### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 12-30013

MARTHA LUSHUTE, Plaintiff-Appellant,
v. STATE OF LOUISIANA, DEPARTMENT OF SOCIAL SERVICES, Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Louisiana Case No. 3:10-cv-00252

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges. PER CURIAM: * Plaintiff Martha Lushute appeals the dismi s s al of her claims for retaliation for taking intermittent leave under th e F a m ily Medical Leave Act, 29 U.S.C. § 2601, et seq. (FMLA), on summary judgment. Two discriminatory

actions by the defendant are alleged: a “needs improvement” performanc e r atin g in April 2008 and a change in her work schedule in May 2009 from a four day/ forty hour week to a five day / forty hour week. Lushute argues that there are genuine issues of fact regarding defendant’s motivation for taking these actions. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D May25 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-30013 Document: 00511867656 Page: 1 Date Filed: 05/25/2012No. 12-30013

The FMLA permits employees to take reasonable leave from their jobs for

m edical reasons. Section 2615(a)(2) of the FMLA makes it “unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practi c e m a de unlawful by this chapter.” To state

a prima facie case for retaliation under § 2615(a)(2), a plaintiff must show that: (1) she was protected by the FMLA, and (2) she suffered an adverse employment decision; and either (3) a) that she was treated less favorably than an employee who had not requested leave under the FMLA; or b ) the adverse decision was made because she took FMLA leave.
Hunt v. Rapides Healthcare Sys., L.L.C., 277 F.3d 757, 768 (5th Cir. 2001). After

a plaintiff demo n s t r a t e s a prima case of FMLA discrimination, the burden of production rests on the defendant to articulate a legitimate, non-discriminatory

reason for its decision to institu t e the adverse employment action against the plaintiff. Rachid v. J a c k in the Box, Inc. , 376 F.3d 305, 312 (5th Cir. 2004); Richardson v. Monitronics Int’l, Inc. , 434 F.3d 327 (5th Cir. 20 05). If the defendant does so , th e n the plaintiff must either prove the proffered reason is untrue, i.e. a pretext for discrimination, or prove that the proffered reason, while true, was o nly o n e o f the reasons for its conduct, another motivating factor of which was retaliatory for plaintiff’s exercise of a protective right. Rachid , 376 F.3d at 312-13. If plaintiff proves an illegitimate motivating factor existed, the defendant has the opportunity to demonstrate that it would have taken the same action in the absence of the impermissible motivating factor. Id. The district court found that Lushute failed to make out a prima facie case of discrimination and failed to put into genuine issue any mate ri al f a ct which might prevent judgment as a matter of law. As to the poor performance rating, the distri ct court found that the plaintiff could not overcome the d e f endant’s same decision defense. Lushute

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does not specifically address what evidence in the record creates a genuine issue

as to this employment action. In addition, the district court found that once the

c o u rt excluded allegations outside the two year statute of limitations wind o w , the uncontroverted facts demonstrated that the April 2008 review occurred after Lushute’s first formal FMLA re qu e s t i n July 2008, negating any causal connection between the employment action and Lushute’s exercise of her rights under the FMLA. We agree. As to the change in Lushute’s work schedule, the district court found that the change was not an adverse employment action. Again, we agree. Materially adverse actions are not lim i t e d to ultimate employment decisions but include any actions that would dissuade a reasonable employee from exercising his rights under the FMLA. Burlington Northern & Santa Fe Ry. v. White , 548 U.S. 53, 126 S. Ct. 2405, 2409, 165 L. Ed. 2d 345 (2006). In other words, an employee suffers an "adverse employment action" if "a reasonable employee would have found the challenged action materially adverse, which in this context means it

w e l l might have dissuaded a reasonable worker from making or supporti n g a charge of discrimination." McArdle v. Dell Prods., L.P. , 293 Fed. Appx. 331, 337 ( 5 th C ir . 2 008)(unpublished) (quoting Burlington Northern & Northern Santa F e Railway Co. v. White , 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), and applying the expanded definition of adverse employment action to FMLA cases),

see also Pryor v. Wolfe , 196 Fed. Appx. 260, 263 (5th Cir. 2006)(unpublished); Breneisen v. Mot o ro la, Inc. , 512 F.3d 972, 979 (7th Cir. 2008). The change in Lushute’s work schedule, basically a shift change, from a four day week to a five day week with n o c h a n g e in total hours or compensation, is not an ultimate employment decision under pre- Burlington Northern jurisprudence. Hunt, 277 F.3d at 769. I n addition, the record reflects that a four day work week is an alternative schedule that is sometimes offered as a privilege to DSS employees. It is not a ri ght. DSS treated other workers similarly, switching them from a
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four to five day work week when they were unable to adequately manage their

case loads. This action would not have di s s uaded a reasonable worker from making or supporting a charge of discrimination. Accordingly, we agree that Lushute has not made out a prima facie case of retaliation under FMLA an d the district court’s judgment dismissing her claims on summary judgment was correct. This decision could also be justified

on the basis of inadequate briefing by th e p l aintiff. Lushute argues only that issues of fact exist a s t o th e defendant’s motivations for changing her work schedule. She makes the assertion that “Defendant admitted that it considered the time she was off from work on leave pursuant to the FMLA as a reason for taking said action.” H o w e v e r, her argument consists entirely of a legal discussion relating to th e m ixed motive analysis, which authority the district court also cited. Critically, she did not relate the legal discussion to the facts of this case or provide citations to the record to support her assertion of improper motivation. See Fed. R. App. Proc

. 28(a)(9)(A). We need not consider inadequately briefed issues. AFFIRMED.

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