### REVI SED Oc tober 21, 2013

I N THE UNI TED STATES COURT OF APPEALS

FOR THE FI F TH CI RCUI T

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.

A ppeal 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: * U n it e d S ta t e s C o u r t o f A p p e a l s F if th C i r c u i t 

### F I L E D October 18, 2013 Ly le W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-20239 Document: 00512415104 Page: 1 Date Filed: 10/21/2013No. 13-20239

Anniesa Paris, a former employee of Sanderson Farms, Inc. (“Sanderson Farms”), appeals a summary judgment d i s m i s s i n g h e r discrimination and retaliation claims. We affirm.

I. In 2008, Paris began wor k i n g at Sanderson F arms’ poultry processing plant as a personnel clerk and was shortly thereafter promoted to the position of e m p l o y e e r ecords clerk. Sanderson Farms h as its own Family and Medical Leave Act Policy for Salaried Employees (“th e P o l i c y”) for handling employee leave u nder the F amil y a n d M edical Leave Act (“FMLA”). The Policy permits employees to take up to t hirteen weeks’ leave annually, rather than the twelve weeks p rovided by the statute. The Policy i mposes certain protocols employees must follow before 1 a n d d u r ing 2 their leave. The Policy also specifies that “an employee[] w ho fail[s] to return a fter exhausting their thirteen w eeks of FMLA leave will be subject to discharge” unless Sanderson Farms grants an extension. 3

1 The Policy requires em p loyees to “p rovid e [Sand ers on Farm s ] w ith s uf f icient inf

orm ation to enable it to d eterm ine w hether the leave reques ted qualif ies as FM L A leave. ” Sand ers on Farm s , w here ap p rop riate, “w ill require certif ication is s ued by a health care p rovid er of
an em ployee’s need f

or leave becaus e of the em ployee’s ow n s erious health cond ition

. . . . ” An
em p loyee m us t s ubm it this certif ication w ithin fif

teen d ays af

ter receiving the form s from Sand ers on Farm s “unles s [ s uch s ubm is s ion] is im p racticable

. . . and the em ployee has m ad e d iligent, good f

aith ef forts to com p ly w ith this d ead line. ”

2 The Policy requires em p loyees on leave to “call the Field E m p loyee Relations M anager p eriod ically to rep ort on their s tatus and intent to return to w ork

. ”

3 The Policy allow s “em p loyees w ho, becaus e of dis ability, rem ain tem p orarily unable to p erf orm their jobs af

ter exhaus ting FM LA leave may reques t extens ions of leave beyond the thirteen- w eek lim it. ” The em p loyee m us t reques t the extens ion reas onably in ad vance of the exp iration of the exis ting leave, and any s uch extens ion “m us t be ap p roved by [ Sa n d e r s o n Farm s ’] Executive Com m ittee. ”
2 Case: 13-20239 Document: 00512415104 Page: 2 Date Filed: 10/21/2013No. 13-20239

On October 19, 2009, Paris took FMLA leave t o undergo and r ecover from

a surgical procedure; s he returned to work o n November 16. Paris claims that, during her leave, her supervisor, R ichard Warner, harassed her regarding her leave. 4 In December, Sanderson Farms terminated Warner for p oor job performance, i n cluding for issuing Paris’s improper write-ups. Also i n December, Sanderson Farms received a demand letter from a f ormer employee, Revena Carroll, al l eging claims of discriminatory and r etaliatory discharge and claiming that Paris had witnessed a n incident related t o Carroll’s claims against Sanderson Farms. 5 Paris began a s e c ond FMLA leave on D e c e mber 17 after receiving treatment at the emergency room. Her treating physician, Gerald Salinas, submitted

a completed FMLA certification on December 3 0 saying that Paris would be out of work for “two to three weeks” t o give Salinas a chance to determine the cause of her symptoms. On January 8, 2010, Orman cal l e d P aris to s ee whether she planned to

r e t u r n t o work or would need additional l eave. Because Paris d i d n ot kn o w when she wou l d r eturn, O rmon told her that she would need to submit an updated FMLA certification to cover any additional leave. O n January 22, Paris submitted an FMLA c ertification signed b y Salinas, indicating a return date of

4 Paris claim s Warner told her s he w as not f ollow ing the Policy, w hich required her to
s ubm it a tim ely d oc t o r ’ s n o t e to excus e an abs ence. When Paris returned to work , Warner is sued her tw o w rite- up s f or exces s ive latenes s and the unauthorized releas e of inf orm ation f rom p ers onnel f

iles

. P aris com p lained to t h e D ivis ion Manager, Tod d Orm on, reques ting thos e “bogus ” w rite- up s be rem oved f rom her f

iles

. O rm on d eterm ined that the w rite- up s w ere unjus tif ied and rem oved them

.
5 Carroll’s letter alleges the f ollow ing altercation: “When Annies a Paris hand ed [ d ocum entation ind icating Carroll required extend ing her FM LA leave] to Mr. Orm on, he look ed at it, then threw it back at her angrily, and s aid , ‘I d on’t need this , I’ll tak e care of it m ys elf

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

January 25. Paris did not return to work on January 25 b ut i nstead submitted a note from Salinas indicating that Paris needed to remain out of work “until she’s released by the Gastroenterologist.” That same day, V eronica Campbell, who

was Warner’s replacement, sent a certified letter to Paris that i ndicated (1) Paris needed to send a new c ertification to cover any l eave beyond January 25 , and (2) Salinas’s note was insufficient documentation. T wo days later, Salinas submitted an updated FMLA certification stating that P a ris 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 P aris “is still waiting to see GI [on] 3/18/10 and is still off work.” On February 26, Ormon r equested Paris’s leave b e ext e nded to March 18. Sanderson Farm’s Executive Committee approved the extension. Paris saw h e r gastroenter o logist, Anupama Duddempudi, on M a rch 18, then called Campbell to s ay she would be unable to return to w ork at that time. On M arch 23, Salinas sent Sanderson Farms a note stating Paris was “ excused from work until G astroenterologist, 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 Bas ed on Sand ers on Farm s ’ calculations , w hich Paris d oes not dis p ute, Paris ’s leave und er the Policy exp ired on or about February 1 8 , and Paris ’s tw elve- week statutory leave exp ired on or about February 11.

7 The cover letter ind icates Ap ril 10 as the d ue d ate, w hereas the attached certif ication ( continued

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

In the afternoon of Friday April 9, S alinas faxed Campbell a m edical certification form indicating that P aris’s expected date to return to work was “today, 4/09/10.” 8 Shortly after receiving that certification, C ampbell 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 a ction, Sanderson Farms should wait to see whether she came to w ork o n Monday April 12. Paris claims she left messages for Campbell on April 2 to inform Cam p b e l l t h a t she had a p r ocedure scheduled f

o r April 5, and on April 8 to i n f orm Campbell that her paperwork would be delayed because her doctor w a s out o f 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 a n d C a m p b e l l c o n c e r n i n g P a r i s ’ s e m p l o y m e nt status; after that conversation, Buster 1 0 terminated Paris’s employment. T he p arties disagree on the effec

7 (

. .. continued ) required Paris to return the certif ication by Ap ril 9. In its brief , Sand ers on Farm s contend s “Ap ril 9, 2010 w as the correct d ate, becaus e Ap ril 10 w as a Saturd ay. ”

8 Paris p oints to s everal “od d ” f eatures of the f

ax: (1) In s p ite of the January 25 letter ind icating Paris w ould rem ain out of w ork “until she’s releas ed by the G a stroenterol ogi st , ” the certif ication cam e f

rom Salinas , not D ud d em p ud i; (2) the certif ication cam e on Ap ril 9 ins tead of Ap ril 15, w hen D u d d e m p ud i was s up p os ed to return to her of f ice; ( 3) the d ocum ent w as f axed at 3: 15 p .m
. on a Frid ay, “ind icating Paris w as releas ed to w ork then, the s am e d ay s he
w as s up p os ed to return to w ork ; ” ( 4) the d ocum ent w as not p ers onally p res ented by Paris ; and ( 5) Cam pbell ad mitted the releas e had s om e od d f eatures

.
9 Sand ers on Farm s p oints to und is p uted tes tim ony ind icating that the only m eans to
s end C am p bell a mes s age w ould by leaving a mes s age w ith the recep tionis t. That is , p hones in the p roces s ing plant d o not have voice m ailboxes

. Per her d ep os ition tes tim ony, C am p bell “d oes not rem em ber” w hether she received a call f rom P aris bef

ore A p ril 5 or on Ap ril 8.

1 0 At his d ep os ition, O rm on tes tif ied that although he w as involved in the d ecis ion to ( continued

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

tive date of termination: Sanderson Farms claims it was April 9 , 1 1 but P aris claims it was April 1. 1 2 Paris sued, allegin g t h a t Sanderson Farms interfered with her rights under the FMLA and discriminated and r e taliated against her by terminating her in violation of t he F MLA, the Americans w ith Disabilities Act (“ADA”), and the Texas Commissi o n o n Human Rights Act (“TCHRA”). The district court granted summary judgment on all claims.

I I. We review a summary judgment de novo , “using t he same stan1 0 (

. . . continued ) term inate Paris , the ultim ate d ecis ion w as m ad e by Bus ter. Paris ’s couns el as k ed B us ter d uring her d ep os ition w hos e d ecis ion it w as to term inate: “yours or [ O rm an’s ] or s om ebod y’s els e?” B u s ter res p ond ed that the “p olicy d ictated ” term ination; Cam p bell tes tif ied that s h e w a s involved only in hand ling the p ap erw ork regard ing Paris ’s term ination. In its interrogatory
res p ons es , Sand ers on F arm s s tated that B us ter and Cam pbell w ere both involved in the d ecis ion.

1 1 Sand ers on Farm s relies on three p ieces of evid en c e f or this d ate: ( 1) A Sand ers on Farm s “Salaried Payroll A uthorization” f orm s igned by O rm on and Cam p bell on Ap ril 13 ind icates that the ef

f ective d ate of term ination w as Ap ril 9; ( 2 ) P a r is w as told to f ile her s econd extens ion by A p ril 9; and ( 3) Salinas ’s f ax cleared Paris f

or w ork on A pril 9.

1 2 Paris als o relies on three p ieces of evid ence in sup p ort of this d ate: ( 1) D uring a telep hone convers ation bet w een her and Cam p bell on Ap ril 15, Cam p bell told her that s he had been term inated on Ap ril 1; ( 2) the “Salaried P ayroll Authorization” form originally ind icated Ap ril 1 a s t h e t e r m i nation date, but Sand ers on Farm s had altered the form to ind icate an ef f ective d ate of Ap ril 9 ( Accord ing to Paris , the f orm i t s e l f m a k es this alteration read ily ap p arent. ); and ( 3) a Cons olid ated O m nibus Reconciliation Act ( “CO BRA”) f orm p rovid ed to Paris af ter her term ination lis ts “End of em p loym ent” as occurring on Ap ril 1. Sand ers on Farm s d is p utes thes e as s ertions : ( 1 ) Cam p bell d enies having a convers ation w ith Paris on Ap ril 15; ( 2) there is no evid ence that the d ate on the f orm has been altered ; and ( 3) p er Cam p bell’s tes tim ony, the d ate on the CO BRA f orm m erely ref

lected that Paris ’s p ay c h e c k w ould be s top p ed as of M arch 31 “s o s he would n’t be p aid as of Ap ril the 1s t. But Ap ril the 9th w as the actual ef

f ective d ate” of term ination. 6 Case: 13-20239 Document: 00512415104 Page: 6 Date Filed: 10/21/2013No. 13-20239

dard as that employed b y the district court under Rule 5 6.” Kerstett e r v
. Pac. Scientific Co. , 210 F.3d 431, 4 35 (5th Cir. 2 000). S u m mary judgment is a ppropriate “if the movant shows that there is n o genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F E D

. R. C I V

. P . 56(a).
Newman v. Guedry , 703 F.3d 757, 7 6 1 ( 5 t h C ir. 2 012), cert. d enied , 2013 U.S. LEXIS 5708 (U.S. Oct. 7, 2 013) (No. 12-1437). We c o nsider “all facts and inferences in the light most f avorable to the nonmoving p arty when reviewing grants of motions for summary j udgment.” Murray v. Earle , 405 F.3d 2 78, 284 (5th Cir. 2005) (citation omitted).

A. F M L A p r o h i b i t s e m ployers from “discharg[ing] or in any other manner d i s criminat[ing] a gainst any individual” who t a kes 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 I ns. Co. , 1 62 F.3d 379, 383 (5th Cir. 1998). Where, as here, the employee has not offered d irect evidence of discrimination, this court applies the familiar three-step burden-shifting analysis established i n McDonnell Douglas Corp. v. Green , 411 U.S. 792, 800-03 (1973). 1 3 First, the employee must establish a prima facie case of discri m i n a t i o n. Second, if he does that, the burden shifts to the employer to provide a legitimate, non-discriminatory r eason for the adverse action. Finally, if the employer meets its b urden, the e mployee m ust show t hat t he reason p rovided was a pretext for discrimination.

1 3 See Cha

f f i n v
. John H

. C a rter C o. , 179 F. 3d 316, 319 ( 5th Cir. 1999) , p a rti al l y a broga ted on ot h e r grounds by Reev es v
. Sa nderson Pl um bi ng Prods. , Inc. , 530 U

. S. 133, 146–49 ( 2000)

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

Sanderson Farm assumed Paris could establish a prima facie case, so we, like the district court, a ssume that. We next m ust i nquire whether Sanderson F a r m s p r o d u c e d e v i d e n c e d e m o n s t r a t i n g a l e g i t i m a t e , n o n - d i s c r iminatory reaso n for t erminating P aris. Sanderson Farms p ut f o r ward e vidence demonstrating it terminated P aris’s employment when she failed (1) to return to work following her extended FMLA l eave and (2 ) t o submit any certification seeking another extension. Because failure to return following a FMLA leave constitutes a legitimate, non-discriminatory basis for termina t i o n , S anderson Farms has met its burden under McDonnell ’ s second step. See Hart v
. Comcast o f Hous., LLC , 347 F. App’x 978, 980 (5th Cir. 2009). Thus, moving t o McD o nnell ’s third step, summary judgment must be affirmed unless Paris can identify evidence that creates a genuine issue of fact that Sanderson Farms’ justification w as pretextual. That is, Paris needs to have
p u t forward s ufficient evidence to show Sanderson Farms t e rminated h e r employment because she t ook FML A l eave. W e agree with the d istrict court: None of the “plethora of arguments” P aris argued before t he 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 t estimony regarding messages she left on April 2 and 8

. Even if the record demonstrates Paris l e ft these messages with t he receptionist, Paris would not have c omplied w ith Sanderson Farms’ p olicy. Paris does not dispute any of the following f

our findings: (1) S he received Campbell’s March 25 letter; (2) that letter informed her that she needed either t o r eturn to work or to submit completed certification forms by April 10; (3) the letter included b lank certification

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

forms; and (4) s h e d i d not s ubmit completed certification forms to Sanderson Farms, exactly the r eason Sanderson Farms j ustified its t e r m i nation on. The evidence Paris points to does not demonstrate a genuine issue on pretext. Second, P a r i s c laims S anderson Farms’ failure to contact her between April 9 and April 1 3 creates a genuine i s sue on p r etext. Pa r i s argues that because she had complied with company p olicy t hus far, Sanderson Farms’ failure to clarify t he “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 m iscommunication,” a gain suggesting “Ormon was waiting for a pretext to terminate her” for taking FMLA leave. Neither of these arguments creates a g enuine issue. Paris, contrary to her assertion, did not comply with “every request of Sanderson Farms

. ” A s discussed above, Paris does not dispute (1) she received Campbell’s M arch 25 letter; and (2) t hat letter described the exact steps she needed to take to remain employed. The record there f ore indicates Sanderson Farms clearly informed Paris o f what she needed to do to. Even if Salinas’s certification was “odd,” the Policy still required P aris either to return to work or t o submit completed certification by April 10. Paris failed to do so. In terms of her second argument, P aris h as not put f orward any evidence showing that the Policy r equired Sanderson Farms to clarify an employee’s failure to comply. Paris po i n t s o nly to Campbell’s d e position testimony, in which Campbell was asked about what she believed a c ompany s h ould do in certain situations. 1 4 That t e stimony does n ot state what Sanderson Farms required its

1 4 The relevant dep os ition tes tim ony is as f ollow s : ( continued

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

employees to do in this s ituation. Even if this testimony somehow revealed Sanderson Farms’ policy, it does not p rovide evidence that it violated its policies. At best, the testimony shows S a nderson Farms has a general duty t o communicate with its employees while they were on m edical leave, which it certainly did here. Furthermore, even if this testimony shows S anderson Farms violated its internal policies

SS which it does n ot

S S such evidence does not preclude summary judgment. 1 5 It i s true that such violation of internal policies, d e pending o n, inter alia , t he nature of the internal policy and the extent o f t he d e viation in the particular case, could give rise to evidence of pretext in l ight of all the other relevant facts. See, e.g. , M

achinchick v. PB P

ower, Inc. , 3 98 F .3d 345, 355 (5th Cir. 2005). H e re, however, the undisputed evidence shows Sanderson Farms repeat e d l y

1 4 (

. . . continued ) [ Plaintif f ’s Couns el] : Do you believe that a com p any s hould tak e care to ens ure that it has good reas on to term inate an em p loyee? [ Cam p bell] : Yes

. [ Plaintif f ’s Couns el] : D o y ou believe that a com p any s hould tak e care to ens ure that it has a good reas on to term inate an em p loyee? [ Cam p bell] : