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.

 29 U.S.C. §§ 2601-2654. 

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40709

Summary Calendar

TINA POWERS,

Plaintiff–Appellant,

v.

WOODLANDS RELIGIOUS COMMUNITY INC., doing business as

Interfaith of the Woodlands,

Defendant–Appellee.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 3:08-CV-11

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Tina Powers appeals the district court’s grant of summary judgment to

Woodland Religious Community Inc., d/b/a Interfaith of the Woodlands

(Interfaith) denying Powers’s claims under the Family Medical Leave Act1

United States Court of Appeals

Fifth Circuit

F I L E D

April 8, 2009

Charles R. Fulbruge III

Clerk
No. 08-40709

 29 U.S.C.A. §§ 621-634. 

2

James v. Tex. Collin County, 535 F.3d 365, 373 (5th Cir. 2008). 3

2

(FMLA) and the Age Discrimination in Employment Act (ADEA). We affirm in 2

part, vacate in part, and remand for further proceedings.

I

In January 2001, Interfaith hired Powers. Powers’s attendance was

acceptable from 2001 to 2005. Between August 2005 and January 11, 2006,

Powers was absent from work for thirty-five-and-one-half days on non-FMLA

leave. Powers was absent for an additional eighty-five days for leave taken

under the FMLA between January 12, 2006, and April 7, 2006. After a four-day

absence in May 2006, Interfaith terminated Powers for absenteeism. Powers’s

position was absorbed by three individuals who were forty-six, forty-nine, and

fifty-two years of age at the time of Powers’s termination. Powers was fortynine-years old when she was fired. 

Powers sued, alleging that Interfaith retaliated against her because she

exercised her rights under the FMLA. Powers also alleged that Interfaith

discriminated against her because of her race and gender in violation of Title

VII, because of her age in violation of the ADEA, and because of her alleged

disability in violation of the Americans with Disabilities Act (ADA). Powers

voluntarily dismissed her claims under Title VII and the ADA. The district

court granted summary judgment in favor of Interfaith on Powers’s claims under

the ADEA and FMLA. Powers timely appealed.

II

We review the district court’s grant of summary judgment de novo.3

Summary judgment is appropriate if “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to

any material fact and that the movant is entitled to judgment as a matter of
No. 08-40709

 F ED. R. CIV. P. 56(c). 4

 Robinson v. Orient Marine Co. Ltd., 505 F.3d 364, 366 (5th Cir. 2007). 

5

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th

6

Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). 

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 7

 411 U.S. 792, 802 (1973). 8

See Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 372 (5th Cir. 9

2008) (applying the McDonnell Douglas rubric to FMLA claims); Russell v. McKinney Hosp.

Venture, 235 F.3d 219, 222 n.3 (5th Cir. 2000) (applying the McDonnell Douglas rubric to

ADEA claims). 

Elsensohn, 530 F.3d at 372 (citations omitted). 10

3

law.” Any reasonable inferences are to be drawn in favor of the non-moving 4

party. “However, a party cannot defeat summary judgment with conclusory 5

allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’” “Rule 6

56(e) . . . requires the nonmoving party to go beyond the pleadings and by her

own affidavits, or by the ‘depositions, answers to interrogatories, and admissions

on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”7

Because Powers produced only circumstantial evidence of discrimination, the

burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green guides 8

our inquiry. 

9

A

To make a prima facie case for retaliation under the FMLA, a plaintiff

must show that: (1) she was protected under the FMLA; (2) she suffered an

adverse employment decision; and either (3a) 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. “[T]he plaintiff does 10

not have to show that the protected activity is the only cause of her
No. 08-40709

Mauder v. Metro. Transit Auth., 446 F.3d 574, 583 (5th Cir. 2006). 11

Id. 

12

 See id. (“When evaluating whether the adverse employment action was causally 13

related to the FMLA protection, the court shall consider the ‘temporal proximity’ between the

FMLA leave, and the termination.”).

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Hunt v. Rapides 14

Healthcare Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001) (applying the McDonnell-Douglas

framework to claims of retaliatory discharge under the FMLA).

4

termination.” Instead, the plaintiff need only show that “the protected activity 11

and the adverse employment action are not completely unrelated.”12

Powers has provided sufficient evidence to establish a prima facie case of

discrimination under the FMLA. It is undisputed that Powers was authorized

to take FMLA leave and was fired approximately one month after her return.13

Additionally, Powers has provided unrebutted evidence that Interfaith

characterized her FMLA leave as part of “Tina’s absences.” Because Interfaith

claims that it terminated Powers due to excessive absenteeism, Interfaith’s

characterization of her FMLA leave provides a causal link between Powers’s

FMLA leave and her termination.

Because Powers has provided sufficient evidence to establish a prima facie

case, the burden of production shifts to Interfaith to proffer a legitimate

nondiscriminatory reason for its decision. Interfaith’s stated reason for 14

Powers’s termination—absenteeism—is a legitimate nondiscriminatory reason

for its decision. Interfaith’s employee manual states that excessive absenteeism

will result in disciplinary action up to and including immediate termination.

Powers missed thirty-five-and-one-half days for non-FMLA leave over a span of

six months and another four days in the month following her FMLA leave. 

