* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 29 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KIM TRUJILLO-CUMMINGS, Plaintiff - Appellant, v. PUBLIC SERVICE COMPANY OF NEW MEXICO, Defendant - Appellee. No. 97-2337 (D.C. No. CIV-96-1186-BB) (District of New Mexico)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY and LUCERO , Circuit Judges.

Kim Trujillo-Cummings appeals the district court’s grant of summary judgment for defendant Public Service Company of Ne w Mexico (“PNM”) on her retaliation claims under Title VII of the Civil Rig hts Act of 1964 and the Family Medical Leave Act (“FMLA”). We have jurisdiction p ursuant to 28 U.S.C. § 1291, and affirm.
I-2-

Trujillo-Cummings was hired as a Senior Media Repre sentative by PNM in late 1993. Soon thereafter, she began to express f rustration with the overly controlling supervision and unwanted confidences sh e received from her supervisor, Rick Brinneman. She repeatedly complai ned to PNM authorities that Brinneman’s conduct constituted race and sex discri mination. In March 1995, Trujillo-Cummings bore a child and t ook forty-five days of paid leave. Upon her return, she and Brinneman imp lemented an arrangement allowing her to work at home for up to two days perweek. Brinneman terminated this arrangement after a short time. During the sa me period, Trujillo-Cummings requested an arrangement that would allow her to sh are her position with another employee. Her request was denied. In August 1995, Trujillo-Cummings took an unschedul ed leave from her job, leading to an exchange of correspondence regar ding issues of medical leave, that the district court described in some detail: [Trujillo-Cummings] submitted a note from her docto r that did not state the nature of her medical difficulties, but s imply stated that Plaintiff would need to be on medical leave for at least six and possibly eight weeks. Before Brinneman received th is note, he wrote a letter to Plaintiff on August 25 indicating that she needed to report to work by August 30 or resign her position. AfterBrinneman received the note, he wrote a second letter on Augu st 28, denying Plaintiff’s request for leave because the doctor’s note provided insufficient information supporting the request. B rinneman enclosed a form for the doctor to fill out, that would provi de the necessary information. Three days later, on August 31, Brinn eman responded to a letter written by Plaintiff’s psychologist, wh o had seen Plaintiff1 The district court granted summary judgment for defendant on plaintiff’s hostile

environment theory, which Trujillo-Cummings does not appeal. -3- once and diagnosed her with Adjustment Disorder andsupported her request for time off work. Brinneman’s August 31 l etter stated that PNM required second opinions from a medical doctor and a psychologist, concerning Plaintiff’s condition. Br inneman also notified Plaintiff that while her request for leave was being considered, her position would not be held for her, but if the leave was granted she would be eligible to apply for any vacant position for which she was qualified. Trujillo-Cummings v. Public Service Co. , No. CIV 96-1186, mem. op. at 3-4 (D.N.M. Sept. 15, 1997) (hereinafter “Mem. Op.”). Trujillo-Cummings did not attend the examinations that PNM scheduled for her. PNM terminated her employment as of September 22, 1995. Having exhausted her EEOC remedies, Trujillo-Cummin gs sued, alleging violations of Title VII (on theories of both hostil e environment and retaliation), the FMLA, and state law. The district court grante d summary judgment for defendant on all claims. 1
II “We review a grant of summary judgment de novo, app lying the customary legal standard under Fed.R.Civ.P. 56(c).” Vice v. Conoco, Inc. , 150 F.3d 1286, 1288 (10th Cir. 1998) (citations omitted). Trujillo-Cummings claims that the district court er red in granting summary judgment by “refusing to consider complaints made b y the Plaintiff as protected-4-

actions if they occurred more than four months befo re removal and termination” and by “ignoring the pattern of antagonistic behavi or toward plaintiff and other evidence of causation.” Appellant’s Br. at 1. “To establish a prima facie case of retaliation, a plaintiff must show: (1) protected o pposition to discrimination; (2) adverse action by an employer contemporaneous with or subsequent to the employee’s protected activity; and (3) a causal con nection between such activity and the employer’s action.” Purrington v. Universi ty of Utah , 996 F.2d 1025, 1033 (10th Cir. 1993) (Title VII retaliation claims ); see also Richmond v. Oneok,
Inc. , 120 F.3d 205, 208-09 (10th Cir. 1997) (applying s ame standard to FMLA retaliation claims). The third element of the prim a facie case—causal connection—can be demonstrated either by direct evi dence or by inferences stemming from “protected conduct closely followed b y adverse action.” Marx v. Schnuck Markets , 76 F.3d 324, 329 (10th Cir. 1996). However, establishing a prima facie case does not m eet a plaintiff’s ultimate burden of showing illegal discrimination; rather, we apply to retaliation claims the burden-shifting framework set forth in M cDonnell Douglas Corp. v.
Green , 411 U.S. 792, 802-03 (1973). See Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997) (FMLA retaliation); Berry v. Stevinson Chevrolet , 74 F.3d 980, 985 (10th Cir. 1996) (Title VII retaliation) . Under this framework, once a plaintiff establishes a prima facie case of discrim ination, defendant has an-5-

