### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-20049 Summary Calendar

PAMELA A. LORENTZ, Plaintiff-Appellant
v. ALCON LABORATORIES, INC., Defendant-Appellee

A ppeal from the United States District Court for the Southern District of Texas USDC No. 4:11-CV-1778

Before KING, CLEMENT, and GRAVES, Circuit Judges. PER CURIAM: * Pamela Lorentz took l e a v e u n d e r the Family and Medical Leave Act to

care f o r her s ick d aughter. She alleges that upon her return to w ork, her employer, Alcon Laboratories, Inc., terminated her in reta l i a t i o n f or taking leave. Lorentz a ppeals the district court’s grant of Alcon’s motion for summary judgment. For the following reasons, we AFFIRM. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D J uly 8, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-20049 Document: 00512298649 Page: 1 Date Filed: 07/08/2013No. 13-20049 I. FACTUAL AND PROCEDURAL BACKGROUND P a mela Lorentz (“Lorentz”) began w orking for A lcon Laboratories, Inc. ( “ Alcon”) as a refractive a ccount manager o n J anuary 5, 2007. H e r responsibilities included selling two types of A lcon premi u m i n traocular lens implants, and managing a sales territory consisting of the Houston area, as well

a s p a rts of Louisiana and Mississippi. Her responsibilities a lso include d performing various a dministrative tasks, such as logging sales c a lls and timely submitting reports to her supervisor. Although she r e ceived an overall performance rating of “ Fully Meets E xpectations” on her 2007 perfo rmance review, the review i dentified several areas in need of improvement. Specifically, the review noted that “[a]dministrative t a s k s a re completed with mixed timeliness,” Lorentz’s sales call reporting was “hit or miss on c o nsistency,” and her sales calls had been “impacted significantly” by her “personal obligations.” From January to April 2008, her territory management “was bel ow expectations,” and she suffered “performance deficiencies.” Par t o f Lorentz’s employment p roblems s temmed from her efforts to
manage her t h i rteen-year-old daughter’s m edical problems, which became serious in October 2007. According to Lorentz, “[i]t w as becoming ‘ increasingly difficult’

. . . t o manage her d a u g h t e r ’ s illness and her job o f selling” Alcon’s products. Her s upervisor and division manager, Matt B a chmann, also became frustrated with her n eed to leave work t o take her daughter to different doctors. The str e s s Lorentz experienced trying to balance h er p rofessional and personal obligations caused her to make mistakes at w o rk, which eventually led her t o m eet with Bachmann and request leave to care for her daughter under the Family a nd M edical L eave Act (“FMLA”). Bachman ap p arently was taken aback by h er r equest, g r ew r e d i n t h e face, and said they needed to end the conversation before either one of them said something they would regret. Her request for leave was granted, however, and she was on leave f rom May 5 to July

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25, 2008—the full twelve weeks available u nder F M LA. During t his time, Bachmann called Lorentz three or four t imes to find out whe n s he would be coming back t o work. L orentz even t u a l l y returned to work on July 28 to a territory consisting only of the greater H ouston area in accordance with Alcon’s earlier plan to realign its territories across the United States. Upon her return, Lorentz continued t o struggle de s p i te t h e reduced territory. According t o L orentz, she had a “horrible” sales month in August. Additionally, although having no more pa i d time off (“PTO”), she also was absent from work during all or part of three days between July 2 8 and September 10. Her inconsistent completion of administrative tasks also continued. She received a v isit on August 21 from Ba c h m ann’s supervisor, regional director Craig Vlaanderen, who asked her about Bachmann, h er daughter, and t h e leave of absence. Vlaanderen, together with Bachmann, again met wi t h Lorentz o n September 10. They discussed Lorentz’s performance deficiencies, including t he three d ays she w as a bsent in whole or in p a rt since returning from FMLA leave. A letter dated September 17 summarized their conversation, and listed the areas in which L orentz needed to improve. The letter a lso warned that her “job perf

ormance [was] trending toward a [below expectations] rating.” It also listed, as “cert a i n m inimum job e xpectations,” attendance in the field, prompt attendance at all business functions, three sales calls e ach business day, properly documenting sales calls, and completing all administrative tasks in a timely m anner. According to Lorentz, no other employee w as s u b j e cted to similar requirements and Alcon’s c o mpany policy t ypically provided flexible leave time for sales professionals. Lorentz, Bachmann, a nd Vlaanderen again met on N ovember 5 to discuss her continuing problems. T hese included being late to pick up Bachmann during

a field visit, repeatedly failing to make three sales calls per day, and failing to send call planning reports. Vlaanderen informed her that he had lost confidence