Because Interfaith has stated a nondiscriminatory reason for its decision,

Powers must show by a preponderance of the evidence that Interfaith’s reason
No. 08-40709

Hunt, 277 F.3d at 768. 15

 446 F.3d at 583 (affirming the district court’s conclusion that the plaintiff failed to 16

make the requisite showing that the employer’s stated reason for discharging him was mere

pretext for retaliation). 

See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (“[A] plaintiff can

17

avoid summary judgment and judgment as a matter of law if the evidence taken as a whole

(1) creates a fact issue as to whether each of the employer’s stated reasons was what actually

motivated the employer . . . .”), overruled on other grounds by Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133 (2000). 

5

is a pretext for retaliation. The record shows that Interfaith terminated 15

Powers one month after she returned from FMLA leave. The final event leading

to her termination was a single absence of four consecutive days due to a severe

spider bite. Powers has provided evidence that her immediate supervisor

approved this final absence. Further, Powers provides evidence that Interfaith

utilized its progressive disciplinary program with other employees but did not

use this program in Powers’s case. Unlike in Mauder v. Metropolitan Transit

Authority, in which the employer had already instituted disciplinary measures

for excessive tardiness before the plaintiff took FMLA leave, Interfaith admits 16

that it did not reprimand Powers for taking leave for which she was not eligible

between August 2005 and January 11, 2006. Examining the evidence presented

in the light most favorable to Powers, we conclude that a genuine issue of

material fact exists as to whether Interfaith’s purported reason was what

actually motivated it to terminate Powers. Therefore, we vacate the district 17

court’s grant of summary judgment on Powers’s FMLA claim.

B

Powers also contends that the district court erred in granting summary

judgment on her ADEA claim. “To make out a prima facie case of discriminatory

treatment based on age, the plaintiffs are required to prove: (1) they are within

the protected class; (2) they are qualified for the position; (3) they suffered an

adverse employment decision; and (4) they were replaced by someone younger
No. 08-40709

Smith v. City of Jackson, 351 F.3d 183, 196 (5th Cir. 2003). 18

See 29 U.S.C. § 631(a) (stating that the protections in the ADEA are limited to 19

individuals who are at least forty years of age). 

See Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 305 (5th Cir. 2000) (“There was 20

no evidence, for example, that United Companies . . . complied with standard disciplinary

procedures when filing reports on younger workers but flouted them when it came to [the

plaintiffs].”). 

See Berquist v. Wash. Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007) (“In disparate 21

treatment cases, the plaintiff-employee must show ‘nearly identical’ circumstances for

employees to be considered similarly situated.” (quoting Perez v. Tex. Dep’t of Criminal Justice,

395 F.3d 206, 210 (5th Cir. 2004))).

6

or treated less favorably than similarly situated younger employees (i.e., suffered

from disparate treatment because of membership in the protected class).” The 18

parties agree that Powers satisfies the first three elements to establish a prima

facie case. However, Powers fails to satisfy the fourth element. 

Powers was not replaced by someone outside of the protected class.

Instead, Powers’s position was absorbed by three individuals who were over forty

years of age. Thus, we need only determine whether Powers was treated less 19

favorably than similarly situated younger employees. 

In her initial disclosures, Powers claims that twelve people were treated

better than her. Of these twelve, seven are forty-years old or older. Therefore,

by Powers’s own account, Interfaith treated both younger and older employees

better than her. Powers also claims that Interfaith failed to follow the normal

disciplinary procedures before terminating her because Interfaith did not use its

progressive discipline policy, Employee Assistance Program, or Corrective Action

Plan. Yet, Powers does not assert that these procedures were utilized for

younger workers but not for older ones. 

20

Further, the evidence fails to show that any of the people Powers listed as

being treated better than her were similarly situated. In her “List of 21

Employees Treated Better,” Powers does not provide the ages of any of the
No. 08-40709

22 See Wyvill, 212 F.3d at 302-03 (“This court and others have held that testimony from

former employees who had different supervisors than the plaintiff, who worked in different

parts of the employer’s company, or whose terminations were removed in time from the

plaintiff’s termination cannot be probative of whether age was a determinative factor in the

plaintiff’s discharge.”). 

See Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 641 n.9 (5th Cir. 23

1985) (“In the employment discrimination context, a prima facie case is established if the

plaintiff merely satisfies the standing requirements of the ADEA and presents evidence of

differential treatment of younger and older employees. Given these minimal requirements,

the failure to establish a prima facie case generally means that there are no material facts at

issue.”), overruled on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 513

(1993).

7

persons listed; instead, she describes several of the persons as being

“substantially younger.” Powers also fails to detail the number of absences for

each employee or the time period in which these absences occurred, except in one

case in which she states that the person was absent for a single period of more

than thirty days after having a miscarriage. Additionally, Powers described the

positions of only three employees. Of the two employees with a similar position

as pre-employment screeners, Powers does not allege that these employees

missed work; she complains only that they worked from home. Also, six of the

listed employees left Interfaith of their own volition and only two employees

were terminated for unlisted reasons. Finally, Powers does not detail the tenure

of the employees except in one circumstance not similar to Powers. Such

anecdotal evidence does not place any of these current and former employees in

a similar situation as Powers. 

22

Because Powers fails to present evidence that creates a genuine issue of

material fact as to whether she proved that she was replaced by someone

younger or treated less favorably than similarly situated younger employees,

Powers’s ADEA claim fails.23
No. 08-40709

8

* * *

We AFFIRM in part, VACATE in part, and REMAND for further

proceedings.