendo that he does, we are nevertheless
satisfied that he cannot show that Puckett’s proffered reason for his
termination – that he attended the February 28, 2012 sales meeting while
intoxicated – is pretextual. McCollum points to his clean work history and
deposition testimony that “a dozen or so” unnamed Puckett employees had
violated the drug and alcohol policy but were not terminated as evidence
tending to show that Puckett’s proffered reason is pretextual. But, McCollum
does not provide any detail about the circumstances surrounding these
violations that would establish disparate treatment and thus pretext.
      Our precedent is clear that for a plaintiff to show disparate treatment,
he must demonstrate that the misconduct for which he was discharged is
“nearly identical” to that engaged in by an employee outside of his protected
class whom the employer retained. 22 McCollum does not present any evidence
that the unnamed employees who were not terminated for drug or alcohol
infractions engaged in nearly identical conduct to that for which he was
terminated – attending a sales meeting at which he was scheduled to give a
presentation while intoxicated. Neither does McCollum adduce any evidence
that those unnamed employees were outside of his protected class. Because
McCollum failed to adduce evidence suggesting that Puckett’s proffered reason
for terminating him was pretextual, we conclude that granting summary
judgment on his ADA claim was also proper on the merits.


      21  Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001) (alteration in
original) (citation omitted).
       22 Id. at 221(internal quotation marks and citations omitted).

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                                       No. 15-60166
C.     Summary judgment – FMLA interference and retaliation claims
       McCollum contends that the district court erred in granting summary
judgment on his claim that Puckett interfered with his right to reinstatement
and retaliated against him in violation of the FMLA. Congress enacted the
FMLA to permit eligible employees “to take reasonable leave for medical
reasons.” 23 “The FMLA contains both prescriptive provisions that create a
series of entitlements or substantive rights and proscriptive provisions that
protect employees from retaliation or discrimination based on their exercise of
those rights.” 24 McCollum’s claims implicate both: He asserts that Puckett
interfered with his reinstatement and that Puckett retaliated against him for
taking FMLA leave.            The same burden-shifting analysis applicable to
McCollum’s ADA claims is applicable to his claims under the FMLA. 25
       We begin with McCollum’s claim that Puckett interfered with his right
to reinstatement in violation of the FMLA. When the employee returns timely,
the employer must reinstate him “to the same position as previously held or a
comparable position with equivalent pay, benefits, and working conditions.” 26
To establish a prima facie case of interference, McCollum had to show that (1)
he was an eligible employee, (2) Puckett was subject to the FMLA’s
requirements, (3) he was entitled to leave, (4) he gave Puckett proper notice of
his intention to take FMLA leave, (5) Puckett interfered with the benefits to
which he was entitled under the FMLA, and (6) he was prejudiced as a result. 27
The fifth element – whether Puckett interfered with rights to which McCollum



       23  Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 372 (5th Cir. 2008)
(citing 29 U.S.C. § 2601(b)(2)).
        24 Shirley v. Precision Castparts Corp., 726 F.3d 675, 681 (5th Cir. 2013).
        25 Richardson v. Monitronics Int’l., Inc., 434 F.3d 327, 332 (5th Cir. 2005).
        26 Cuellar v. Keppel Amfels, L.L.C., 731 F.3d 342, 345 (5th Cir. 2013) (per curiam)

(quoting Smith v. E. Baton Rouge Parish Sch. Bd., 453 F.3d 650, 651 (5th Cir. 2006)).
        27 Lanier v. Univ. of Tex. Sw. Med. Ctr., 527 F. App’x 312, 316 (5th Cir. 2013) (per

curiam).
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was entitled under the FMLA – is the only element in dispute.                      Puckett
contends that it did not interfere with any right to which McCollum was
entitled because he was terminated for attending the sales meeting while
intoxicated – which Puckett asserts is a legitimate, non-discriminatory reason.
The burden thus shifts back to McCollum to demonstrate that Puckett’s stated
reason is pretextual. McCollum cites the same evidence as he did with his ADA
claim: his clean work record and testimony that several unnamed Puckett
employees were not terminated after violating the drug and alcohol policy. 28
       We are satisfied that the district court did not err in ruling that
McCollum’s proffered evidence does not tend to show that Puckett’s stated
reason for failing to reinstate him was pretextual. McCollum acknowledged in
his deposition that he was fired for being intoxicated. 29 And, as discussed
previously, the deposition testimony that several unnamed employees had
violated Puckett’s drug and alcohol policy but had not been terminated does
not create a genuine dispute of material fact as to whether Puckett’s stated
reason for terminating McCollum was pretextual. This is because it lacks
sufficient detail about the incidents.            We are satisfied the district court
correctly dismissed his FMLA interference claim.
       We conclude by reviewing McCollum’s claim that the district court erred
in dismissing his FMLA retaliation claim. To establish a prima facie case of
retaliation under the FMLA, McCollum must show the following: (1) He was
protected under the FMLA, (2) he suffered an adverse employment action, and



       28  McCollum explains that he had consumed more prescription Ambien than usual,
unknowingly consumed more wine than expected, and is diagnosed with a medical condition
known as “open LES” which can affect the accuracy of a Breathalyzer test. Regardless of the
reasons underlying his intoxication, McCollum does not dispute that he was intoxicated on
the date of the incident in violation of Puckett’s workplace alcohol policy.
        29 See Shirley, 726 F.3d at 683 (affirming district court’s grant of summary judgment

on plaintiff’s FMLA reinstatement claim where the plaintiff had been terminated for
violating the employer’s drug policy).
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(3) he was treated less favorably than an employee who had not requested
FMLA leave or the adverse decision was made because he sought protection
under the FMLA. 30             The same burden-shifting analysis discussed above
applies. The parties assume that McCollum presents a prima facie case, and
McCollum’s disagreement with the district court’s ruling relies on the same
point that we noted above: Puckett’s stated reason is pretextual because other
employees were not terminated for violating Puckett’s drug and alcohol policy.
And, for substantially the same reasons explained above, we hold that the
district court correctly ruled that McCollum did not present any evidence from
which a reasonably jury could infer that Puckett’s proffered reason for his
termination is pretextual and the true reason is retaliatory.
                                       III. Conclusion
         For the foregoing reasons, the judgment of the district court is, in all
respects, AFFIRMED.




         30   Mauder v. Metro. Transit Auth. of Harris Cty., Tex., 446 F.3d 574, 583 (5th Cir.
2006).
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