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in her a bility to d o her job and that she could resign. When L orentz r efused to resign, she was placed on a 9 0

- day Performance I mprovement Plan (“PIP”) beginning D e c e m b e r 1 , 2 008. As before, Lorentz was required to adequately complete her adminis t r a t i ve duties, b u t a lso had t o improve sales in her territory by an increment of five percent per month. At the end o f 2008, L orentz’s overall performance w a s r a ted as below expectations. H er performance under th e P I P was reviewed in March 2009. While improving in c ertain areas, she failed t o m eet all P IP requirements. The PIP was extended for 60 days. Lorentz c ontinued m aking some progress, but her completion o f a d m inistrative duties remained deficient. Her employment subsequently was terminated effective May 15, 2009. On May 10, 2011, Lorent z f i l e d s uit i n district c ourt alleging t hat Alcon interfered with her substantive rights under FMLA and r etaliated against her for taking FMLA leave. Alcon moved for summary judgment, which the district court granted o n J anuary 4, 2013. The d istrict court found that Lorentz’s request for leave was granted, and that Alcon did not interfere with her leave. It further found that her empl o yment was n ot terminated because she t ook leave, and also rejected her contention that other similarly situated employees

were retaliated against for taking FMLA leave. It concluded that Lorentz “was fired for exacerbating a long-term low performance in sales a n d s u p p ort work with impudence.” Lorentz timely appealed the district court’s dismissal of her FMLA retaliation claim. II. STANDARD OF REVIEW We review a d istrict court’s grant o f summary judgment de novo, a pplying the same standards as the district court. Lindquist v. City of Pasadena Tex. , 669 F.3d 225, 2 32 (5th Cir. 2012). The district court’s judgment should be affirmed “if, viewing the evidence in the light m o s t f a v o r a ble to t he non-moving party, there i s no genuine dispute [as] to any material fact and the movant is entitled

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to judgment as a matter of law.” United States ex r e l

. J a m i s on v. McKesson Corp. , 649 F.3d 322, 326 (5th Cir. 2011); see Fed. R. Civ. P. 56(a). III. DISCUSSION On appeal, Lorentz argues only that the district court improperly granted summary judgment on her claim that Alcon r etaliated against her for taking a twelve-week leave of absence under FMLA. 1 Because L o rentz relies on circumstantial evidence to support her FMLA retaliation claim, we turn to the familiar McDonnell D o u glas burden-shifting framework. 2 Hu n t v
. Rapides Healthcare Sys., LLC , 277 F.3d 757, 768 (5th Cir. 2001). Under that framework, Lorentz must f

irst establish a prima facie case of r etaliatory discharge by showing that: “(1) she e nga g ed i n a protected activity, (2) the employer discharged her, and (3) there is a causal link between the protected activity and the discharge.” Richardson v. Monitronics Int’l, Inc. , 434 F.3d 327, 332 (5th Cir. 2005). If she can establish her prima facie case, the burden shifts to Alcon to articulate a legitimate, nonretaliatory r eason for terminating her. Id. If Alcon presents such a r eason, the burden shifts b ack t o L o r e n t z t o show “by a preponderance of the e vidence that the employer’s articul a t e d r e a son is a pretext for discrimination.” Id. at 332–33. An employee may establish pretext “directly, by showing a [ret a l iatory]

reason motivated management, or indirectly, by showing that the reasons given

1 Find ing the d is trict court’s grant of s um m ary j ud g m ent correct, w e d o not reach Lorentz’s argum ent that on rem and w e s hould reas s ign this cas e to a d if f erent d is trict jud ge.

