United States Court of Appeals Fifth Circuit F I L E D REVISED JANUARY 26, 2006 December 21, 2005 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 05-10346
PAMELA RICHARDSON
Plaintiff - Appellant versus
MONITRONICS INTERNATIONAL, INC.
Defendant - Appellee
Appeal from the United States District Court for the Northern District of Texas
Before REAVLEY, DAVIS and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant Pamela Richardson sued Defendant-Appellee
Monitronics International, Inc. (“Monitronics”), alleging that she
was fired in retaliation for exercising her rights under the Family
and Medical Leave Act (“FMLA”).1 The parties consented to a trial
before a magistrate judge, who eventually granted Monitronics’s
motion for summary judgment and dismissed Richardson’s action. We
affirm.
1 29 U.S.C. § 2601 et seq. I. FACTS AND PROCEEDINGS
A. Background
From July of 2000 until October of 2002, Richardson worked in
the customer service department of Monitronics, a monitoring
company for residential and commercial alarm systems. This is the
second FMLA suit that Richardson has filed against Monitronics.
1. The First Suit
In January 2001, Richardson’s physician diagnosed her as
suffering from carpal tunnel syndrome. She applied for FMLA leave,
but Monitronics denied her request because she had not yet worked
for Monitronics for one year, which is necessary for an employee to
be entitled to FMLA leave. Consequently, Richardson took a two-
month paid leave under Monitronics’s occupational injury program.
In addition to her two-month leave under that program, Richardson
accumulated 12 absences and 22 tardies during the first four months
of 2002. As a result of her attendance record, Monitronics
suspended Richardson and issued her a warning for her attendance
problems.
In April 2002, Richardson successfully applied for and was
granted FMLA leave. During her absence, Monitronics implemented a
new software program. When Richardson returned from leave,
Monitronics restored her to the same job title, rate of pay, and
position that she had when she took leave. Monitronics, however,
prohibited Richardson from working overtime on weekends until she
2 was trained on the new software program. Once Richardson completed
the training, Monitronics permitted her to work overtime.
In September 2002, Richardson sued Monitronics for violating
her rights under the FMLA. Specifically, Richardson alleged that
(1) Monitronics unlawfully denied her FMLA leave from January to
March 2002 and unlawfully disciplined her for absences incurred
during that period, and (2) Monitronics restricted her ability to
work overtime in retaliation for taking FMLA leave. The district
court found no violation of Richardson’s FMLA rights, and we
affirmed.
2. Chronological Background Underlying the Present Suit
a. April 2003: Oral Warning
Richardson continued to have attendance problems in addition
to those at issue in her first lawsuit. In April 2003 alone,
Richardson incurred four absences and five tardies. As a result,
her supervisor, Demekia Green, issued Richardson an oral warning.
b. The New Monitronics Time and Attendance Policy
In May 2003, Monitronics instituted a new employee-attendance
policy embodying a rolling 180-day period to evaluate employee
attendance. Under this policy, one absence or two tardies
constitutes an “occurrence.” The policy specifies that arriving
late, leaving early, exceeding a scheduled break, and violating the
dress code count as “tardies.” If, in any 180-day period, an
employee incurs an “occurrence,” Monitronics issues an oral
3 warning; two “occurrences” result in a written warning; three
“occurrences” warrant a final warning; and four “occurrences” are
cause for termination. The policy expressly states that employees
may not leave work early without a supervisor’s approval, and that
employees must request supervisory approval to be absent from work
at least 48 hours in advance. FMLA leave is not considered an
occurrence for the purposes of the attendance policy.
c. May 2003: Written Warning
Early in May 2003, Richardson incurred four “tardies” —— May
2 (leaving early), May 7 (leaving early), May 7 (exceeding her
scheduled break), and May 8 (away from her desk for an unacceptable
period of time). This earned her two “occurrences” under the
policy. Green issued a written warning to Richardson.
d. Richardson’s Request for FMLA Leave
On May 28, 2003, Richardson completed paperwork requesting
intermittent FMLA leave because of her carpal tunnel syndrome. She
did not, however, specify the dates on which she would need leave.
