REVISED October 21, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20239

Summary Calendar

ANNIESA L. PARIS,

Plaintiff–Appellant,

versus

SANDERSON FARMS, INCORPORATED; 

SANDERSON FARMS, INCORPORATED (FOODS DIVISION), 

Individually and Doing Business as Sanderson Farms, Incorporated; 

SANDERSON FARMS, INCORPORATED (PRODUCTION DIVISION);

SANDERSON FARMS, INCORPORATED (PROCESSING DIVISION),

Defendants–Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CV-3119

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

United States Court of Appeals

Fifth Circuit

F I L E D

October 18, 2013

Lyle W. Cayce

Clerk

* 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.

 Case: 13-20239 Document: 00512415104 Page: 1 Date Filed: 10/21/2013
No. 13-20239

Anniesa Paris, a former employee of Sanderson Farms, Inc. (“Sanderson

Farms”), appeals a summary judgment dismissing her discrimination and retaliation claims. We affirm.

I.

In 2008, Paris began working at Sanderson Farms’ poultry processing

plant as a personnel clerk and was shortly thereafter promoted to the position

of employee records clerk. Sanderson Farms has its own Family and Medical

Leave Act Policy for Salaried Employees (“the Policy”) for handling employee

leave under the Family and Medical Leave Act (“FMLA”). The Policy permits

employees to take up to thirteen weeks’ leave annually, rather than the twelve

weeks provided by the statute. The Policy imposes certain protocols employees

must follow before1

and during2

their leave. The Policy also specifies that “an

employee[] who fail[s] to return after exhausting their thirteen weeks of FMLA

leave will be subject to discharge” unless Sanderson Farms grants an extension.3

1The Policy requires employees to “provide [Sanderson Farms] with sufficient information to enable it to determine whether the leave requested qualifies as FMLA leave.” Sanderson Farms, where appropriate, “will require certification issued by a health care provider of

an employee’s need for leave because of the employee’s own serious health condition . . . .” An

employee must submit this certification within fifteen days after receiving the forms from Sanderson Farms “unless [such submission] is impracticable . . . and the employee has made diligent, good faith efforts to comply with this deadline.”

2The Policy requires employees on leave to “call the Field Employee Relations Manager

periodically to report on their status and intent to return to work.”

3 The Policy allows “employees who, because of disability, remain temporarily unable

to perform their jobs after exhausting FMLA leave may request extensions of leave beyond the

thirteen-week limit.” The employee must request the extension reasonably in advance of the

expiration of the existing leave, and any such extension “must be approved by [Sanderson

Farms’] Executive Committee.”

2

 Case: 13-20239 Document: 00512415104 Page: 2 Date Filed: 10/21/2013
No. 13-20239

On October 19, 2009, Paris took FMLA leave to undergo and recover from

a surgical procedure; she returned to work on November 16. Paris claims that,

during her leave, her supervisor, Richard Warner, harassed her regarding her

leave.4

In December, Sanderson Farms terminated Warner for poor job performance, including for issuing Paris’s improper write-ups. Also in December, Sanderson Farms received a demand letter from a former employee, Revena Carroll,

alleging claims of discriminatory and retaliatory discharge and claiming that

Paris had witnessed an incident related to Carroll’s claims against Sanderson

Farms.5

Paris began a second FMLA leave on December 17 after receiving treatment at the emergency room. Her treating physician, Gerald Salinas, submitted

a completed FMLA certification on December 30 saying that Paris would be out

of work for “two to three weeks” to give Salinas a chance to determine the cause

of her symptoms.

On January 8, 2010, Orman called Paris to see whether she planned to

return to work or would need additional leave. Because Paris did not know

when she would return, Ormon told her that she would need to submit an

updated FMLA certification to cover any additional leave. On January 22, Paris

submitted an FMLA certification signed by Salinas, indicating a return date of

4 Paris claims Warner told her she was not following the Policy, which required her to

submit a timely doctor’s note to excuse an absence. When Paris returned to work, Warner

issued her two write-ups for excessive lateness and the unauthorized release of information

from personnel files. Paris complained to the Division Manager, Todd Ormon, requesting

those “bogus” write-ups be removed from her files. Ormon determined that the write-ups were

unjustified and removed them.