2 Conf us ingly, Lorentz argues in her rep ly brief that s he has pres ented direct evid ence of retaliatory intent, d es p ite otherw is e conf orm ing her argum ents to the M cD onnel l D ougl a s burd en- s hif

ting f ram ew ork

. See Reed v
. N eop ost U SA , Inc. , 701 F. 3d 434, 441 ( 5th Cir. 2012) ( d is cus s ing f

our- part tes t f

or d irect evid ence cla im s and tw o- p art tes t f or m ixed evid ence claim s )

. H ow ever , a r e view of her ap p ellate brief s how s that the evid ence s he p res ents ac t u a l l y r elates to es tablis hing the caus al link of her p rim a f acie retaliation claim

. As d is cus s ed later, w e as s um e, w ithout d ecid in g , t h a t L o r e n t z h a s su ff iciently es tablis hed a p rim a f acie FM LA retaliation claim

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for management’s actions are simply not believable.” Rios v. Rossotti , 252 F.3d 375, 378 (5th Cir. 2001) (citing Tex. Dep’t of Cmty. Affairs v
. Burdine , 450 U.S. 248, 253 (1981)). Alternatively, p retext may be established t hrough evidence of disparate treatment. V aughn v. Woodforest Bank , 6 65 F.3d 632, 637 (5th Cir. 2011); Laxton v. Gap Inc. , 333 F.3d 572, 578 (5th Cir. 2003). For purposes of this appeal, Alcon does not dispute tha t L orentz has established a prima facie case of retaliatory discharge. Similarly, Lorentz does not d ispute t hat poor performance could constitute a legitimate, n onretaliatory

reason for her termination. T h e r e fore, the only remaining issue is whether Lorentz can show t hat A lcon’s purported reasons for terminating her—deficient performance—were pretextual. 3 Lorentz pu t s f

o r t h various grounds on which to find pretext. She primarily relies on what s he describes as her e mployer’s relentless attacks and adverse actions following her return from leave t o show a retal i a t o ry m otive. She also disputes the district cour t ’ s c h a racterization of her as a long-term poor performer, and thus seeks to undermine Alcon’ s e x p l a nation that she was terminated for performance-related r easons. 4 Finally, she argues that she was treated less favorably t han other employees and t hat o ther employees who t ook FMLA leave also suffered retaliatory action. After review i n g L orentz’s

3 The p arties dis p ute w hether Lorentz p res erved her cha l l e n g e u n der the alternate “m ixed

- motive fram ew ork , ” w hich m od if ies the third s tep of the M cD onnel l

- D ougl a s f ram ew ork by allow ing an em p loyee to avoid s um m ary j ud g m e n t if s he “of f er[ s ] s uf f icient evid ence to create a g enuine is s ue of f act

. . . that the em p l o y e r ’ s [ nonretaliatory] reas on, although true, is b u t o n e of the reas ons f or its cond uct, another of w hich w as [ retaliation]

. ” Ri cha rdson , 434 F. 3d at 333. We agree w ith Alcon that Lorentz did not s uf ficiently rais e her
m ixed

- m otive theory in d is trict court. See N a sti CIBA Sp eci a l ty C

hem s. Corp

. , 492 F. 3d 589, 595 ( 5th Cir. 2007) ( litigant s eek ing to p res erve argum ent f or ap p eal “m us t p res s and not
m erely intim ate the argum ent d uring the p roceed ings bef ore the d is trict court”)

.

4 A lthough there is s om e d is p u t e a s t o whether Lorentz als o w as term inated f or ins ubord ination, Alcon’s term ination letter ref ers only to “p erf

orm ance reas ons
. ” 6 Case: 13-20049 Document: 00512298649 Page: 6 Date Filed: 07/08/2013No. 13-20049

arguments, w e conclude that Lorentz has not met her burden of showing that Alcon’s reason for terminating her was pretextual. 5 A. Retaliatory Statements Central to Lorentz’s retaliation claim is h e r characterization of the September 10 meeting between herself, Bac h mann, and Vlaanderen (and the subsequent September 1 7 letter summarizing their meeting) a s evidencing a retaliatory motive. See Laxton , 333 F.3d at 578 (“A pla i n t iff may establish pretext

. . . by showing t h a t t he employer’s proffered explanation is f alse

. . . . [i.e.,] it is n ot the real reason for the adverse employment action.”). According to Lorentz, on September 10, Bachmann and Vlaanderen “ team[ e d ] u p ” and “confront[ed] Lorentz a b o u t h e r time away from work.” In s upport of her

a r g ument, she identifies various s tatements made b y Bachmann and Vlaanderen. These include that Lorentz was “ t r y i n g to make her work ‘cooperate with e very t h i n g e lse’ in her life,” t hat u nlike Lorentz, Vlaanderen “leaves his family to go to work,” that she may not be “‘a good f it’ or ‘the right fit’” for the company, and that “there are ‘other options’ for her.” A review o f the transcript of the meeting Lorentz secretly recorded shows not only that her description of the meeting is inaccurate, but also that the

5 Becaus e Lorentz dis cus s es tem p oral p roxim ity betw een when she returned f rom leave and w hen she purp orted ly s uf f ered ad vers e em p loym ent actions only in the con t e x t of
es tablis hing her p rim a facie cas e, it is unclear whether she als o relies on this ground to s how p r e t e x t

. S ee Ba um ei ster v
. A IG G l oba l Inv

. Corp

. , 420 F. Ap p ’x 351, 356 (5th Cir. 2011 ) ( unp ublis hed ) ( p retext m ay be es tablis hed through tem p oral p roxim ity betw een FM LA leave and term ination)

. Lorentz p oints out that only s ix w eek s p as s ed f rom w hen s he returned f rom leave bef

ore Bachm ann and Vlaand eren m et w ith her to critique her p erf orm ance. As later d is cus s ed , w e f

ind that the Sep tem ber 10 m eeting d oes not s up p ort Lorentz’s claim of p retext. See Wi l son v
. N

obl e D ri l l i ng Serv s. , Inc. , 405 F. A p p ’x 909, 914 ( 5th C i r. 2010) ( p er curiam ) ( unp ublis hed ) ( s us p icious tim ing without m ore is ins uf f icient to s how p retext)

. Ad d itionally, Lorentz had received m any w arnings about her perf orm anc e i n t h e p as t. See G rubb v
. Sw

. A i rl i nes , 296 F. Ap p ’x 383, 390 ( 5th Cir. 2008) ( per curiam ) ( unp ublis hed ) ( term ination of f light ins tructor three w eek s af ter rais ing p os s ibility of FM LA leave d id not s how p retext w here ins tructor had received s everal w arnings r e lating to p erf orm ance p roblem s over p revious eighteen m onths )

. As a res ult, to the extent s he s eek s to s how p retext through tem p oral p roxim ity, her argum ent f ails

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quotations she relies on are taken o u t o f context. The September 10 meeting actually was a bout how Lorentz’s personal life continued i n t e rfering with her work despite Lorentz having used up all her remaining P TO and FMLA leave. 6 The three talked about the workdays t hat Lorentz had missed since returning from FMLA leave e ither because s he was sick or because her d aughter had to be taken to the doctor. T hey a lso discussed p r o blems relating to t he time her daughter’s school was starting. All this led Vlaanderen to comment that “it

seems like your work has to fit with your life,” and t hat “it doesn’t matter to me why [ you miss w ork]. All [ t hat] m atters t o me is that a ll o f these t hings k eep you away o r are reasons why you e i ther can’t be there or you have to c ut the day short, whatever. And all I’m telling you is . . . that can’t happen.” Vlaanderen returned to this topic many t imes throughout the meeting. “I don’t know if it’s the timing in—in your life and this job. But . . . now it seems to be i n conflict with everything else, and that can’t be.

. . . So we have to figure that o u t , or ultimately, we’ll have to part ways.” L orentz responded “I agree. Absolutely

. ” She continued, “[t]he honest truth is my family comes before anything e lse. B u t I do r ecognize that, you know, there has t o b e a balance there. And unfortunately, the way [my] life is, my h usband’s gone a lot and, you know, the k i d s
. . . .” Later still, Vlaanderen observed that “there’s always a good r eason [for y our absence]. A nd [we are] not saying that t h ere are no good

reasons. There are mitigating circumstances, but t here i s a body o f evidence, all of it k e e p i n g y o u , again, from being in y our j ob, you k now, a ll t he time doing things w e need y ou to do.” Vlaanderen’s statements reflect the difficult position

a manager faces when an employee exhausts h er P TO a n d F M LA leave, but continues to m iss work f or personal reasons. V l a a n deren encouraged Lorentz

6 Although as s erting that s he could have borrow ed ad d itional PTO f rom that available the f ollow ing y ear, Lorentz ack now led ged d u r i n g t he m eeting that she did not have any rem aining PTO

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to contact Alcon’s human resources department, but s tressed that her missing work—regardless of the reasons—could not c ontinue. Nothing in the September 1 0 m e e t i n g t r a n s c r i p t d e m o n s t r a tes that Bachmann and Vlaanderen c a r e d a b o u t the fa c t t hat Lorentz had taken FMLA leave, rather than that she was failing to k eep u p with her work. 7 See Grubb , 296 F. App’x at 39 1 ( “ A s a general proposition, ‘[a]n employee who requests or takes protected leave under the FMLA is not entitled t o any greater rights or benefits than he would be entitled to had he not requeste d o r taken leave.’” (alteration in original) (citation

o m i t t ed)). Lorentz has failed to show pretext based on the Septemb e r 1 0 meeting, or the subsequent September 17 letter. 8 B. Deficient Performance Lorentz a lso seeks t o show that her work was not deficie n t , a n d thus Alcon’s reason f

or t e rminating her is “unworthy of c redence.” S e e L a xton , 333 F.3d a t 578 (quoting Wallace v. Methodist Hosp. Sys. , 271 F.3d 2 12, 220 (5th Cir. 2001). She points out that t he only review of her work t o have been completed prior to her FMLA leave (and thus , a ccording t o her, before a ny retaliatory intent cou l d bias subsequent evaluations) l isted her as fully meeting expectations at the end of 2007. H er f i e ld training m anager also was “extremely impressed” b y her overall p rogress. Lorentz does not address the many parts of

7 Lorentz as s erts that Alcon ’ s a c t i ons contravene FM LA’s p urp os e becaus e Congres s intend ed f

or em p loyees lik e her to tak e FM LA leave to balance their p rof es s ional and p ers onal
res p ons ibilities

. But here the p roblem is not that Lorentz did not tak e FM LA leave. Ins tead , the p roblem is that the am ount of leave w as ins uf f icient for Lorentz to res olve her p roblem s at hom e. H ow ever, w hile an em p loyer m ay “p rovid e[ ] greater unp aid f am ily leave rights than
are af f ord ed by FM LA, ” it is not required to do s o. 29 C. F. R

. § 825. 700( a)

.
8 L o r e n t z lis ts other s up pos ed evid ence of retaliatory intent, includ ing Bachm ann’s reaction to her reques t f or leave, his calling her to inquire w hen s he w ould return to w ork , and his rem ind er to Lorentz that she had no PTO lef t. T his evid ence ap p ears to relate to Lorentz’s claim that Alcon interf ered w ith her s ubs tantive FM LA rights

. L orentz has not ap p ealed the d is trict court’s d is m is sal of that claim and w e d o not f ind that the rem ark s s how that Alcon’s
reas on f or term inating her w as pretextual. 9 Case: 13-20049 Document: 00512298649 Page: 9 Date Filed: 07/08/2013No. 13-20049

her 2007 p er f

o r m a n c e r eview that were critical of her performance. These included the need to better document her call a ctivity, t h e timeliness of her reporting a nd completion o f administrative tasks, and conflicts b e t w e en her personal obligations and work performance. The same problems continued t o plague her in the s ubsequent 2008 performance review. That review also commented o n the need for more consistent and documented reporting. I t a l so noted her lack of good communication. Overall, it found her t o have performed b e l o w expectations. Comparing the two reports, it is clear that, contrary t o Lorentz’s assertions, her performance problems arose long before she ever went on FMLA leave. While generally asserting that she complied with h e r position’s administrative requirements, she does not refute the many specific documented infractions. These included the late filing o f t h r e e w e e kly r eports, failure to submit d ocumentatio n o f c a l l s , t a r d y e x p e n s e r e p o r t s, unplanned PTO, and being late to pick u p Bachmann during a field visit. Perhaps i n a n effort to divert attention f

r o m her administrative deficiencies, Lorentz d r aws attention to Vlaanderen’s statement during the Septembe r 1 0 meeting that “[t]he bottom line

. . . [is] what did you do t oday to get that extra lens implanted t omorrow.
. . . That’s really all I c are about.” Lorentz’s argument appears t o be t h a t because she exceeded Alcon’s sales quota, she could not be terminated f o r f a i ling to complete comparably less-important administrative tasks. Aside from Alcon’s l e g i t i m ate interest in seeing Lorentz complete her a dministrative duties in a timely manner, Vlaanderen made clear t hat Lorentz could not ignore other parts of her job merel y b y k e eping her sales up. A t the September 10 m eeting, Vlaanderen told her that “I’m not s a ying that you had to t u r n the [sales] numbers around.

. . . I ’m s a ying that t he activities and the things that we want
you to do on a daily basis a re n ot getting done.” L orentz has failed to show that she was not deficient in h er work, or that Alcon was u n c o n c e r n e d with her

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failure to c omplete what she terms “ minor administrative tasks,” and thus has failed to establish pretext on these g r o u n d s. See Mayberry v. Vought Aircraft Co. , 5 5 F.3d 1 086, 1091 (5th Cir. 1995) (noting that even an incorrect belief that

an em p loyee’s p erformance is inadequate can c o nstitute a legitimate, nondiscriminatory reason f or an employment decision, and that e videntiary disputes concerning j ob performance are insufficient t o show th a t a proffered justification is unworthy of credence). C. Less Favorable Treatment Finally, Lorentz argues that she received less f avorable t reatment than other employees. See Vaughn , 665 F.3d at 637 (pretext may be shown “ where an employer treats one employee m ore harshly than other ‘ s imilarly situated’ employees for ‘nearly identical’ conduct”). Lorentz broadly a s s e r t s that, upon returning from F MLA leave, Bachman n a nd Vlaanderen imposed numerous additional administrative duties on her. She c ites the September 17 letter that required her to be in t he field without exception, m ake three calls p er business day to targeted surgeons, and prepare planned call reports a week in advance. However, she acknowledges that “administrative requests v aried” among employees and “[i]t just depended o n your manager.” She als o s k i p s o ver her lengthy h istory of sub-par performance, which led to t he additional supervision, institution of a PIP, and ultimately her termination. Lorentz a lso d oes not identify similarly situated individuals who had the

same performance deficiencies but were not subje c t e d to additional administrative duties. While she poi n t s t o h er replacement, Brook F., who allegedly performed below e xpectations, a n d was not placed on a PIP or terminated, Brooke F. was supervised by Bachmann f o r o n l y a short period of time. See Lee v. Kan. City S. Ry. Co

. , 5 7 4 F.3d 253, 259 (5th C ir. 2009) (“Employees w ith different supervisors

. . . g enerally w ill not be deemed similarly situated.”). Lorent z a l s o identifies Amanda Nissley and Kristin

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K e p r eos, both o f w hom went on FMLA l eave and subsequently l eft Alc o n ’ s employ. Like Lorentz, Nissley was put on a PIP after r etur n i n g f r o m FMLA leave. Unlike L orentz, s he was never s u pervised by Bachmann. See id. Kepreos

was investigated for misappropriatin g c o mpany funds shortly after she returned from FMLA l ea v e , a n d w as, like Lorentz, terminated. But Kepreos was not supervised by Bachmann when s h e took FMLA leave or when she was terminated. See id. Her situation further differs f rom Lorentz’s i n that Lorentz

was terminated for persistent performance deficiencies, w h e r e a s K epreos was terminated for a lleged malfeasance. See P erez v. Tex. Dep’t of Criminal Justice , 395 F.3d 206, 2 13 (5th Cir. 2004) (employees misconduct m ust have been “nearly identical”). Acc o r d ingly, none of the individuals Lorentz identifies are sufficiently similar to Lorentz to demonstrate that she either was treated less favorably, or that Alcon generally r e t a l i ated against employees who took F M LA leave. She thus has failed to meet her burden of showing pretext. IV. CONCLUSION Because Lorentz has failed to show that Alcon’s reason for t e rminating her

was pretextual, the district court’s g rant o f summary judgment i s AFFIRMED.

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