opportunity to rebut this prima facie case by offer ing legitimate business reasons for the adverse action. See McDonnell Douglas , 411 U.S. at 802-05 (1973); Medlock v. Ortho Biotech, Inc. , 164 F.3d 545, 549-50 (10th Cir. 1999). Once defendant offers such reasons, a plaintiff must off er evidence that defendant’s reasons are pretexts for illegal discrimination in order to carry his or her ultimate burden of establishing discrimination. See Medlock , 164 F.3d at 550. “[P]rotected conduct closely followed by adverse ac tion may justify an inference of retaliatory motive . . . . [T]he phras e ‘closely followed’ must not be read too restrictively where the pattern of retaliatory conduct begins soon after the filing of the . . . complaint and only culminates l ater in actual discharge.” Marx , 76 F.3d at 329 (citation omitted). However, absentsuch a pattern of conduct, we have declined to infer retaliatory motive from adve rse employment actions occurring three months after a protected action. S ee Richmond , 120 F.3d at 209. We first conclude that the district court was corre ct in finding no prima facie case of retaliation based on Trujillo-Cumming s’ claim that she suffered increased harassment, the revocation of the work-at -home arrangement, and denial of her job-share request in retaliation for her complaints against Brinneman. Our independent review of the record confirms that plai ntiff has offered no disputed material facts pointing to any increase in harassme nt following her complaints that could rise to the level of an adverse employme nt action. With respect to the-6-

work-at-home arrangement and job-share request, we agree with the district court’s conclusion that the earlier complaints were too remote in time to support an inference of causation, and that the lack of any evidence of Brinneman’s knowledge of the May 1995 complaint refutes any inf erence that the complaint caused the requests’ denial. See Conner v. Schnuck Markets , 121 F.3d 1390, 1395 (10th Cir. 1997) (“Unless the termination is v ery closely connected in time to the protected conduct, the plaintiff will need t o rely on additional evidence beyond mere temporal proximity to establish causati on.”) Here, in light of both the lack of temporal proximity and several interven ing positive employment actions, including both a favorable evaluation and the initial grant of the work-athome arrangement, Trujillo-Cummings does not meet h er burden of establishing an inference of causation. See id. Second, as to those claims for which she met her in itial burden of offering a prima facie case of retaliation, the district cou rt was correct in concluding that Trujillo-Cummings fails to prove intentional discri mination. The fact that temporal proximity may support an inference of caus ation sufficient to establish a plaintiff’s prima facie case does not automatically demonstrate that a defendant’s proffered justifications are pretextual. While a d ischarge is retaliatory if “the immediate cause or motivating factor of a discharge is the employee’s assertion of statutory rights,” Martin v. Gingerbread House, Inc

. , 977 F.2d 1405, 1408 (10th2 Although at least one circuit has implicitly criticized as unnecessary our use of

the McDonnell Douglasframework in retaliation claims based on assertions of substantive statutory rights such as those established by the FMLA, seeDiaz v. Fort Wayne Foundry Corp. , 131 F.3d 711, 713 (7th Cir. 1997), that framework clearly remains the law of FMLA retaliation claims in this circuit. SeeRichmond , 120 F.3d at 209 (affirming grant of summary judgment on FMLA retaliation claim because plaintiff “did not carry her burden of showing that [employer’s] proffered reasons for her dismissal were pretextual”). -7- Cir. 1992) (citations and footnote omitted), appell ant confuses the inference of causation sufficient to establish a prima facie cas e of discrimination with her ultimate burden of proving that the protected actio n was indeed the cause of the discharge. Once the employer meets the second step of McDonnell Douglas , the inference of causation drops out, and a plaintiff d oes not carry his or her burden until he or she offers some evidence of pretext in the employer’s legitimate
reason. See Conner , 121 F.3d at 1397 (refusing to read Marxas “holding that protected conduct closely followed by adverse actio n always justifies an inference of retaliatory motive, and thus summary judgment is always inappropriate when temporal proximity is established”). 2 Therefore, we agree with the district court that, a ssuming a prima facie case of retaliation, plaintiff has offered no evidence o f pretext in PNM’s denial of her request for medical leave. Trujillo-Cummings’ refu sal to comply with PNM’s exercise of its statutory right to obtain a second medical opinion before granting FMLA leave, see 29 U.S.C. § 2613(c), is clearly a legitimate justi fication for its3Although plaintiff raises a disputed issue of fact as to whether an initial FMLA