5 Carroll’s letter alleges the following altercation: “When Anniesa Paris handed [documentation indicating Carroll required extending her FMLA leave] to Mr. Ormon, he looked at

it, then threw it back at her angrily, and said, ‘I don’t need this, I’ll take care of it myself.’”

3

 Case: 13-20239 Document: 00512415104 Page: 3 Date Filed: 10/21/2013
No. 13-20239

January 25.

Paris did not return to work on January 25 but instead submitted a note

from Salinas indicating that Paris needed to remain out of work “until she’s

released by the Gastroenterologist.” That same day, Veronica Campbell, who

was Warner’s replacement, sent a certified letter to Paris that indicated (1) Paris

needed to send a new certification to cover any leave beyond January 25, and

(2) Salinas’s note was insufficient documentation. Two days later, Salinas submitted an updated FMLA certification stating that Paris could not return to

work until after she saw a gastroenterologist on March 18.

Paris’s FMLA leave expired in February.6

 On February 22, Salinas submitted a note stating that Paris “is still waiting to see GI [on] 3/18/10 and is still

off work.” On February 26, Ormon requested Paris’s leave be extended to

March 18. Sanderson Farm’s Executive Committee approved the extension.

Paris saw her gastroenterologist, Anupama Duddempudi, on March 18,

then called Campbell to say she would be unable to return to work at that time.

On March 23, Salinas sent Sanderson Farms a note stating Paris was “excused

from work until Gastroenterologist, Dr. Duddempudi, gives any indication that

she can return.” In response, on March 25, Campbell sent Paris a certified letter

indicating (1) her extension had expired on March 18, and (2) her employment

would be terminated unless she returned to work or request another extension

by April 9.7

6 Based on Sanderson Farms’ calculations, which Paris does not dispute, Paris’s leave

under the Policy expired on or about February 18, and Paris’s twelve-week statutory leave

expired on or about February 11.

7 The cover letter indicates April 10 as the due date, whereas the attached certification

(continued...)

4

 Case: 13-20239 Document: 00512415104 Page: 4 Date Filed: 10/21/2013
No. 13-20239

In the afternoon of Friday April 9, Salinas faxed Campbell a medical certification form indicating that Paris’s expected date to return to work was “today,

4/09/10.”8 Shortly after receiving that certification, Campbell forwarded it to

Jennifer Buster, a Sanderson Farms Human Resources Manager.

Paris did not return to work on April 9. Having not heard from her, Buster decided that before taking any further action, Sanderson Farms should wait

to see whether she came to work on Monday April 12. Paris claims she left messages for Campbell on April 2 to inform Campbell that she had a procedure

scheduled for April 5, and on April 8 to inform Campbell that her paperwork

would be delayed because her doctor was out of the country. Sanderson Farms

disputes that Paris left those messages.9

Paris did not come to work on April 12. The next day, Buster spoke with

Ormon and Campbell concerningParis’s employment status; after that conversation, Buster10

terminated Paris’s employment. The parties disagree on the effec

7

(...continued)

required Paris to return the certification by April 9. In its brief, Sanderson Farms contends

“April 9, 2010 was the correct date, because April 10 was a Saturday.”

8 Paris points to several “odd” features of the fax: (1) In spite of the January 25 letter

indicating Paris would remain out of work “until she’s released by the Gastroenterologist,” the

certification came from Salinas, not Duddempudi; (2) the certification came on April 9 instead

of April 15, when Duddempudi was supposed to return to her office; (3) the document was

faxed at 3:15 p.m. on a Friday, “indicating Paris was released to work then, the same day she

was supposed to return to work;” (4) the document was not personally presented by Paris; and

(5) Campbell admitted the release had some odd features.

9 Sanderson Farms points to undisputed testimony indicating that the only means to

send Campbell a message would by leaving a message with the receptionist. That is, phones

in the processing plant do not have voice mailboxes. Per her deposition testimony, Campbell

“does not remember” whether she received a call from Paris before April 5 or on April 8.

10 At his deposition, Ormon testified that although he was involved in the decision to

(continued...)

5

 Case: 13-20239 Document: 00512415104 Page: 5 Date Filed: 10/21/2013
No. 13-20239

tive date of termination: Sanderson Farms claims it was April 9,

11

but Paris

claims it was April 1.12

Paris sued, alleging that Sanderson Farms interfered with her rights

under the FMLA and discriminated and retaliated against her by terminating

her in violation of the FMLA, the Americans with Disabilities Act (“ADA”), and

the Texas Commission on Human Rights Act (“TCHRA”). The district court

granted summary judgment on all claims.

II.

We review a summary judgment de novo, “using the same stan10

(...continued)

terminate Paris,the ultimate decision was made by Buster. Paris’s counsel asked Buster during her deposition whose decision it was to terminate: “yours or [Orman’s] or somebody’s else?”

Buster responded that the “policy dictated” termination; Campbell testified that she was

involved only in handling the paperwork regarding Paris’s termination. In its interrogatory

responses, Sanderson Farms stated that Buster and Campbell were both involved in the

decision.

11 Sanderson Farms relies on three pieces of evidence for this date: (1) A Sanderson

Farms “Salaried Payroll Authorization” form signed by Ormon and Campbell on April 13 indicates that the effective date of termination was April 9; (2) Paris was told to file her second

extension by April 9; and (3) Salinas’s fax cleared Paris for work on April 9.

12 Paris also relies on three pieces of evidence in support of this date: (1) During a telephone conversation between her and Campbell on April 15, Campbell told her that she had

been terminated on April 1; (2) the “Salaried Payroll Authorization” form originally indicated

April 1 as the termination date, but Sanderson Farms had altered the form to indicate an

effective date of April 9 (According to Paris, the form itself makes this alteration readily

apparent.); and (3) a Consolidated Omnibus Reconciliation Act (“COBRA”) form provided to

Paris after her termination lists “End of employment” as occurring on April 1. Sanderson

Farms disputes these assertions: (1) Campbell denies having a conversation with Paris on

April 15; (2) there is no evidence that the date on the form has been altered; and (3) per Campbell’s testimony, the date on the COBRA form merely reflected that Paris’s paycheck would

be stopped as of March 31 “so she wouldn’t be paid as of April the 1st. But April the 9th was

the actual effective date” of termination.

6

 Case: 13-20239 Document: 00512415104 Page: 6 Date Filed: 10/21/2013
No. 13-20239

dard as that employed by the district court under Rule 56.” Kerstetter v. Pac. Scientific Co., 210 F.3d 431, 435 (5th Cir. 2000). Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” FED. R. CIV. P. 56(a).

Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012), cert. denied, 2013 U.S.

LEXIS 5708 (U.S. Oct. 7, 2013) (No. 12-1437). We consider “all facts and inferences in the light most favorable to the nonmoving party when reviewing grants

of motions for summary judgment.” Murray v. Earle, 405 F.3d 278, 284 (5th Cir.

2005) (citation omitted).

A.

FMLA prohibits employers from “discharg[ing] or in any other manner discriminat[ing] against any individual” who takes FMLA leave or engages in other

protected activity under the Act. 29 U.S.C. § 2615(a)(2) (2012); Bocalbos v. Nat’l

W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998). Where, as here, the employee

has not offered direct evidence of discrimination, this court applies the familiar

three-step burden-shifting analysis established in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 800-03 (1973).13

First, the employee must establish a prima facie case of discrimination.

Second, if he does that, the burden shifts to the employer to provide a legitimate,

non-discriminatory reason for the adverse action. Finally, if the employer meets

its burden, the employee must show that the reason provided was a pretext for

discrimination.

13 See Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999), partially abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146–49

(2000).

7

 Case: 13-20239 Document: 00512415104 Page: 7 Date Filed: 10/21/2013
No. 13-20239

Sanderson Farm assumed Paris could establish a prima facie case, so we,

like the district court, assume that. We next must inquire whether Sanderson

Farms produced evidence demonstrating a legitimate, non-discriminatory reason

for terminating Paris. Sanderson Farms put forward evidence demonstrating

it terminated Paris’s employment when she failed (1) to return to work following

her extended FMLA leave and (2) to submit any certification seeking another

extension. Because failure to return following a FMLA leave constitutes a legitimate, non-discriminatory basis for termination, Sanderson Farms has met its

burden under McDonnell’s second step. See Hart v. Comcast of Hous., LLC, 347

F. App’x 978, 980 (5th Cir. 2009).

Thus, moving to McDonnell’s third step, summary judgment must be

affirmed unless Paris can identify evidence that creates a genuine issue of fact

that Sanderson Farms’ justification was pretextual. That is, Paris needs to have

put forward sufficient evidence to show Sanderson Farms terminated her

employment because she took FMLA leave. We agree with the district court:

None of the “plethora of arguments” Paris argued before the district court, and

repeats before this court, creates a genuine issue of material fact on pretext.

First, Paris attempts to show pretext by demonstrating she requested an

extension to her FMLA leave before April 9, 2010. Paris, however, points only

to her testimony regarding messages she left on April 2 and 8. Even if the record

demonstrates Paris left these messages with the receptionist, Paris would not

have complied with Sanderson Farms’ policy. Paris does not dispute any of the

following four findings: (1) She received Campbell’s March 25 letter; (2) that

letter informed her that she needed either to return to work or to submit completed certification forms by April 10; (3) the letter included blank certification

8

 Case: 13-20239 Document: 00512415104 Page: 8 Date Filed: 10/21/2013
No. 13-20239

forms; and (4) she did not submit completed certification forms to Sanderson

Farms, exactly the reason Sanderson Farms justified its termination on. The

evidence Paris points to does not demonstrate a genuine issue on pretext.

Second, Paris claims Sanderson Farms’ failure to contact her between

April 9 and April 13 creates a genuine issue on pretext. Paris argues that

because she had complied with company policy thus far, Sanderson Farms’ failure to clarify the “odd” features of Salinas’s faxed certification suggests pretext.

Paris also theorizes that Sanderson Farms violated its own company policy by

not “ensur[ing] there was no miscommunication,” again suggesting “Ormon was

waiting for a pretext to terminate her” for taking FMLA leave.

Neither of these arguments creates a genuine issue. Paris, contrary to her

assertion, did not comply with “every request of Sanderson Farms.” As discussed above, Paris does not dispute (1) she received Campbell’s March 25 letter;

and (2) that letter described the exact steps she needed to take to remain

employed. The record therefore indicates Sanderson Farms clearly informed

Paris of what she needed to do to. Even if Salinas’s certification was “odd,” the

Policy still required Paris either to return to work or to submit completed certification by April 10. Paris failed to do so.

In terms of her second argument, Paris has not put forward any evidence

showing that the Policy required Sanderson Farms to clarify an employee’s failure to comply. Paris points only to Campbell’s deposition testimony, in which

Campbell was asked about what she believed a company should do in certain

situations.14 That testimony does not state what Sanderson Farms required its

14 The relevant deposition testimony is as follows:

(continued...)

9

 Case: 13-20239 Document: 00512415104 Page: 9 Date Filed: 10/21/2013
No. 13-20239

employees to do in this situation. Even if this testimony somehow revealed Sanderson Farms’ policy, it does not provide evidence that it violated its policies. At

best, the testimony shows Sanderson Farms has a general duty to communicate

with its employees while they were on medical leave, which it certainly did here.

Furthermore, even if this testimony shows Sanderson Farms violated its

internal policiesSSwhich it does notSSsuch evidence does not preclude summary

judgment.15It is true that such violation of internal policies, depending on, inter

alia, the nature of the internal policy and the extent of the deviation in the particular case, could give rise to evidence of pretext in light of all the other relevant

facts. See, e.g., Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005).

Here, however, the undisputed evidence shows Sanderson Farms repeatedly

14

(...continued)

[Plaintiff’s Counsel]: Do you believe that a company should take care to ensure that it

has good reason to terminate an employee? 

[Campbell]: Yes.

[Plaintiff’s Counsel]: Do you believe that a company should take care to ensure that it

has a good reason to terminate an employee? 

[Campbell]: Yes.

[Plaintiff’s Counsel]: Do you believe that a company should take care to ensure that it

has its facts straight before terminating an employee? 

[Campbell]: Yes.

[Plaintiff’s Counsel]: Do you believe that a company should take care to ensure it’s not

terminating an employee based on wrong information? 

[Campbell]: Yes.

[Plaintiff’s Counsel]: Do you believe that a company should take care to ensure it is not

terminating an employee based on false information? 

[Campbell]: Yes.

. . .

[Plaintiff’s Counsel]: And is it also important for a company to communicate with an

employee when the employee is out on medical leave?

[Campbell]: Yes.

15 See Grubb v. Sw. Airlines, 296 F. App’x 383, 390 (5th Cir 2008) (per curiam) (“Failure

to follow internal procedures is generally not enough to create a genuine issue of fact as to discriminatory motives.”).

10

 Case: 13-20239 Document: 00512415104 Page: 10 Date Filed: 10/21/2013
No. 13-20239

communicated with Paris and told her the specific obligations to remain

employed. Even if the record clearly showed Sanderson Farms’ policy required

it to have communicated with Paris between April 9 and the time of termination,

and Sanderson Farms failed to do so, that evidence does not give rise to a genuine issue on pretext.

Third, Paris attempts to show pretext by arguing she has put forward

sufficient evidence showing her effective termination date was April 1. She

relies on three pieces of evidence that Paris believes create a dispute on the termination date: (1) According to Paris, the Sanderson Farms Salaried Payroll

Authorization form “has been altered to change the Effective Date and Term

Date from ‘4/1/10’ to ‘4/9/10’ ”; (2) the COBRA letter states Paris’s medical benefits ended on April 1; and (3) Campbell’s allegedly telling Paris that her employment had been terminated effective April 1. According to Paris, “[a] termination

date of April 1, 2010 is incompatible with Sanderson Farms’ proffered reason for

termination—Paris’s alleged failure to return to work on April 12, 2010—and is

evidence of a factual issue that should have precluded summary judgment.”

As the district court decided, none of these assertions gives rise to a material factual dispute on pretext. With respect to the allegedly altered date, without pointing to any expert testimony or other objective criteria, Paris merely

asserts the form makes it clear that the date has been altered. She does not

explain why or how the document was altered, and she ignores Buster’s and

Ormon’s testimony: Both stated under oath that they did not, nor did they

instruct anyone else to, alter the document.

As to the second contention, the undisputed record explains the discrepancy between the effective termination date (April 9) and the date listed on the

11

 Case: 13-20239 Document: 00512415104 Page: 11 Date Filed: 10/21/2013
No. 13-20239

COBRA letter (April 1). Under Sanderson Farms’ salary-continuation policy,

Paris’s pay continued only through March 18 (when her certification from Salinas expired). The date on the COBRA form merely reflected that Paris’s paycheck would be stopped as of March 31, because no further pay was due. 

Finally, as to her third contention, like the altered date, without any substantiation, Paris merely asserts Campbell called her and told her that April 1

was her effective termination. That “evidence” amounts to nothing more than

“conclusory statements, speculation, and unsubstantiated assertions” and, therefore, cannot defeat summary judgment. See RSR Corp. v. Int’l Ins. Co., 612 F.3d

851 (5th Cir. 2010).

Fourth, Paris contends Sanderson Farms “changed its story” about who

made the termination decision. We agree with the district court that “a proper

reading of the record does not demonstrate any meaningful inconsistency” about

who at Sanderson Farms decided to terminate Paris’s employment.16 Likewise,

the district court properly concluded “the salient question is not who terminated

the plaintiff but why she was terminated.” As discussed above, the undisputed

record indicates Sanderson Farms terminated Paris because she failed either to

return to work or to submit an updated certification form. This contention does

not create a genuine issue on pretext.

Lastly, Paris contends “Ormon has anegative attitude toward FMLA leave

and Sanderson Farms has a pattern and practice of terminating employees for

taking FMLA leave.” To substantiate her claim that pretext can be shown by

Ormon’s negative attitude, instead of offering her own “conclusory statements,

16 Each of Sanderson Farms’ witnesses, as well as its interrogatory response, identified

Buster as the decision-maker, with some degree of input from Campbell and Ormon.

12

 Case: 13-20239 Document: 00512415104 Page: 12 Date Filed: 10/21/2013
No. 13-20239

speculation, and unsubstantiated assertions,” Paris now offers statements by

Carroll. The district court in Carroll’s case in fact noted that much of her evidence contained “unsupported conclusory assertions [and] speculation.” Carroll

v. Sanderson Farms, Inc., No. H-10-3108, 2012 WL 3866886, at *14-15 (S.D. Tex.

Sept. 5, 2012).

In terms of her second contention, Paris has likewise not put forward sufficient evidence of a pattern and practice of retaliation. First, she does not dispute

that Sanderson Farms’ FMLA leave policy provides more generous benefits than

required by state and federal law—a fact inconsistent with a pattern and practice of FMLA discrimination.

The facts of this case, furthermore, do not suggest a pattern or practice of

terminating employees for taking FMLA leave. As the district court noted, Paris

was granted discretionary leave and continued receiving pay long after her statutory and company leave had expired. We again agree with the district court

that Paris has not offered any competent evidence giving rise to a genuine issue

on pretext.

B.

FMLA prohibits employers from “discharg[ing] or in any other manner discriminat[ing] against any individual because such individual . . . has testified,

or is about to testify, in any inquiry or proceeding relating to any right provided

under this subchapter.” 29 U.S.C. § 2615(b)(3) (2012) (emphasis added). Paris

asserted she had been terminated in retaliation for having been identified as a

witness in Carroll’s lawsuit.17 Finding that Paris “failed to establish any nexus

17 Before the district court, Sanderson Farms argued that the FMLA precluded liability

under this theory: “[S]erving as a witness to an allegedly hostile comment toward another

(continued...)

13

 Case: 13-20239 Document: 00512415104 Page: 13 Date Filed: 10/21/2013
No. 13-20239

between her potential role as a witness in Carroll’s case and [her] termination,”

the district court concluded that Paris “has not established a prima facie case

regarding her ‘witness retaliation claim.’” Even assuming arguendo that Paris

could establish a prima facie case, the district court would nevertheless grant

summary judgment, because Sanderson Farms “articulated a legitimate, nondiscriminatory reason for terminating [Paris],” and Paris failed to produce evidence showing that the stated reason was pretextual.

On appeal, Paris argues the district court erred in two ways: (1) Sanderson Farms did not move for summary judgment on her witness-retaliation claim,

and, therefore, the district court could not grant summary judgment on that

claim; and (2) Paris presented sufficient evidence to deny summary judgment.

We reject both of these claims. Rule 56 places the initial responsibility on

Sanderson Farms, as the “party seeking summary judgment[,] . . . to inform[] the

district court of the basis for its motion, and identif[y] those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, which it believes demonstrate the absence

of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); see FED. R. CIV. P. 56(c).

Sanderson Farms has met its burden under Rule 56. It moved for summary judgment on all of Paris’s claims, including witness retaliation.18 Further

17

(...continued)

employee several months earlier is not among the ‘rights’ enumerated under the FMLA or for

which retaliation is prohibited, and the letter does not provide a valid basis for an FMLA retaliation claim.” Because the plain text of § 2615(b)(3) appears to allow such a theory, however,

we do not affirm summary judgment on this ground.

18

In its motion for summary judgment, Sanderson Farms argued,

Plaintiff claims that Richard Warner retaliated against her for taking her first

(continued...)

14

 Case: 13-20239 Document: 00512415104 Page: 14 Date Filed: 10/21/2013
No. 13-20239

more, Sanderson Farms’ arguments—concerning both its non-discriminatory

basis and the lack of pretext—apply with just as much force to Paris’s witnessretaliation claim. Paris puts forward no precedent suggesting this degree of

identification is insufficient under Rule 56.19

 

As to her second basis of error, Paris does not point to any additional evidence that was not discussed above. We again find she has not presented evidence giving rise to a genuine issue on pretext.

C.

FMLA prohibits employers from “interfer[ing] with, restrain[ing], or deny-

[ing] the exercise of or the attempt to exercise, any right provided under” the

Act. 29 U.S.C. § 2615(a)(1) (2012). The district court granted summary judgment on Paris’s FMLA interference claim. Paris has not appealed this issue, so

18

(...continued)

FMLA leave . . . and that her discharge following her second period of FMLA

leave was motivated by an alleged disability and/or retaliation for taking medical leave, in alleged violation of the ADA, TCHRA and/or FMLA. . . . In this

case, Sanderson Farms has articulated a legitimate, non-discriminatory reason

for its actions, and there is no competent evidence of pretext. Accordingly, summary judgment should be entered for Sanderson Farms.

Sanderson Farms added, in a footnote, that Paris

also believes she may have been retaliated against for ‘being named as a witness’ in a demand letter submitted to Sanderson Farms by former Field

Employee Relations Manager Revena Carroll . . . . Jennifer Buster looked into

the concerns raised in Carroll’s letter, but there is no evidence to establish that

the letter played any role in Plaintiff’s termination several months later.

19 Paris only cites to Russ v. Int’l Paper Co., 943 F.2d 589 (5th Cir. 1991). In that case,

the defendant moved for summary judgment, identifying “two issues it contended were established in the record, either of which would be considered dispositive under Mississippi law

. . . .” Id. at 592. This court affirmed, finding that the defendant had met its burden under

Rule 56. Id. Nothing in Russ suggests that Sanderson Farms has not met its burden here.

15

 Case: 13-20239 Document: 00512415104 Page: 15 Date Filed: 10/21/2013
No. 13-20239

it is waived. See State v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).

D.

Lastly, Paris alleges two errors with the grant of summary judgment on

her claims under the ADA and TCHRA. First, she avers that because Sanderson

Farms did not move for summary judgment on the claims, the district court

could not grant summary judgment on them. Contrary to Paris’s claim, however, as discussed above, Sanderson Farms moved for summary judgment on all

of Paris’s claims, specifically those under the FMLA, ADA, and TCHRA.20 Sanderson Farms has met its Rule 56 obligations.

Second, without presenting any additional justifications, Paris again

argues “summary judgment should still have been denied because Paris presented evidence of pretext.” We again conclude that Paris has not presented evidence giving rise to a material factual dispute on pretext.

The judgment is AFFIRMED.

20

In its motion for summary judgment, Sanderson Farms argued as follows:

Plaintiff claims that Richard Warner retaliated against her for taking her first

FMLA leave . . . and that her discharge following her second period of FMLA

leave was motivated by an alleged disability and/or retaliation for taking medical leave, in alleged violation of the ADA, TCHRA and/or FMLA. . . . In this

case, Sanderson Farms has articulated a legitimate, non-discriminatory reason

for its actions, and there is no competent evidence of pretext. Accordingly, summary judgment should be entered for Sanderson Farms.

16

 Case: 13-20239 Document: 00512415104 Page: 16 Date Filed: 10/21/2013