Rook v. Xerox Corporation

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 20, 2002
• Docket: 02-20109
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 02-20109 _______________________

GINGER ROOK,

Plaintiff-Appellant,

versus

XEROX CORPORATION,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas, Houston Division 01-CV-2966 _________________________________________________________________ December 18, 2002

Before GARWOOD, JONES, and STEWART, Circuit Judges.

PER CURIAM:1

Appellant Ginger Rook (“Rook”) appeals the district

court’s grant of summary judgment in favor of appellee Xerox

Corporation (“Xerox”) on her claims under the Family and Medical

Leave Act of 1993 (“FMLA”), the Americans with Disabilities Act of

1 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1990 (“ADA”), and the Texas Commission on Human Rights Act.2 Rook

appeals on three grounds: (1) that Rook established a genuine issue

of material fact as to each element of her causes of action; (2)

that the district court erred in not allowing her additional time

for discovery under Federal Rule of Civil Procedure 56(f); and (3)

that the district court erred in granting summary judgment on an

issue not raised by the parties and of which Rook had no notice.

Finding no reversible error, we AFFIRM.

BACKGROUND

Xerox hired Rook on February 8, 1999, after she had

worked for Xerox through Manpower, Inc. for nearly a year. On

June 28, 1999 Rook requested and received a 30 day leave of absence

because of pain related to the physical pain of weekly biopsies

Rook was undergoing, weight loss, flu-like symptoms, and

depression. During her leave of absence Rook’s physician found

that Rook’s biopsies indicated the presence of cancerous tissue and

that Rook needed surgery. Rook called her supervisor at Xerox,

Kevin Brown, on July 23, 1999 to inform him that she was scheduled

to have surgery on July 29 and that she might be able to return to

work in mid-August. On July 26, Rook called Brown and informed him

that her surgery had been rescheduled for August 2. On August 2,

2 Rook does not appeal the grant of summary judgment on her state law claim.

2 Rook underwent surgery in which Dr. Michael Bevers removed a

cancerous tumor and the lymph nodes in Rook’s right leg.

On August 3, Dr. Lynn Parker (a colleague of Bevers)

informed Rook that she could not return to work until September 13,

1999 due to the extent of the surgery performed the preceding day.

On August 6, Parker notified Health International by facsimile that

Rook would not be able to return to work before September 13.3

Rook faxed that same letter to Brown on August 9.4 On August 26,

Brown sent a letter to Rook informing her that “if you [Rook] are

unable to report to work on [August 30, 1999], and you do not

provide me with a satisfactory explanation for your absence, you

will be considered to have voluntarily resigned your employment

with Xerox Corporation, effective June 26, 1999.” Rook called

Brown on August 30 or 31 to remind him that she was on an approved

medical leave of absence through September 13. Brown stated that

he stood by his letter and told Rook that Health International had

informed him that Rook’s disability benefits had been denied and

that Rook was absent without leave.

3 Health International is a company that manages Xerox’s disability program. Part of Health International’s duties involves assessing the extent to which a disability limits a Xerox employee’s ability to work. 4 Xerox contends that Brown never received a copy of Parker’s letter. However, since we are reviewing a grant of summary judgment we review the evidence in the light most favorable to Rook. Rook also claims that Brown confirmed receiving this letter from Rook. The portions of the record that Rook cites in support of this contention, however, provide no evidence of any such confirmation.

3 Rook then called Heidi Sanders, her case manager at

Health International. Sanders confirmed that Rook’s leave had been

extended to September 12 and offered to call Brown so informing

him. Sanders did in fact call Brown and tell him that Rook’s leave

had been extended. Due to Sanders’s call, Brown understood Rook’s

leave to have been authorized through September 12, and he

considered Rook not to have resigned her employment with Xerox.

Sanders then called Rook at her telephone number on record with

Xerox and Health International to inform her that she had not been

terminated. Sanders left a message with Rook’s ex-husband with

whom she was living at the time. Sanders called again the next day

and left another message. Sanders called again on September 9 and

left a message for Rook on the answering machine. Rook did not

return any of these messages. Sanders then sent a letter to Rook

at her address on record with Xerox advising her to contact Health

International immediately. Neither Xerox nor Health International

received any response.

Unknown to Xerox and Health International, however, Rook

moved from Houston to Amarillo, Texas on September 8. Rook did not

advise Xerox or Health International of her move or her change of

address. On September 13, Rook’s doctor advised Health

International that Rook could return to work on September 17. In

response Health International extended Rook’s leave and disability

payments through September 16. On September 15, Sanders again

4 called Rook and left a message. Rook did not return the call.

During this time in September 1999, Rook continued to receive bi-

weekly disability payments from Xerox via direct deposit into her

bank account. Under Xerox policy, these payments would have ended

had she been discharged.

On September 28, because Rook had failed to return to

work or contact either Xerox or Health International, Brown sent

her a letter advising that she must return to work by September 30

or she would be considered to have voluntarily resigned. This

letter went unanswered. On October 1, Brown sent another letter to

Rook informing her that she was deemed to have resigned her

employment.

STANDARD OF REVIEW

We review the district court's grant of summary judgment

de novo. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380

(5th Cir. 1998). Summary judgment is appropriate when, viewing the

evidence and all justifiable inferences in the light most favorable

to the non-moving party, there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law.

Hunt v. Cromartie, 526 U.S. 541, 552, 119 S. Ct. 1545, 1551-52, 143

L. Ed. 2d 731 (1999); see also Fed. R. Civ. P. 56(c). At the

summary judgment stage, a court may not weigh the evidence or

evaluate the credibility of witnesses, and all justifiable

inferences will be made in the nonmoving party's favor. Morris,

5 144 F.3d at 380 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)). This

burden is not satisfied with some metaphysical doubt as to the

material facts, by conclusory allegations, by unsubstantiated

assertions, or by only a scintilla of evidence. Little v. Liquid

Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc).

DISCUSSION

The FMLA contains two separate sets of provisions. It

provides both prescriptive, substantive entitlements to eligible

employees and proscribes discrimination against eligible employees

for taking advantage of these statutory entitlements. Hunt v.

Rapides Healthcare Sys. L.L.C., 277 F.3d 757, 763 (5th Cir. 2001);

Bocalbos v. National W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir.

1998). Rook alleges that Xerox violated the FMLA when it

terminated her in August prior to the expiration of the twelve

weeks of unpaid leave she was entitled to under the FMLA. See 29

U.S.C. § 2612 (a)(1)(D) (2000). Thus, Rook asserts that Xerox is

liable both under the FMLA’s prescriptive entitlements and its

anti-discrimination provisions.

Fundamental to Rook’s FMLA statutory entitlement claim is

the need to establish a genuine issue of material fact that she was

in fact terminated prior to the end of her statutorily mandated

unpaid leave. The parties appear to agree that an employee is

actually discharged “when the employer uses language or engages in

6 conduct that ‘would logically lead a prudent person to believe his

tenure has been terminated.’” Chertkova v. Connecticut General

Life Ins. Co., 92 F.3d 81, 88 (2d Cir. 1996) (quoting NLRB v.

Trumbull Asphalt Co., 327 F.2d 841, 843 (8th Cir. 1964)) (stating

standard for actual discharge in Title VII cases); see also NLRB v.

Cement Masons Local No. 555, 225 F.2d 168, 172 (9th Cir. 1955).

Since the parties agree that this is the standard to be applied,

and finding no controlling precedent of this court to the contrary,

we will assume that it is in fact the proper standard.

After carefully reviewing the record, we conclude as a

matter of law that Xerox’s conduct would not have led a prudent

person to believe that Rook’s employment had been terminated. The

only event that could have given Rook such an impression would be

her conversation with Brown on or about August 30 regarding

Brown’s letter of August 26. Rook, in her brief, states that in

this conversation Brown said that Rook’s disability claim had been

denied and that she was “absent without leave.” Brown did not say

that Rook was terminated; he said he stood by the August 26 letter,

which plainly left it in Rook’s hands to furnish proof of her

ongoing disability. There is no evidence in the record that anyone

from Xerox told Rook that she was terminated at any point prior to

October 1. Furthermore, when Rook spoke to Sanders soon after her

conversation with Brown, Sanders stated that Rook was on approved

leave through September 12 and offered to contact Brown to clear up

7 the misunderstanding. Rook apparently failed to follow up with

either Sanders or Brown concerning Sanders’s offer to clarify the

situation with Brown. She does not dispute that Sanders repeatedly

attempted to call her during September, and she offered no summaray

judgment evidence disputing her awareness of these calls. Finally,

she offered no evidence that she was unaware of the deposits of

disability benefits into her account in September or that those

payments would not have been paid unless she was still employed by

Xerox.

Under these circumstances, no prudent person could have

believed that she was terminated in August. Thus, Rook was not

discharged, or considered to have resigned voluntarily, until

October 1, after the expiration of the leave she was entitled to

under the FMLA. We affirm the district court’s grant of summary

judgment in favor of Xerox on Rook’s claim based on the FMLA’s

substantive entitlements.

Rook also alleges that Xerox’s termination of her

employment constitutes discrimination based on her exercising her

statutory rights under the FMLA. See 29 U.S.C. § 2615(a)(2)

(2000). When an employee claims that an employer has discriminated

against her for taking FMLA leave, and there is no direct evidence

of discrimination, that claim is analyzed under the framework set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973). Chaffin v. John H. Carter Co., 179

8 F.3d 316, 319 (5th Cir. 1999). Under McDonnell Douglas, Rook must

first establish a prima facie case of discrimination.5 To

establish a prima facie case of discrimination under the FMLA, Rook

must show that “(1) she was protected under the FMLA; (2) she

suffered an adverse employment decision; and either (3a) that 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, 277 F.3d at 768. Since Rook was not

fired, she did not meet the second element of her prima facie case.

Thus, summary judgment on her FMLA claim was proper.

