United States Court of Appeals

Fifth Circuit



## FILED

January 25, 2006

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 05-60501

Summary Calendar

_______________



### C HARLEAN 

### M C 

### D ONALD



### ,

Plaintiff-Appellant,

VERSUS



### E NTERGY 

### O PERATIONS



### , I NC



### ., ET 

### A L



### .,

Defendants,



### E NTERGY 

### O PERATIONS



### , I NC 

### .; U NUM 

### P ROVIDENT 

### C ORPORATION 

### ; H EATHER 

### F RIANT



### ,

Defendants-Appellees.

____________________________________

Appeal from the United States District Court

for the Southern District of Mississippi



### m 5:03-CV-241

____________________________________2

Before S MITH

, G ARZA , and P RADO

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge: *

Charlean McDonald, pr oceeding p ro se

, appeals the summary judgment dismissal of her

e m ployment discrimination claims against

Entergy Operations, Inc. (“Entergy”), and her

ERISA claims against UnumProvident Corporation (“UnumProvident”) and Heather Friant,

an emp l oyee of UnumProvident. Finding no

genuine issue of material fact, we affirm.

I.

Charlean McDonald, a black woman, was

hired by Enter gy in 1981 and worked there

continuously, primari l y in clerical positions,

until January 2002. In 2001, McDonald sued,

asserting that Entergy had di s criminated

agai nst her on account of race by failing to

prom ote her, by paying her a disparate wage,

and by generally creating adverse working

condi t io ns. That suit was dismissed on summary judgment, which was affirmed in McDonald v. Entergy Operations, Inc.

, 75 Fed.

Appx. 279 (5th Cir. 2003) (“ McDonald I

”).

In January 2002, McDonald was involved

in an automobile accident; she consulted mult iple doctors for the treatment of resulting back

and neck pain. In July 2002 she submit t ed a

claim for long-term disabilit y benefits to Unum

L ife Insurance Company of Am eri ca

(“Unum”), a subsidiary of UnumProvident responsible for administering benefits under the

Entergy Corporati on Comp anies’ Benefit s Plus

Long Term Disability Plan (“the Plan”). Although Unum init ially approved McDonald’s claim in Se p tember 2002, it requested

that she have her physician complete forms, to

be submitted to Unum, describing the extent of

her injuries and her current functional abilit ies.

None of the p hysicians McDonald had consulted agreed to fill out the required forms,

because each thought McDonald was not disabled. Based on the medical opinions and the

information it received from Entergy regarding

the physical requirements of McDonald’s job,

Unum in April 2003 determi ned there was

insufficient evidence to support McDonal d’s

claim o f total disability and discontinued her

benefits.

I n the meantime, in December 200 2 McDonald had filed another claim of discrimination against Entergy with the E qual Employment Opportunity Commission (“EEOC”), asserting that Entergy had subjected her to terms

and conditions of employment differe nt f rom

those of her co-workers in retal iation for her

filing the discrimination suit in M cDonald I

. 1

In January 2003 the EEOC dismissed McDonald’s claim and issued her a right to sue letter.

In April 2003 McDonald sued Ent ergy 2

alleging violations of title VII, 42 U.S.C.

§ 2000e et seq. , and 42 U.S.C. § 1981 for re-

* Pu rsuant to 5 T H C IR

. R. 47.5, the court has

determined that thi s opinion should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R . 47.5.4. 1 McDonald stated that the terms and conditions

of employment included the monitoring of her

telephone calls by the company attorney, charging

her absence from work as vacation time rather than

short-term disability leave, and failure to give her

an “outage incentive check” for 2002.

2 McDonald’s complaint also lists as defendants

various individual employees of Entergy, T. Roe

Pr i ce Retirement Plan Services, Inc., and the law

firm of Wise, Carter, Child & Ca rraway, P.A.

Each of those defendants was dismissed from this

case, and McDonald does not appeal that order.3

taliation (in terms of the imposition of adverse

working conditions and, ultimately, termination). In addition, she asserted claims against

UnumProvident and Hearthe r Friant under

ERISA, 29 U.S.C. § 1001 et seq.

, for denial of

disabilit y benefits. 3 The court found no genuine issue of material fact with regard to any of

McDon a ld’s claims and granted summary

judgment, dismissing all claims with prejudice.

II.

Summary judgment “shall be rendered

forthwith if the pleadings, depositions, answers

to interrogatories, and admissions on file,

together with affidavits, if any, show that there

is no genuine issue as to any material fact and

that the moving party is entitled to a judgment

as a matter of law.” F E D

. R. C IV

. P. 56(c).

We review the grant of summary judgment de

novo

, using the same criteria employed by the

district court. P atterson v. Mobil Oil Corp.

, 335 F.3d 476, 487 (5th Cir. 2003).

[ T]he plain language of Rule 56(c) mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence

of an element essential to that party’s case,

and o n which that party will bear the burden of proof at trial. In such a situat ion,

t here can be ‘no genuine issue as to any

material fact,’ since a complete failur e of

proof concerning an essential element of

the nonmoving party’s case necessarily renders all other facts immaterial. Celote x Corp. v. Catrett , 477 U.S. 317, 322-

23 (1986)

. The plaintiff bears the initial burden of establishing a p rima facie case of employment discrimination. To state a p rima facie case for retaliatory discharge

, a plaintiff

must establish, inter alia

, that ther e was a

causal link between the protected action taken

by the plaint iff and the subsequent termination.

See Mota v. Univ. of Tex. Houston Health Sci.

Ctr. , 261 F.3d 512, 519 (5th Cir. 2001).

The district court found that Entergy was

entitled to judgment as a matter of law on the

title VII and § 1981 retaliatory discharge

claims because, even assuming that McDonald

had no t voluntarily ended her employment

with Entergy, 4 McDonald brought forth no evidence of a causal link between the filing of her

suit and her alleged termination.

We agree with the district court. Not only

did McDonald fail to present any evidence,

other than pure speculation, of a causal link,

but she stated in de po sit ion that her employment with Entergy ended because she was unable to perform her job duties, not because she

had sued. McDonald’s claims of retaliatory

discharge under title VII and § 1981 therefore

fail as a matter of law. 5

3 Altho ugh McDonald’s enumerated claims

mention § 1981, none of them refers specifically to

tit le VII or ERISA. We agree with the district

court, however, that because M cDonald is proceeding pro se

, her complaint should be read liberally.

S ee Atchison v. Collins

, 288 F.3d 177, 179 n.2

(5th Cir. 2002). 4 Whether McDonald was actually fired is an

issue in dispute.

5 McDonald also asserts that Entergy imposed

adverse working conditions, in the form of monitorin g her phone calls and invading her privacy, in

retaliation for the filing of suit. This retaliation

claim is wholly without merit. It is based entirely

on the fact that an employee of Entergy listened to

a voicemail message relevant to McDonald’s longterm disability claim that McDonald had voluntarily left for him and then gave a transcript of that

message to Entergy’s attorney. McDonald does

(continued...)4 III.

To determine whether UnumProvident and

its employ ee, Friant, are entitled to judgment

as a ma t t er of law on McDonald’s ERISA

claims, we must first consider what standard of

review applies to the plan administrator’s decision to deny benefits in this case. Where, as

here, a policy gives an administrator discretionary authority over a claimant’s entitlement

to benefits, we review a denial of benefits for

abu se of discretion. V

ega v. Nat’l Life Ins.

Servs., Inc.

, 188 F.3d 287, 295 (5th Cir. 1999)

(en banc). Less deference is given under the

abuse of discretion standard where an administrator is self-interested. Id . at 296.

The district court found that UnumProvident was not operating under a conflict of interest in administering t h e Entergy plan. We

have no reason to dispute t hat finding and

therefore apply a pure abuse of discretion standard to UnumProvident’s dec ision to deny

McDonald’s claim for long-term disabilit y

benefits.

UnumProvident asserts that it ultim ately denied benefits because McDonald never submitted a physician’s certification of her physical limitations and presented no medical evidence indicating she was unable to perform the

material duties of her job. Because McDonald

has offered no coherent challenge to the merits

of UnumProvident’s decision, there is no basis

for finding abuse of discretion.

AFFIRMED. 6

5 (...continued)

not point to any violation of law occasioned by this

action.

6 Entergy’s motion to strike portions of McDonald’s reply brief is DENIED.