IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60190

AMBREA FAIRCHILD, 

 Plaintiff–Appellant,

v.

ALL AMERICAN CHECK CASHING, INCORPORATED, a Mississippi 

Corporation, 

 Defendant–Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

Before PRADO, OWEN, and HAYNES, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Ambrea Fairchild sued her former employer, All American Check 

Cashing, Inc. (“All American”), alleging it violated Title VII of the Civil Rights 

Act of 1964 (“Title VII”), as amended by the Pregnancy Discrimination Act

(“PDA”), 42 U.S.C. § 2000e(k), by firing her because she was pregnant. She also 

alleged that All American violated the Fair Labor Standards Act (“FLSA”), 29 

U.S.C. § 207(a), by failing to pay her overtime. After the close of Fairchild’s

case in chief at trial, the district court entered judgment in favor of All 

American on both claims. Finding no error, we affirm.

United States Court of Appeals

Fifth Circuit

FILED

January 27, 2016

Lyle W. Cayce

Clerk

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I. BACKGROUND

In December 2011, Ambrea Fairchild was hired by All American, a 

Mississippi-based loan and check cashing company. After a brief training

period, Fairchild started work as a manager trainee at All American’s store in 

Hattiesburg, Mississippi. She was paid hourly, and her responsibilities 

included cashing checks, issuing loans, and making reminder and “past due” 

phone calls to assist with debt collection. 

All American promoted Fairchild in March 2012 to manager, a salaried 

position. Her duties largely stayed the same, although she also became 

responsible for training other employees. During her time as manager, All 

American issued her several written complaints regarding her performance. In

May 2012, she received a write up after a register drawer was missing one 

hundred dollars. In July 2012, she received a citation for failing to follow 

instructions after she kept the store open past All American’s prescribed

closing time. The next month she received a written warning related to her 

“general inefficiency.” She received three more warnings in the first half of 

September 2012. One warning cited her failure to train manager trainees and

another indicated she needed to “slow down and pay attention” when 

processing transactions. All American also issued a “final warning” for “general 

inefficiency,” which related to the accrual of “bad debt” at the store and her

failure to issue a sufficient number of loans. 

In late September 2012, All American demoted Fairchild back to the 

manager trainee position. Fairchild testified at trial that the demotion was 

justified because she needed “to work on [her] weaknesses.” Her manager 

became Daniel Fowler, an individual that Fairchild had previously trained.

While acting as her manager, Fowler issued Fairchild performance-related 

warnings, which included a December 2012 document informing Fairchild that 

All American had “zero tolerance” for “threatening phone calls” and “poor 

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attitudes.” Fowler also testified that Fairchild caused low morale at the 

Hattiesburg store. The issue with store morale led to problems with customer 

service that, in turn, resulted in excessive customer complaints. Fowler and 

Fairchild also had a strained working relationship in part because Fairchild 

often complained about him to their supervisors. As Fairchild admitted in her 

testimony, the two would frequently argue over “minor things,” and she would 

report Fowler’s actions to her then-supervisors. As a result of these issues, 

Fowler informed his new supervisor, Mark Hendrix, that Fairchild was 

interfering with his ability to effectively manage the Hattiesburg store.

In October 2012, Fairchild learned she was pregnant. She told her thensupervisor, Mandy Hearn, and her manager, Fowler, of her pregnancy in late

November 2012. On January 23, 2013, All American terminated Fairchild. Two 

days earlier, Mark Hendrix, who held another position in All American,

became acting supervisor of the Hattiesburg store.

All American’s overtime policy prohibited hourly employees from 

working overtime without prior approval from a manager or supervisor. 

Further, its policy required that all employees accurately report their hours in 

its designated timekeeping system. During Fairchild’s time as manager 

trainee, All American paid her for the overtime that it authorized and that she

recorded in its timekeeping system. Fairchild, however, testified that she also 

worked additional overtime that she did not report through the specified 

timekeeping system and for which she was not paid.

In May 2013, Fairchild sued All American in federal district court. Her 

complaint alleged that All American terminated her because of her pregnancy 

in violation of Title VII and failed to pay her overtime wages in violation of the 

FLSA. Before trial, the parties agreed that the FLSA claim would be decided 

by the judge and the Title VII claim would be decided by a jury, although they 

would present both claims at a single trial. The trial took place in February 

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2015. After the close of Fairchild’s case in chief, the district court granted All 

American’s motion for judgment in its favor on both claims. Fairchild timely 

appealed.

II. DISCUSSION

A. The FLSA Claim

The parties agreed to a bench trial for the FLSA claim. In a bench trial, 

a judgment entered after the plaintiff’s case in chief is appropriately decided 

under Federal Rule of Civil Procedure 52(c),1 which provides for a judgment on 

partial findings.2 Bursztajn v. United States, 367 F.3d 485, 488 (5th Cir. 2004).

When the district court enters a Rule 52(c) judgment, we review its factual

findings for clear error and its conclusions of law de novo. Id. at 488–89.

Under the FLSA, an employer must pay covered employees overtime 

compensation that is “not less than one and one-half times [that employee’s] 

regular rate” for all hours worked over forty in a workweek. 29 U.S.C. 

§ 207(a)(1). “An employer who is armed with [knowledge that an employee is 

 

1 In this case, All American incorrectly moved for a judgment as a matter of law under 

Federal Rule of Civil Procedure 50 as to both the FLSA claim, which was presented to the 

judge, and the Title VII claim, which was not. The district court proceeded to analyze both 

claims under Rule 50’s standard, which requires considering the evidence in the light most 

favorable to Fairchild. See Fed. R. Civ. P. 50(a); Bank of Saipan v. CNG Fin. Corp., 380 F.3d 

836, 840 (5th Cir. 2004). However, Rule 50’s standard does not apply to bench trials and, as 

such, Rule 52(c) was the proper vehicle for rendering judgment as to the FLSA claim. See 

Thanedar v. Time Warner, Inc., 352 F. App’x 891, 897 n.1 (5th Cir. 2009) (per curiam). We 

nonetheless conclude that a remand is unnecessary. The error did not prejudice Fairchild 

insofar as Rule 50’s standard favored her. See id. Rule 52(c), unlike Rule 50, does not require 

the district court “to draw any inferences in favor of the non-moving party” and permits the 

court to make a determination “in accordance with its own view of the evidence.” Ritchie v. 

United States, 451 F.3d 1019, 1023 (9th Cir. 2006); see Fed. R. Civ. P 52(c). In addition, “the 

purposes behind [Rule 52] have been effectuated” here: the district court’s ruling, which

canvassed the evidence adduced at trial, (1) “engender[ed] care on the part of the trial judge 

in ascertaining the facts” and (2) “[made] possible meaningful review in the appellate courts.” 

Gupta v. E. Tex. State Univ., 654 F.2d 411, 415 (5th Cir. 1981). 

2 Prior to 2007, a judgment under Rule 52(c) was referred to as a “judgment as a matter 

of law.” See Fed. R. Civ. P. 52(c) advisory committee’s note to 2007 amendment. However, in 

2007, Rule 52(c) was amended to “refer[] only to ‘judgment,’ to avoid any confusion with a 

Rule 50 judgment as a matter of law in a jury case.” Id. 

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working overtime] cannot stand idly by and allow an employee to perform 

overtime work without proper compensation, even if the employee does not 

make a claim for the overtime compensation.” Harvill v. Westward Commc’ns, 

L.L.C., 433 F.3d 428, 441 (5th Cir. 2005) (alteration in original) (quoting 

Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir. 1995)). An employee, 

however, cannot prevail on an FLSA overtime claim if that “employee fails to 

notify the employer or deliberately prevents the employer from acquiring 

knowledge of the overtime work.” Id. (quoting Newton, 47 F.3d at 748); see also 

Brumbelow v. Quality Mills, Inc., 462 F.2d 1324, 1327 (5th Cir. 1972). 

In Newton v. City of Henderson, the plaintiff, a police officer, brought an

FLSA claim for overtime against his employer, the City of Henderson (the 

“City”). 47 F.3d at 747. During the period at issue, the plaintiff was assigned 

to work for a task force with the U.S. Drug Enforcement Agency, although the 

City remained responsible for his salary. Id. The City’s personnel policy 

required that all employees “obtain approval prior to working overtime,” id.,

and report those hours on a specified payroll form, id. at 749. The City paid the 

plaintiff for all of the hours he reported on the payroll forms; it did not pay him 

for the unauthorized overtime that he failed to properly report. Id. at 748. 

