IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50670

MARGARITA GOMEZ, 

 Plaintiff - Appellant

v.

OFFICE ALLY, INCORPORATED; BRIAN O'NEILL, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:18-CV-1101

Before KING, JONES, and COSTA, Circuit Judges.

PER CURIAM:*

Office Ally, Inc. fired Margarita Gomez, a human resources manager in 

its San Antonio office. Gomez was fired soon after returning from leave she 

took to assist her mother who suffers from dementia. She sued Office Ally and 

its owner, Brian O’Neill, for various claims under the Family and Medical 

Leave Act (FMLA) and the Texas Commission on Human Rights Act (TCHRA). 

The district court granted summary judgment for Office Ally on all claims. 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 3, 2020

Lyle W. Cayce

Clerk

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No. 19-50670

2

Gomez appeals that decision as to two claims: FMLA retaliation and 

associational discrimination under the TCHRA. 

We agree that summary judgment was proper on Gomez’s FMLA 

retaliation claims for essentially the reasons the district court gave. Although 

Gomez establishes a prima facie case of retaliation, she cannot carry her 

burden of showing either that Office Ally’s proffered reasons for terminating 

her were pretext or that Office Ally had mixed motives for terminating her. 

Gomez was subject to a performance improvement plan before she took FMLA 

leave. And numerous employees filed complaints about her job performance, 

detailing incidents that occurred before she took leave. At the same time, other

Office Ally employees took FMLA leave without repercussion. In fact, O’Neill 

encouraged Gomez to take FMLA leave. Given the strong evidence supporting 

Office Ally’s proffered reason for terminating Gomez—namely, poor 

performance—she has not pointed to evidence creating a fact issue as to 

whether her taking FMLA leave was a reason Office Ally terminated her. See 

Grubb v. Sw. Airlines, 296 F. App’x 383, 390–91 (5th Cir. 2008) (per curiam) 

(affirming summary judgment in part because the suspicious timing of the 

plaintiff’s FMLA application and firing did not establish that his efforts to take 

FMLA leave were a reason he was fired “in light of an eighteen month record 

of warnings and performance problems”). 

The district court granted summary judgment on Gomez’s TCHRA 

associational discrimination claim on the ground that Texas law would not 

recognize such a claim. Texas courts have not addressed that question, and we 

do not need to. See Spencer v. FEI, Inc., 725 F. App’x 263, 267 (5th Cir. 2018)

(per curiam) (observing that the Fifth Circuit had not “explicitly recognized” a 

cause of action for associational discrimination even under the ADA but 

assuming without deciding that one existed to affirm summary judgment on 

ADA and TCHRA claims (quoting Grimes v. Wal-Mart Stores Tex., L.L.C., 505 

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F. App’x 376, 380 n.1 (5th Cir. 2013) (per curiam))). Assuming arguendo that 

an associational disability discrimination claim exists under Texas law, Gomez 

has not produced enough evidence to allow it to reach a jury. See McGruder v. 

Will, 204 F.3d 220, 222 (5th Cir. 2000) (“We need not accept the district court’s 

rationale and may affirm on any grounds supported by the record.”). 

Gomez pursues only a direct evidence theory of liability, asserting that 

two comments made by O’Neill prove discriminatory animus. The first is 

O’Neill’s recommendation that Gomez should not move her mother in with her

because it would be costly for her and could affect her work. The second is 

O’Neill’s complaint that Gomez stopped “pulling her weight . . . . when she 

moved her mother in[.]” Those comments are not direct evidence of 

discrimination because they do not tie Gomez’s termination to O’Neill’s alleged 

animus. See Jones v. Overnite Transp. Co., 212 F. App’x 268, 273 (5th Cir. 

2006) (per curiam) (explaining that supervisor’s racist comments were not 

direct evidence because they “lack[ed] the indicia of specificity and causation 

required to be direct evidence of race discrimination”); see also id. at 273–74 

(citing examples of remarks constituting direct evidence); see generally Brown 

v. CSC Logic, Inc., 82 F.3d 651, 655–56 (5th Cir. 1996) (holding that 

discriminatory remarks count as direct evidence only if, among other things, 

they relate to the challenged employment decision). And Gomez does not try 

to use the remarks as part of a broader circumstantial case to show that O’Neill 

was discriminating against her because of her mother’s condition. 

The judgment is AFFIRMED. 

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