### 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 Pregna ncy 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 h er overtime. After the close of Fairchild’s

case in chief at trial, t he district court entered judgment in favor of All American on both claims

. Finding no error, w e affirm. United States Court of Appeals Fifth Circuit 

### FILED January 27, 2016

Lyle W. Cayce Clerk Case: 15-60190 Document: 00513358110 Page: 1 Date Filed: 01/27/2016No. 15

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2 I. BACKGROUND In December 2011, Ambrea Fairchild wa s hired by All American, a Mississippi

- based loan and check cashing company. Afte r a brief training period , Fairchild started work as a manager trainee at All American’s store in Hatti esburg, Mississippi

. She was paid hourly, and her responsibilities included cashing checks, issuing loan s , 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 dra wer was missing one hundred dollars. In July 2012, she received a citation for failing to follow instructions aft er s he kept the store open past All American ’s prescribed closing time . The next month she r eceived a written warning related to her “general i nefficiency. ” She received three more warnings i n the first half of September 2012 . One warning cited her failure to train m anager trainee s 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 a ccrual 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

m anager trainee position. Fairchild testified at trial that the demotion was justified because she need ed “to work on [her] weaknesses. ” Her manager became Daniel Fowler, an individual that Fairchild had previously trained

. While acting as her manager, Fowl er 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 Case: 15-60190 Document: 00513358110 Page: 2 Date Filed: 01/27/2016No. 15

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3 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, result ed in excessive customer complaints. Fowler and Fairchild also had a strained working relationship in part because Fairchild often c omplained about him to their supervisor s

. 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

. A s a result of these issues , Fowler informed his new supervisor, Mark Hendrix, that Fairchild was interfering with hi s ability to effectively manage the Hattiesburg store. In October 2012, Fairch ild learned she was pregnant. She told her then

supervisor, 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 America n paid her for the overtime that it authorized and that she

re corded in its timekeeping system. Fairchild, howev er, testified that she also worked additional overtime that she did not report through the specified timekeeping system a nd 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 t rial, t he parties agreed that the FLSA claim would be decided by the judge and the Title VII claim would be decided by a jury , although the y would present both claims at a single trial. The trial took place i n February Case: 15-60190 Document: 00513358110 Page: 3 Date Filed: 01/27/2016No. 15

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4 2015. After the close of Fairchild ’s case in chief, the district court grant ed 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. I n a bench trial,

a judgment e ntered 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 finding s

. 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 o f 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 i d. 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 t he 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. Case: 15-60190 Document: 00513358110 Page: 4 Date Filed: 01/27/2016No. 15

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5 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 Hender son , 47 F.3d 746, 748 (5th Cir. 19 95)). An employe e, 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 a n 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 p olicy required that all employees “ obt ain approval prior to working overtime , ” id. , and report those ho urs 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 Newto n 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. W e emphasized tha t 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 Case: 15-60190 Document: 00513358110 Page: 5 Date Filed: 01/27/2016No. 15

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6 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 wh ich 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. H owever, 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 cons t ructive 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 New ton

— ignored her employer’s p olicy and p rocedures: she neither sought authorizatio n to work such overtime nor r eported 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 proh ibited such overtime. To hold that she is entitle d 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 Healt h 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 Case: 15-60190 Document: 00513358110 Page: 6 Date Filed: 01/27/2016No. 15

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7 unavailing. Although All Americ an could have potentially discover ed 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 m ere “access” to this information is insufficient for im puting constructive knowledge

. I d

. Lastly, we note the absence of evidence suggesting that All American required her to work overtime and submit falsified time records that underreport ed her hours

. All American expressly instructed her not to work overtime other than that for wh ich 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 su ch 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 supervisor s 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 s he worked at her own discretion and that she deliberately failed to report in violation of All American’s policy

. With regard to t he 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 introduc e 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
i ntroduced , t he 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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8 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, t he district court gra nt s the defendant’s motion for judgment a s a matter of law under Federal Rule of Civil Procedure 50 after the c lose of the plaintiff’s case in chief, “[w] e rev iew 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 s ufficient 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 i nferences 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 tho se are jury functions.” Id. Title VII, in pertinent part, makes it unlawful for an employer “to
di scharge any individual . . . because o f such individual’s . . . sex.” 42 U.S.C. § 2000e

– 2(a)(1). As amended by t he 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, childbirt h, 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, a n employer is liable for disparate treatment, which occurs when the employee’s “protected trait actually motivated” the employer to take the adverse e mployment action

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9 Young v. United Parcel Serv., Inc. , 135 S. C t. 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 a lleged st atement s made by Wendy Lambert, a manager of All American ’s store in L aurel, Mississippi. Specifically, Fairchild at trial sought to testify that while Fairchil d 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

ev idence 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 d istrict court erred and that Lambert’s statement s 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). T his exceptio n 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). S uch statements do not Case: 15-60190 Document: 00513358110 Page: 9 Date Filed: 01/27/2016No. 15

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10 “conce rn a matter within the scope of” the employment relationship and instead are “made in [that employee’s] capacity as wiseacre only.” Id.
T he district court did not abuse its discretion in excluding the evidence regarding Lambert’s alleged statements

. Fairc hild failed to present any evidence that Lambert was involved in All American’s decision to te rminate her . The mere fact tha t Lambert was a managerial employee at a different All American location than where Fairchild worked does not establish that her
sta tements 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 dis crimination. Id . I f the plaintiff carries her burden, the employer has the opportunity to produce a “ legitimate, nondiscriminatory reason ” for the disparate treatment

. I d. at 1345 (quoting McDonne l l Douglas , 411 U.S. at 802)

.

“ If the employer articulates s uch 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 i s the temporal proximity between All American learning that she was pregnant and h er termination in late January 2013

. T he parties dispute the appropriate time frame by which to measure the te mporal proximity. All American claims that the proximity is two months

— the time lapse between Fairchild initially informing her supervisor and man ager of her pregnancy in late November 2012 Case: 15-60190 Document: 00513358110 Page: 10 Date Filed: 01/27/2016No. 15

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

— the time lapse between Mark Hendrix bec oming acting supervisor of the Hatti e sburg
store and Hendrix instructing Fairchild’s manager, Fowler, to fire her.
Even a ssuming without deciding that a reasonable trier of fact could find that Fairchild established her prima facie case , we hold that t he district court was correct to conclude that Fairchild failed to rebut All American’s legitimate, nondiscr iminatory reasons. A s the district court recognized, the record is “replete” with legitimate, non

- discriminatory r easons 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

. C onsequently, under McDonnell Douglas , the burden shift ed back to Fairchild , which, in the context of a Rule 50 motion , require d Fairchild to show that a reasonable trier of f act 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, Fa irchild “ 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. I n the context of other employment discrimination claims, we have held that while suspi cious 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 (5 th Cir. 2015) (disability discrimination claim under the Americans with Disabilities Act). In Burton , for instance, the plaintiff suffered Case: 15-60190 Document: 00513358110 Page: 11 Date Filed: 01/27/2016No. 15

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12 a work

- related injury that she claimed rendered her physically disable d

. 798 F.2d at 226. In assessing her claim under McDonnell Douglas , w e acknowledged that the temporal pr oximity between the plaintiff revealing her disability to her employer and her termination, by itself , was not enough to establish pretext. Id. at 240. O ur sister cir cuits , 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. A pp’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 regardi ng 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, w e decline to adopt a different analysis for pregnancy
- based sex discrimination claims under Title VII

. Although t he 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. B ecause the only circumstantial evidence in this case wa s temporal proximity, All American was entitled to judgment as a matter of law after it established legitimate, nond iscriminatory reason s 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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