The plaintiff in Newton argued that despite his failure to follow protocol, 

he was owed compensation for unpaid overtime because “he reported his 

activities to [the City] on a daily basis,” although not the specific number of 

hours worked, and that, as a result, the City had constructive knowledge of his 

overtime hours. Id. After the trial court granted judgment for the plaintiff, we 

reversed and rendered judgment in favor of the City. Id. at 746–47. We 

emphasized that his employer had expressly ordered the plaintiff not to work 

overtime; the plaintiff had ignored the procedures for reporting such overtime; 

and no other evidence established that his supervisors should have known he 

was required to work overtime. Id. at 749–50. We also highlighted that this 

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was not a case in which the defendant “encouraged or forced [the plaintiff] to 

submit incorrect time sheets.” Id. at 750.

Fairchild, on appeal, alleges All American failed to pay her overtime for 

the two periods in which she worked as a manager trainee—December 2011 

through March 2012 and September 2012 through January 2013. During this 

time, Fairchild was paid for the overtime hours she reported through All 

American’s timekeeping system. However, she now seeks payment for the 

alleged overtime hours that she worked but did not report to All American. The

district court denied overtime compensation for both periods. We hold that it 

did not clearly err in finding that Fairchild did not establish that All American 

had constructive knowledge that she was required to work overtime and had 

not been paid for it.

With regard to the first period as manager trainee, Fairchild—like the 

plaintiff in Newton—ignored her employer’s policy and procedures: she neither 

sought authorization to work such overtime nor reported the alleged hours 

through All American’s timekeeping system. Id. at 749. Indeed, Fairchild 

testified that she intentionally failed to report her unauthorized overtime 

specifically because All American prohibited such overtime. To hold that she is 

entitled to deliberately evade All American’s policy would improperly deny All 

American’s “right to require an employee to adhere to its procedures for 

claiming overtime.” Id.; see also White v. Baptist Mem’l Health Care Corp., 699 

F.3d 869, 876 (6th Cir. 2012) (“When the employee fails to follow reasonable 

time reporting procedures she prevents the employer from knowing its 

obligation to compensate the employee and thwarts the employer’s ability to 

comply with the FLSA.”).

Fairchild counters that her computer usage reports, which allegedly 

show she was working after “clocking out,” proves that All American had 

constructive knowledge that she was working overtime. We find this argument 

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unavailing. Although All American could have potentially discovered that she 

was working overtime based on the usage reports, “the question here is 

whether [the employer] should have known.” Newton, 47 F.3d at 749. The 

district court did not clearly err in holding that mere “access” to this

information is insufficient for imputing constructive knowledge. Id.

Lastly, we note the absence of evidence suggesting that All American

required her to work overtime and submit falsified time records that 

underreported her hours. All American expressly instructed her not to work 

overtime other than that for which she was approved. Fairchild’s subjective 

belief that, as she testified, All American “permitted [her] to get the job done” 

does not establish that it implicitly approved or required such overtime. See id. 

at 748–49 (finding that an employee was not approved to work overtime despite 

being instructed to “go out and do the job” when the supervisors had expressly 

told the employee not to work unauthorized overtime hours). Accordingly, as 

the district court correctly concluded, Fairchild cannot prevail on her FLSA 

claim for overtime compensation for hours that she worked at her own 

discretion and that she deliberately failed to report in violation of All 

American’s policy. 

With regard to the second period as manager trainee, Fairchild’s only 

evidence was her uncorroborated testimony that she worked approximately ten

hours of overtime a week and was not paid overtime for this period. Unlike 

with the first period, she did not seek to introduce any computer usage reports. 

The district court found that Fairchild “had failed to make a case” that she was 

improperly denied overtime compensation, noting that any such overtime 

would have been in violation of company policy. In light of the evidence

introduced, the district court did not clearly err in holding All American did 

not have notice, whether actual or constructive, that she was working overtime

during this period. 

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B. The Title VII Claim

The parties agreed to a jury trial for Fairchild’s pregnancy-based sex 

discrimination claim under Title VII. Where, as here, the district court grants

the defendant’s motion for judgment as a matter of law under Federal Rule of 

Civil Procedure 50 after the close of the plaintiff’s case in chief, “[w]e review 

the district court’s ruling de novo, applying the same Rule 50 standard as did 

the district court.” Brennan’s Inc. v. Dickie Brennan & Co. Inc., 376 F.3d 356, 

362 (5th Cir. 2004). Rule 50 entitles the movant to judgment as a matter of law 

when “a party has been fully heard on an issue . . . and the court finds that a 

reasonable jury would not have a legally sufficient evidentiary basis to find for 

that party on that issue.” Fed. R. Civ. P. 50(a)(1). Evidence is legally 

insufficient “when the facts and inferences point so strongly and 

overwhelmingly in the movant’s favor that reasonable jurors could not reach a 

contrary verdict.” Brennan’s Inc., 376 F.3d at 362. Therefore, “[i]n considering 

a Rule 50 motion, the court must review all of the evidence in the record, 

drawing all reasonable inferences in favor of the nonmoving party; the court 

may not make credibility determinations or weigh the evidence, as those are 

jury functions.” Id.

Title VII, in pertinent part, makes it unlawful for an employer “to 

discharge any individual . . . because of such individual’s . . . sex.” 42 U.S.C. 

§ 2000e–2(a)(1). As amended by the first clause of the PDA, the terms “because 

of sex” “includ[e], but [are] not limited to, ‘because of or on the basis of 

pregnancy, childbirth, or related medical conditions.’” Laxton v. Gap Inc., 333 

F.3d 572, 577 (5th Cir. 2003) (quoting 42 U.S.C. § 2000e(k)). “A claim brought 

under the PDA is analyzed like any other Title VII discrimination claim.” Id. 

at 578. Thus, for a pregnancy-based sex discrimination claim, an employer is 

liable for disparate treatment, which occurs when the employee’s “protected 

trait actually motivated” the employer to take the adverse employment action. 

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Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1345 (2015) (quoting 

Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003)). A “plaintiff can prove 

disparate treatment either (1) by direct evidence that a workplace policy, 

practice, or decision relies expressly on a protected characteristic, or (2) by 

using the burden-shifting framework set forth in McDonnell Douglas [Corp. v. 

Green, 411 U.S. 792 (1973)].” Id.

“Direct evidence is evidence which, if believed, proves [disparate 

treatment] without inference or presumption.” Jones v. Robinson Prop. Grp., 

L.P., 427 F.3d 987, 992 (5th Cir. 2005). Fairchild’s only direct evidence 

concerns alleged statements made by Wendy Lambert, a manager of All 

American’s store in Laurel, Mississippi. Specifically, Fairchild at trial sought 

to testify that while Fairchild and Lambert were having lunch after Fairchild’s 

termination, Lambert said that “[Fairchild’s] pregnancy was related to [her] 

termination.” All American objected to this testimony, arguing that such 

evidence was inadmissible hearsay. The district court sustained the objection, 

explaining the out-of-court statements, which were made during a social 

occasion, were not subject to the party-opponent exception provided for in 

Federal Rule of Evidence 801(d)(2).

On appeal, Fairchild contends that the district court erred and that

Lambert’s statements are admissible under Rule 801(d)(2)(D). We “review the 

trial court’s evidentiary rulings under an abuse of discretion standard.” Curtis 

v. M&S Petroleum, Inc., 174 F.3d 661, 667 (5th Cir. 1999). Rule 801(d)(2)(D)

provides that a statement is not hearsay when it is “offered against an opposing 

party” and “was made by the party’s agent or employee on a matter within the 

scope of that relationship and while it existed.” Fed. R. Evid. 801(d)(2)(D). This 

exception does not apply to an employee’s statement concerning a termination 

decision when that employee “had nothing to do with” that decision. Staheli v. 

Univ. of Miss., 854 F.2d 121, 127 (5th Cir. 1988). Such statements do not 

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“concern a matter within the scope of” the employment relationship and 

instead are “made in [that employee’s] capacity as wiseacre only.” Id. 

The district court did not abuse its discretion in excluding the evidence

regarding Lambert’s alleged statements. Fairchild failed to present any 

evidence that Lambert was involved in All American’s decision to terminate 

her. The mere fact that Lambert was a managerial employee at a different All 

American location than where Fairchild worked does not establish that her 

statements were within the scope of Lambert’s employment relationship with 

All American. See id. (citing Hill v. Speigel, Inc., 708 F.2d 233, 237 (6th Cir.

1983)). 

In the absence of direct evidence, Fairchild may still prove disparate 

treatment if her circumstantial evidence satisfies McDonnell Douglas’s 

burden-shifting framework. Young, 135 S. Ct. at 1353. Under this framework, 

the plaintiff initially has the burden to prove a prima facie case of 

discrimination. Id. If the plaintiff carries her burden, the employer has the 

opportunity to produce a “legitimate, nondiscriminatory reason” for the 

disparate treatment. Id. at 1345 (quoting McDonnell Douglas, 411 U.S. at 802).

“If the employer articulates such a reason, the plaintiff then has ‘an 

opportunity to prove by a preponderance of the evidence that the legitimate 

reasons offered by the defendant [i.e., the employer] were not its true reasons, 

but were a pretext for discrimination.’” Id. (alteration in original) (quoting 

Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

As the district court found, Fairchild’s only circumstantial evidence is 

the temporal proximity between All American learning that she was pregnant

and her termination in late January 2013. The parties dispute the appropriate 

time frame by which to measure the temporal proximity. All American claims 

that the proximity is two months—the time lapse between Fairchild initially

informing her supervisor and manager of her pregnancy in late November 2012 

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and her firing. Fairchild contends that the proximity is two days—the time 

lapse between Mark Hendrix becoming acting supervisor of the Hattiesburg 

store and Hendrix instructing Fairchild’s manager, Fowler, to fire her.

Even assuming without deciding that a reasonable trier of fact could find

that Fairchild established her prima facie case, we hold that the district court 

was correct to conclude that Fairchild failed to rebut All American’s legitimate, 

nondiscriminatory reasons. As the district court recognized, the record is 

“replete” with legitimate, non-discriminatory reasons for Fairchild’s 

termination: her contentious relationship with her manager; the problems she 

caused regarding store morale and customer service; and her repeated 

performance-related problems that resulted in warnings, including a citation 

issued after she informed All American of her pregnancy. Consequently, under 

McDonnell Douglas, the burden shifted back to Fairchild, which, in the context 

of a Rule 50 motion, required Fairchild to show that a reasonable trier of fact 

could conclude that All American’s offered reasons were pretextual. Wallace v. 

Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001). In order to meet this 

burden, Fairchild “must put forward evidence rebutting each of the 

nondiscriminatory reasons the employer articulates.” Id. 

Yet, as noted, Fairchild’s only evidence is temporal proximity. This 

Circuit has not yet addressed whether the temporal proximity between an 

employer learning of the plaintiff’s pregnancy and the challenged employment 

action can be sufficient to prove pretext. In the context of other employment 

discrimination claims, we have held that while suspicious timing may be

evidence of pretext under McDonnell Douglas, such “[t]iming standing alone is 

not sufficient absent other evidence.” Boyd v. State Farm Ins. Companies, 158 

F.3d 326, 330 (5th Cir. 1998); accord Burton v. Freescale Semiconductor, Inc., 

798 F.3d 222, 240 (5th Cir. 2015) (disability discrimination claim under the 

Americans with Disabilities Act). In Burton, for instance, the plaintiff suffered 

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a work-related injury that she claimed rendered her physically disabled. 798 

F.2d at 226. In assessing her claim under McDonnell Douglas, we 

acknowledged that the temporal proximity between the plaintiff revealing her 

disability to her employer and her termination, by itself, was not enough to 

establish pretext. Id. at 240. Our sister circuits, relatedly, have recognized that

the temporal proximity between the plaintiff disclosing her pregnancy and her 

termination “cannot alone prove pretext.” Asmo v. Keane, Inc., 471 F.3d 588, 

598 (6th Cir. 2006); see also Govori v. Goat Fifty, L.L.C., 519 F. App’x 732, 734 

(2d Cir. 2013); Borwick v. T-Mobile W. Corp., 535 F. App’x 650, 652 (10th Cir. 

2013). Moreover, we find instructive this Court’s reasoning regarding temporal 

proximity as applied to retaliation claims: to allow the plaintiff to prove pretext 

based solely on temporal proximity “would unnecessarily tie the hands of 

employers” after the protected conduct or, in this case, the protected status is 

disclosed. Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 

2007). 

Therefore, with respect to evidence of timing, we decline to adopt a 

different analysis for pregnancy-based sex discrimination claims under Title 

VII. Although the temporal proximity between the employer learning of the 

plaintiff’s pregnancy and her termination may support a plaintiff’s claim of 

pretext, such evidence—without more—is insufficient. Because the only 

circumstantial evidence in this case was temporal proximity, All American was 

entitled to judgment as a matter of law after it established legitimate, 

nondiscriminatory reasons for Fairchild’s termination.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s judgment in 

favor of All American on the FLSA claim and the Title VII claim.

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