Monitronics’s Human Resources manager, Regina Sconyers,
nevertheless approved Richardson’s request.
e. Summer 2003: Final Warning
From the end of May 2003 to August 2003, Richardson was tardy
five times: May 28, June 2, June 5, June 23, and August 20. She
contested the May 28, June 2, and June 23 tardies as pre-approved
by her “lead,” Dora Duran. Richardson provided documentation ——
4 Duran’s calendar for June —— that her June 23 tardy was pre-
approved. As the calendar shows that “Pam left per F.M.L.A.,”
Monitronics removed that tardy from her record. The calendar did
not include the same notation for the other disputed date in June,
however, and Richardson presented nothing else to substantiate her
claim that Duran had approved the other disputed tardies.
Accordingly, Monitronics did not remove those tardies from
Richardson’s attendance record. In the end, Richardson’s record
reflected that she was tardy four times. Richardson thus accrued
two more “occurrences” over the summer, bringing her total number
of “occurrences” under the policy to four. Green issued Richardson
a final warning, which stated that a repeat violation would result
in immediate termination.
f. October 2003: Termination
On October 21, 2003, Richardson incurred her final infraction.
That day, Monitronics sponsored a self-defense workshop. The
details on the informational flyer recommended loose-fitting
clothing for the workshop, so Richardson wore a polo shirt to the
session. She returned to her shift after the workshop without
changing her clothes. As polo shirts are expressly prohibited
under the Monitronics dress code, Richardson was sent home. By
this time, Richardson had accrued four and a half “occurrences.”
Monitronics suspended Richardson for three days to determine the
appropriate course of action with regard to her continued
5 employment with the company. When Richardson’s suspension ended,
Monitronics fired her.
3. The Present Lawsuit
After her termination, Richardson sued Monitronics alleging
that she was fired in retaliation for her first FMLA lawsuit.
Monitronics filed a motion for summary judgment to have the suit
dismissed, assuming for the sake of argument that Richardson had
established a prima facie case of retaliation under the FMLA, and
the court, employing the traditional McDonnell-Douglas burden-
shifting framework, granted Monitronics’s motion on the ground that
Richardson failed to present sufficient evidence to rebut
Monitronics’s assertion that it fired her for attendance policy
violations. On appeal, Richardson contends that the district court
should have applied the “modified” McDonnell-Douglas framework ——
otherwise known as the “mixed-motive” framework —— to her case.
She argues that, even though retaliation was not the sole reason
for her termination, it was a motivating factor in it. Richardson
further contends that, under the mixed-motive framework,
Monitronics is not entitled to summary judgment. We have appellate
jurisdiction under 28 U.S.C. § 1291.
II. ANALYSIS
A. Standard of Review
We review the district court’s grant of summary judgment in
6 favor of Monitronics de novo.2 We will affirm the district court
if there is no genuine issue of material fact, and Monitronics is
entitled to summary judgment as a matter of law.3 We consider the
evidence in a light most favorable to Richardson, the non-movant,
but she must point to evidence showing that there is a genuine fact
issue for trial.4
B. The FMLA
The FMLA prohibits employers from “interfer[ing] with,
restrain[ing], or deny[ing] the exercise or the attempt to
exercise, any right provided under” the act.5 Concomitantly, the
FMLA prohibits employers from “discharg[ing] or in any other manner
discriminat[ing[ against an individual for opposing any practice
made unlawful” by the act.6 To make a prima facie case of
retaliatory discharge, the employee must 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.7
2 Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 184 (5th Cir. 2005). 3 Id. 4 Id. 5 29 U.S.C. § 2615 (a)(1). 6 Id. § 2615(a)(2). 7 Hunt v. Rapides Healthcare Sys., Inc., 277 F.3d 757, 768 (5th Cir. 2001).
