* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20881

Summary Calendar

TRACY COMEAUX-BISOR,

Plaintiff-Appellant,

v.

YMCA OF GREATER HOUSTON,

Defendant-Appellee.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:06-CV-2836

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Tracy Comeaux-Bisor appeals from the district court’s

grant of summary judgment in favor of the Defendant-Appellee YMCA of

Greater Houston (“YMCA”). Before the district court, Comeaux alleged

violations under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a), and the

Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”). On appeal,

Comeaux contends that the district court erred in its grant of summary

United States Court of Appeals

Fifth Circuit

F I L E D

August 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-20881

2

judgment because (1) it should have liberally construed her briefs because she

was pro se; (2) she presented sufficient evidence that she suffered from a serious

health condition, and therefore she should have been granted temporary leave

under FMLA; and (3) there existed a genuine issue of material fact on her Title

VII claim. For the following reasons, we affirm the ruling of the district court.

We also consider the YMCA’s motion to strike portions of Comeaux’s reply brief.

That motion is GRANTED. 

I. Factual and Procedural Background

Comeaux was hired by the Post Oak YMCA in Houston in 2001 and

promoted to Membership Coordinator in 2004. Beginning in February 2005,

Comeaux, who was pregnant atthattime, began missing work frequently. After

being contacted by her supervisor regarding her absences, Comeaux requested

twelve weeks of leave under the FMLA, starting on March 7, 2005, and ending

May 30, 2005, citing pregnancy related complications. 

Yolanda Wright, Human Resources Generalist for the YMCA, processed

Comeaux’s request for FMLA leave. She requested that Comeaux have her

doctor complete a Certification of Health Care Provider in order to verify that

the leave was medically necessary. In her affidavit, Wright indicated that she

contacted Comeaux a number of times to explain to her that her request for

leave could not be granted without the medical certification. She also stated

that she sent Comeaux a letter on April 29, 2005, memorializing their

conversations and informing Comeaux that her request for leave would be

denied unless she submitted the certification by May 14, 2005. Comeaux

submitted the medical certification on May 13, 2005. In the certification, Dr. M.

Turrentine stated that Comeaux was able to work but would require medical

leave following child birth and would be unable to work for six weeks

immediately following the birth. Dr. Turrentine noted that the only additional

treatment required for Comeaux’s condition was “routine prenatal care.”
No. 07-20881

3

Additionally, Wright spoke with Dr. Turrentine by phone who reiterated at the

time that Comeaux was capable of working.

Comeaux provides only a slightly different account of the events during

this time period. According to her, she believed that she had been approved for

medical leave and did not learn until April 29, 2005, that her doctor had not sent

in the medical certification form. She also contends that she provided the YMCA

with the medical certification in the form of a written statement from her doctor

on May 3, 2005, and then additional certification on the form provided by the

YMCA on May 13, 2005. She does not contest that the May 13, 2005, medical

certification form indicated that she was able to work at that time, and up until

the time of childbirth. A June 8, 2008 letter terminated Comeaux and stated

that she was ineligible for FMLA leave.

II. FMLA Claim

Comeaux contends that she presented sufficient evidence that she suffered

from a serious health condition, and, therefore should have been granted

temporary leave under FMLA. The YMCA responds that Comeaux failed to

establish a prima facie case for discrimination or retaliation under FMLA

because she cannot show that she is protected under FMLA.

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

applying the same rules as the district court. See Hansen v. Cont’l Ins. Co., 940

F.2d 971, 975 (5th Cir. 1991). Summary judgment is only appropriate when

there are no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law. See Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586-87 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986) (“Rule 56(c) mandates the entry of summary judgment . . . against a

party who fails to make a showing sufficient to establish the existence of an

element essential to that party's case, and on which that party will bear the

burden of proof at trial.”).
No. 07-20881

4

Pursuant to the FMLA, “an eligible employee shall be entitled to a total

of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious

health condition that makes the employee unable to perform the functions of the

position of such employee.” 29 U.S.C. § 2612(a)(1)(D). The FMLA protects

employees from interference with their leave, as well as discrimination or

retaliation for exercising their rights. 29 U.S.C. §§ 2615(a)(1)-(2). To establish

a prima facie case for discrimination or retaliation under the FMLA, a plaintiff

must demonstrate that she is protected under the FMLA; she suffered an

adverse employment decision; and that she was treated less favorably than an

employee who had not requested leave under the FMLA or that the adverse

decision was made because of her request for leave. Bocalbos v. Nat’l Western

Life Ins. Co., 162 F.3d 379, 384 (5th Cir. 1998). If the plaintiff succeeds in

establishing a prima facie case, the burden shifts to the employer to provide a

legitimate nondiscriminatory or non-retaliatory reason for the termination. Id.

If the employer articulates such a reason, the plaintiff must show by a

preponderance of the evidence that the employer’s reason is a pretext for

discrimination or retaliation. Id.

The district court concluded that Comeaux failed to establish a prima

facie case because she could not establish that she was entitled to protection

under the FMLA. We agree. Even accepting Comeaux’s version of events as

true, Comeaux never provided the YMCA with medical evidence indicating that

she was medically unable to perform her employment duties as required under

FMLA. See 29 U.S.C. § 2613(a) (“An employer may require that a request for

leave . . . be supported by a certification issued by a health provider . . . ”); see

also Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 975 (5th Cir. 1998) (“In

determining whether an employee’s leave request qualifies for FMLA protection,

the employer must assess whether the request is based on a serious health

condition, and, for that purpose, may request supporting medical
No. 07-20881

1 The district court also aptly notes that Comeaux failed to offer any evidence to rebut

the YMCA’s non-discriminatory reason for terminating her employment: Comeaux’s refusalto

return to work even after exhausting the 12-week maximum leave requirement under the

FMLA.