The ADA prohibits discrimination "against a qualified

individual with a disability because of the disability of such

individual in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of

employment." 42 U.S.C. § 12112(a) (2000). As with the FMLA, this

court applies the McDonnell Douglas framework to discrimination

claims brought under the ADA.6 McInnis v. Alamo Community College

Dist., 207 F.3d 276, 279 (5th Cir. 2000). And as with

5 In her brief, Rook does not argue that there is a genuine issue of material fact under a direct evidence theory. She only argues that she can create a prima facie case of discrimination under the McDonnell Douglas framework. 6 One can also prove discrimination under the ADA by direct evidence. Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999). Rook, however, does not argue that there is any direct evidence of discrimination.

9 discrimination claims brought under the FMLA, Rook must as part of

her prima facie case establish that she was subject to an adverse

employment action. Id. Since this court has found that as a

matter of law Rook was not terminated by Xerox, she cannot

establish this element of her prima facie case. Summary judgment

in favor of Xerox on Rook’s ADA claim was proper.

Rook also argues that the district court improperly

granted summary judgment in Xerox’s favor on her ADA claim because

the district court may have relied upon grounds not previously

raised or addressed by either party. Rook states that the district

court suggested at the summary judgment hearing that her ADA claim

failed because there was no nexus between her physical limitation

and the reasonable accommodation she sought. Rook argues both that

this “nexus” theory is incorrect and that even if it is correct, it

was not raised by Xerox and thus Rook did not have notice of this

argument or an opportunity to respond.

We need not address either the correctness of the “nexus”

theory or whether the district court improperly relied upon a

theory not raised by Xerox. We may affirm the grant of summary

judgment for any reason supported by the record, even if not relied

upon by the district court. LLEH, Inc. v. Wichita County, Tex.,

289 F.3d 358, 364 (5th Cir. 2002). In fact, “an appellate court may

affirm even though the district court relied on the wrong reason in

reaching its result.” Letcher v. Turner, 968 F.2d 508, 510 (5th

10 Cir. 1992) (per curiam) (quoting Davis v. Liberty Mutual Ins. Co.,

525 F.2d 1204, 1207 (5th Cir. 1976)). Since Rook failed to

establish that she was terminated, we affirm the summary judgment

on this ground.

Rook appeals the district court’s denial of her motion

for additional time to conduct discovery under Rule 56(f). Under

Federal Rule of Civil Procedure 56(f), a summary judgment non-

movant may seek a continuance to conduct additional discovery

necessary to discover facts necessary to the non-movant’s

opposition to the summary judgment motion. Fed. R. Civ. P. 56(f).

A district court’s denial of a motion for additional time for

discovery under Rule 56(f) is reviewed for abuse of discretion.

Beattie v. Madison County School Dist., 254 F.3d 595, 605 (5th Cir.

2001). Rook argues that the district court’s denial of her motion

prevented her from discovering evidence she required to respond to

the motion. Specifically, Rook states that she should have been

permitted additional discovery regarding (1) whether Health

International had the authority to make employment decisions for

Xerox, (2) Xerox’s receipt of Parker’s note stating that Rook could

not return to work until September 13, and (3) Xerox’s attempts to

contact her after August 30.

We conclude that the district court did not abuse its

discretion in denying additional discovery. Health International’s

authority to make employment decisions is not relevant to whether

11 or not Xerox terminated Rook. Neither party suggests that Health

International discharged Rook from her employment at Xerox.

Furthermore, whether Health International had the authority to

reinstate Rook’s employment is not relevant because Rook was never

terminated. Health International’s involvement is relevant only

with respect to whether Rook could reasonably conclude she had been

terminated by Xerox in light of the actions taken by Sanders.

Additional discovery regarding whether Xerox received

Parker’s note would likewise not raise an issue of material fact.

In fact, in this opinion, we have assumed that Xerox did receive

the note. Finally, Rook argues that she required additional

discovery regarding Xerox’s attempts to contact her. Xerox,

however, had produced copies of the letters they sent to her at her

address on record with Xerox as well as documentation of Health

International’s attempts to contact Rook after August 31. Rook

does not identify what other discovery she required in order to

obtain “facts essential to justify [her] opposition.” Fed. R. Civ.

P. 56(f). She simply states that she is entitled to additional

discovery on how Xerox attempted to contact her. In light of

Xerox’s having already produced documentation of its attempts to

contact Rook after August 30, we cannot say that the district court

abused its discretion in denying additional discovery regarding

this issue.

12 Finally, Rook appeals the district court’s denial of her

motion to strike certain hearsay evidence in Xerox’s motion for

summary judgment. Rook, however, simply states that she re-urges

her objections made before the district court without providing any

argument or analysis. Thus, she has waived this issue on appeal.

L & A Contracting Co. v. Southern Concrete Servs., 17 F.3d 106, 113

(5th Cir. 1994)(issues inadequately briefed are deemed waived).

CONCLUSION

Upon review of the record, we find no genuine issue of

material fact supporting Rook’s ADA or FMLA claims because she

cannot establish that she was terminated by Xerox. Furthermore,

the district court did not abuse its discretion in denying

additional time for discovery under Rule 56(f). Finally, the

district court did not impermissibly grant summary judgment without

proper notice to Rook. Finding no reversible error, we AFFIRM.

AFFIRMED.