7 When there is no direct evidence of discriminatory intent, we
have typically relied on the familiar McDonnell-Douglas burden
shifting framework to determine whether an employer discharged an
employee in retaliation for participating in FMLA-protected
activities.8 Specifically, once the employee establishes a prima
facie case of retaliation, the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the adverse
employment action.9 If the employer succeeds in doing so, the
burden shifts back to the employee to show by a preponderance of
the evidence that the employer’s articulated reason is a pretext
for discrimination.10 Here, the district court granted
Monitronics’s motion for summary judgment under the traditional
McDonnell-Douglas framework, concluding that Richardson failed to
prove, by a preponderance of the evidence, that Monitronics fired
her in retaliation for exercising her FMLA rights.
The traditional McDonnell-Douglas framework does not always
apply in FMLA retaliatory discharge cases, however. The mixed-
motive framework applies to cases in which the employee concedes
that discrimination was not the sole reason for her discharge, but
argues that discrimination was a motivating factor in her
termination. This rule is based on a recent Supreme Court case,
8 Id. 9 Id. 10 Id.
8 Desert Palace, Inc. v. Costa,11 and our recent opinion in Rachid v.
Jack in the Box, Inc.,12 both of which endorse the mixed-motive
framework for actions arising under other anti-discrimination
statutes. Within the mixed-motive framework, (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.13 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.14 The employer’s final burden “is
effectively that of proving an affirmative defense.”15
In Desert Palace, the Supreme Court addressed specific
evidentiary burdens under Title VII. Title VII expressly prohibits
11 539 U.S. 90 (2003). 12 376 F.3d 305 (5th Cir. 2004). 13 Id. at 312. 14 Id. 15 Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005).
9 adverse employment actions that are motivated in part by
discrimination on the basis of sex, race, color, religion, or
national origin. Thus, Title VII explicitly permits actions
proceeding under a mixed-motive framework.16 At the time of Desert
Palace, the courts of appeals were split as to whether (1) a
plaintiff must adduce direct evidence of discrimination to have a
court or jury review claims under a mixed-motive analytical
framework, or (2) a plaintiff who presents only circumstantial
evidence of discrimination is entitled to proceed under a mixed-
motive framework.17
In ultimately deciding that a Title VII plaintiff does not
face a heightened evidentiary burden in mixed-motive cases, the
Court started with the text of Title VII. Specifically, the Court
noted that Title VII (1) explicitly permits mixed-motive cases, (2)
prohibits discrimination “because of” sex, race, color, religion,
or national origin, and (3) “[o]n its face... does not mention,
much less require, that a plaintiff make a heightened showing
through direct evidence.”18 In addition, noted the Court, the
statute’s “silence with respect to the type of evidence required in
mixed-motive cases also suggests that we should not depart from the
‘[c]onventional rule of civil litigation [that] generally appl[ies]
16 42 U.S.C. § 2000e-2(m). 17 539 U.S. at 92-94. 18 Id. at 98 (emphasis in original).
10 in Title VII cases.’”19 Accordingly, a plaintiff in a Title VII
action need only provide circumstantial evidence of discrimination
to be entitled to proceed under the mixed-motive framework.
In Rachid, we extended Desert Palace and its ruling on the
mixed-motive framework to the ADEA. Specifically, we held that (1)
the mixed-motive analytical framework applies to ADEA cases, and
(2) the plaintiff in an age discrimination action need not provide
direct evidence of discriminatory intent to proceed under the
mixed-motive analytical framework.20 Rachid emphasizes that, like
Title VII, the plain language of the ADEA prohibits discrimination
“because of” age.21 Moreover, “the ADEA neither countenances nor
prohibits the mixed-motives analysis.”22 We recognized in Rachid
that, unlike Title VII, the text of ADEA does not specifically
provide for mixed-motive cases, but found such explicit statutory
text unnecessary to the applicability of the mixed-motive framework
in light of the foregoing reasoning.23
Rachid is the law of this circuit, and, even though it
19 Id. at 99. 20 376 F.3d at 310-12. 21 Id. at 310-11. 22 Id. at 311 n.8. 23 Id. (explicitly rejecting Fourth Circuit dicta in Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 n.2 (4th Cir. 2004), indicating that it would find that there is no mixed-motive option when the statutory language does not explicitly permit it).
11 addresses a different anti-discrimination statute, consistency
requires that we endorse the mixed-motive framework in appropriate
FMLA retaliation cases.24 First, the text of the FMLA prohibits
discrimination because of the exercise of FMLA rights. Although
the text of the statute does not contain the words “because of”
when describing the discrimination that it proscribes, the text
undeniably has that meaning. We have recognized this in fashioning
the third element of an FMLA plaintiff’s prima facie case, i.e.,
that there must be a causal link between the protected activity and
the adverse employment action. In addition, the FMLA —— like the
ADEA —— neither countenances nor prohibits the mixed-motive
analysis. Thus, the mixed-motive framework is not at odds with the
statutory text.
Furthermore, even though the text of the FMLA does not
explicitly authorize the use of the mixed-motive framework, the
regulations promulgated under it clearly anticipate mixed-motive
cases. The regulations state that an employer may not discriminate
against an employee who has taken FMLA leave, specifying by example
that “employers cannot use the taking of FMLA leave as a negative
factor in employment actions.”25 The regulations confirm that the
FMLA protects employees from having their exercise of FMLA rights
24 See Oby v. Baton Rouge Marriot, 329 F.Supp.2d 772, 786 (M.D. La. 2004) (relying on Rachid to apply a mixed-motive analysis to an FMLA claim). 25 29 C.F.R. § 825.220(c) (emphasis added).
12 considered as “a” factor in the decision-making process.
Accordingly, there is a textual basis, albeit regulatory, for
applying a mixed-motive analysis.
Based on the foregoing, we are convinced that the district
court erred in evaluating Richardson’s FMLA retaliation claim under
the traditional McDonnell-Douglas framework. Richardson is
entitled to have her claim reviewed under a mixed-motive analytical
framework. Today’s holding accords with the opinion of the only
other federal appellate court that has specifically addressed the
applicability of the mixed-motive framework to the FMLA.26
C. Application to Richardson’s Case
1. Richardson’s Prima Facie Case and Monitronics’s Legitimate, Nondiscriminatory Reason
In its brief, Monitronics appears to contest Richardson’s
ability to establish a prima facie case. As we noted, however,
Monitronics’s motion for summary judgment assumes for the sake of
argument that Richardson did establish a prima facie case of
discrimination. Accordingly, Monitronics has waived any argument
on appeal that Richardson cannot establish a prima facie case of
discrimination. Montironics has, however, articulated a
legitimate, nondiscriminatory reason for firing Richardson: She
acquired 4.5 occurrences under the attendance policy, which calls
26 Gibson v. City of Louisville, 336 F.3d 511, 513 (6th Cir. 2003) (acknowledging that an FMLA plaintiff does “not need to prove that discrimination was the sole reason for his termination”).
13 for termination, and she had a lengthy history of attendance
2. Discrimination as a Motivating Factor in Richardson’s Discharge
Richardson has presented sufficient evidence to create an
issue of fact as to whether the exercise of her FMLA rights was a
motivating factor in her discharge. Specifically, Richardson
testified that, about a month before she was fired, she overheard
her manager, Reginald Blakely, tell Green that “We’ll just fire her
ass. We’ll worry about it later.” Richardson confronted Blakeley
about the statement, and he responded that he was “tired of all of
this stuff” going on with her. Monitronics does not deny the
statements. Although the statements could relate to Richardson’s
attendance policy violations, they could also relate to her FMLA
leaves or to her ongoing suit against Monitronics, or both.
Similarly, Richardson testified that the head of Human Resources
informed her that Monitronics would no longer accommodate her, that
it had “accommodated her enough.” Monitronics disputes the
statement, but, taken in the light most favorable to Richardson,
the statement could be probative of a hostile environment. The
hostile remarks and the temporal proximity of Blakely’s remarks to
Richardson’s termination, taken as a whole, raise an issue of fact
as to whether retaliation was a motivating factor in Richardson’s
14 termination.27
Richardson insists that there is other evidence that creates
an issue of fact as to whether retaliatory animus was a motivating
factor in her termination. Her proffered evidence falls short of
the mark. For example, Richardson protests that she was
disciplined for three tardies that had been approved by her “lead,”
Duran. Therefore, complains Richardson, Monitronics should not
have disciplined her for those tardies under the attendance policy.
Richardson offers nothing else, however, such as testimony from
Duran, to support her assertion. Notably, the only documentary
evidence before us, Duran’s calendar, indicates that she did not
approve at least one of the contested tardies.
Richardson also asserts that Monitronics manufactured the
dress code violation that lead to her termination. She admits,
however, that she was in violation of the dress code. There is
nothing before us to suggest that the Monitronics dress code did
not remain in full effect while employees were at the office.
Accordingly, Richardson’s contention that her dress code violation
was a suspect reason for terminating her fails to indicate
retaliatory animus.
Richardson further contends that Monitronics departed from its
own progressive discipline attendance policy when it terminated her
27 Cf. Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005) (considering plaintiff’s evidence as a whole to determine whether discrimination was a motivating factor in adverse employment decision).
15 when it failed to give her an oral warning after the policy went
into effect in May 2003. Richardson’s argument is merely semantic.
She received an oral warning in April 2003 for incurring four
absences and five tardies —— more than 6 occurrences —— in that
month alone. Shortly after her oral warning, Richardson received
(1) a written warning in May 2003, (2) a final warning in August
2003, and (3) termination in October 2003. An employer’s failure
to follow its own policies may be probative of discriminatory
intent, but it would be too far a stretch to infer discriminatory
intent on these facts. Richardson can twist the facts to argue
that the progressive discipline she received departed from the
attendance policy, yet this “departure” is not probative of
Finally, Richardson insists that Monitronics made several
changes to her schedule without giving her proper notice in an
effort to induce her to commit attendance policy violations.
Significantly, however, Richardson’s deposition testimony reveals
that Monitronics changed her schedule only once without proper
notice, and that management recognized its error and apologized to
her. Richardson did not testify that the improperly-noticed
schedule change induced her to violate the attendance policy.
3. Monitronics Would Have Fired Richardson Absent any Retaliatory Animus
Richardson submitted sufficient evidence to create a fact
issue whether retaliatory animus was a motivating factor in
16 Monitronics’s decision to fire her. Monitronics was thus required
to provide sufficient evidence to establish as a matter of law that
it would have fired her despite any retaliatory motive; and
Monitronics met this burden. Most significantly, the attendance
policy undeniably specifies that four occurrences result in
termination. Richardson acquired more than enough occurrences to
justify her termination under the policy. Moreover, Monitronics
demonstrated that it has always maintained a company policy that
attendance is a key consideration in determining whether an
employee is entitled to continued employment; and Richardson has a
long history of attendance problems. The foregoing evidence
overcomes Richardson’s evidence of retaliatory motive which
consists entirely of ambiguous or conclusional statements. We are
convinced that the only reasonable conclusion a jury could make is
that Monitronics would have fired Richardson with or without
retaliatory animus. Monitronics thus carried its burden of proving
that it would have fired Richardson irrespective of any retaliatory
motive.
III. CONCLUSION
Even under the mixed-motive framework that we today hold to be
applicable in FMLA retaliation claims, Monitronics has carried its
burden of proving that it would have fired Richardson despite any
retaliatory motive. Monitronics is therefore entitled to a summary
judgment dismissing Richardson’s action. We affirm the judgment of
17 the district court, albeit for the foregoing, different reasons.