5

documentation.” (citations and internal quotations omitted)). As noted above,

the medical certification completed by Dr. Turrentine indicated that Comeaux

was able to work and would require only routine prenatal care until childbirth.

Comeaux did not submit to the YMCA or offer into evidence in the district court

any medical documentation contradicting Dr. Turrentine’s certification. Because

Comeaux failed to submit the requisite certification establishing she suffered

from a “serious health condition,” she cannot prevail on her claim under the

FMLA.1

II. Title VII claim

Comeaux also contends that she established a genuine issue of material

fact on her Title VII claim. 

Title VII prohibits an employer from making an adverse employment

decision that is motivated in part by discrimination on the basis of sex, race,

color, religion, or national origin. 42 U.S.C. § 2000e-2(a)(1); Richardson v.

Monitronics Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005). Where there is no

direct evidence of discrimination, a plaintiff may prove a case of sex

discrimination with circumstantial evidence, using the burden shifting

framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). Under the McDonnell Douglas framework, the initial burden of

establishing a prima facie case of race discrimination lies with the plaintiff. To

do so, she must show that (1) she belongs to a protected class; (2) she was

qualified for the position she held; (3) she suffered an adverse employment

action; and (4) she was replaced by an individual outside the protected class.

DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007). If the plaintiff establishes
No. 07-20881

2 Notably, Comeaux was unsure whether this comment referred to her race or her

weight.

6

a prima facie case, then the burden shifts to the employer to show a legitimate,

non-discriminatory reason for its actions. Id. If the employer offers such a

reason, then the burden shifts back to the plaintiff to show that the justification

is merely pretext for discrimination. Id.

Here, Comeaux’s prima facie case fails on the second prong. This court has

previously held that attendance is an essential job function without which one

cannot be considered qualified to perform most jobs. See Hypes v. First

Commerce Corp., 134 F.3d 721, 727 (5th Cir. 1998). It is undisputed that

Comeaux did not report to work during the period covering March 7, 2005

through May 30, 2005. It is also undisputed that she refused to return to work

after May 30, 2005. Comeaux’s failure to report to work rendered her

unqualified for her position, and accordingly unable to meet her initial burden

of establishing a prima facie case of discrimination under Title VII.

Moreover, even assuming that Comeaux established a prima facie case,

she has nevertheless failed to rebut the YMCA’s legitimate non-discriminatory

reason for her termination. Again, the YMCA contends that Comeaux was

terminated because of her failure to report to work even after May 30, 2005.

Comeaux offered the following in support of race discrimination: (1) the branch

executive, Kevin Fiorillo, commented that her appearance was unsatisfactory

and that her face should not be the first face people see when they enter the

YMCA;2 and (2) Fiorillo stated that although there were no issues with her job

performance, he “didn’t feel like [the YMCA] was the place [Comeaux] should

be,” “he didn’t feel like [Comeaux] wanted her job,” and that “[I]f [Comeaux]

decided to resign, then I think that would be best for all of us.” However,

Comeaux produced no evidence showing that Fiorillo was responsible for or in

any way influenced the decision to terminate her. See Reeves v. Sanderson
No. 07-20881

7

Plumbing Products, Inc., 530 U.S. 133, 141 (2000) (plaintiff must show that

protected trait was a motivating factor for employer’s decision). Accordingly, she

has not established thatthe YMCA’s stated justification for her termination was

pretext for discrimination.

III. Comeaux’s Pro Se Status 

Comeaux argues that considering her pro se status,the district court erred

by not informing her that her pleadings were defective and allowing her to cure

them. It is well established that allegations in a pro se complaint are generally

held “to less stringent standards than formal pleadings drafted by lawyers.”

Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, Comeaux’s argument

rests on the inaccurate premise that her claim was dismissed simply because it

was inartfully pled, i.e., she failed to specifically explain and identify which

documents she was relying on to support her claims. To the contrary, the YMCA

was granted summary judgment because Comeaux failed to establish a prima

facie case under FMLA and Title VII. Further, as discussed above, under both

FMLA and Title VII, Comeaux has failed to rebut the YMCA’s legitimate, nondiscriminatory reason for her termination: her unexcused absences. Thus, under

the facts of this case, there is no circumstance in which Comeaux could prevail

on either of her claims. Accordingly, we find no error with regard to the district

court’s treatment of Comeaux based on her pro se status.

IV. Motion to Strike

The YMCA’s motion to strike portions of Comeaux’s reply brief, specifically

Exhibit I containing pages 27 and 39 of her deposition, is granted. Neither

Comeaux or the YMCA presented this evidence to the district court, and this

court may not consider it for the first time on appeal. See Theriot v. Parish of

Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not

consider new evidence furnished for the first time on appeal and may not
No. 07-20881

8

consider facts which were not before the district court at the time of the

challenged ruling.” (citation omitted)). 

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment in favor of the YMCA. The YMCA’s motion to strike is

GRANTED.