certification was timely sent to defendant by her doctor, this dispute is not material and thus does not defeat summary judgment, as it is undisputed that plaintiff refused to comply with defendant’s requests for second medical and psychological opinions. -8- denial of that request. 3 Trujillo-Cummings’ only attempt to demonstrate pr etext in this denial appears to be her assertion that “[t ]he exchange of correspondence over the last five or six weeks of her employment d emonstrates a shifting approach to the employer’s subtly hidden goal: term ination of Plaintiff. The letters should be carefully read in sequence to und erstand the goal and the movement in that direction.” Appellant’s Br. at 14 . After carefully reading the correspondence contained in the records, we can dis cern no “subtly hidden goal” indicative of pretext. Trujillo-Cummings also appears to contend that the district court erred both in requiring her to show pretext and in finding no pretext with respect to her claim that her ultimate termination was retaliatory . Assuming again the existence of a prima facie case of retaliation, plaintiff can not seriously contest that her refusal to show up for her job for over a month doe s not constitute a facially legitimate justification for her termination. Ther efore, she must raise at least some evidence of pretext to survive summary judgmen t, because “an employee who requests FMLA leave [has] no greater protectionagainst his or her employment being terminated for reasons not related to his or her FMLA request4Although the district court appeared concerned that PNM’s letter of August 31,

1995, stating that Trujillo-Cummings would be allowed to reapply for vacant positions, could be construed as a potential violation of the FMLA, seeMem. Op. at 19 n.5, weagree with it that this statement cannot constitute a FMLA violation because TrujilloCummings never established her initial entitlement to FMLA leave. See29 U.S.C. § 2614(a)(1)(B). Nor does this letter refute PNM’s business justifications for requiring prompt coverage of her job duties. -9- than he or she did before submitting the request.” Gunnell v. Utah Valley State College , 152 F.3d 1253, 1262 (10th Cir. 1998). Although T rujillo-Cummings raises disputes of fact as to the precise nature of her employment status during the period following August 11, these disputes do not a ddress the material propositions that she remained absent from her job for over a month without ever satisfying PNM’s valid FMLA requests, and that she ultimately refused to return to work. 4 We find no evidence of pretext here. Trujillo-Cummings argues that delay in ultimately filling her position and Brinneman’s later departure from his position constitute evidence that business necessit ies did not in fact compel the immediate filling of her position. In light of PNM ’s efforts to return her to work and its uncertainty as to whether she would return, the delay in filling her position does not demonstrate pretext. Likewise, Brinneman’ s later transfer, pursuant to PNM internal promotion policies, fails to show thatPNM’s business justifications for indicating an intent to fill Trujillo-Cummings’ position were pretextual. Nor do her own proffered reasons for refusing to attend two rounds of scheduled-10-

examinations show pretext on the part of PNM. Ther efore, we agree with the district court that the summary judgment materials, viewed in the light most favorable to the plaintiff, fail to establish mater ial issues of fact sufficient to support her retaliatory termination claim. Finally, appellant’s assertion that her claims sho uld survive summary judgment based on a mixed motive theory, see Kenworthy v. Conoco , 979 F.2d 1462, 1470-71 (10th Cir. 1992), is without merit. Trujillo-Cummings fails to “introduce direct or circumstantial evidence that t he alleged retaliatory motive ‘actually relate[s] to the question of discriminati on in the particular employment decision[s]’” at issue. Medlock , 164 F.3d at 550 (quoting Thomas v. National Football League Players Ass’n , 131 F.3d 198, 204 (D.C. Cir. 1997)). Because she presents no “evidence of conduct or statement by pe rsons involved in the decisionmaking process that may be viewed as direct ly reflecting the alleged [retaliatory] attitude,” her claim cannot survive s ummary judgment on a mixed motive theory. Thomas v. Denny’s, Inc. , 111 F.3d 1506, 1512 (10th Cir. 1997) (citations and internal quotations omitted). We review a grant of summary judgment in a discrimi nation case to determine “whether the evidence, interpreted favora bly to the plaintiff, could persuade a reasonable jury that the employer has di scriminated against the plaintiff.” MacDonald v. Eastern Wyoming Mental He alth Center , 941 F.2d 11155 We note that the district court was also correct in granting PNM’s summary

judgment motion on Trujillo-Cummings’ state law wrongful termination claim. Under New Mexico law, such claims are governed by the same principles as her federal law retaliation claims. SeeChavez v. Manville Products Corp. , 777 P.2d 371, 376-77 (N.M. 1989). -11- (10th Cir. 1991) (quoting Palucki v. Sears, Roebuck& Co. , 879 F.2d 1568, 1570 (7th Cir. 1989)). We agree with the district courtthat plaintiff’s evidence could persuade no reasonable jury that PNM retaliated aga inst her for her exercise of protected rights under either Title VII or the FMLA

. 5 Therefore, the judgment of the district court is AFFIRMED

. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge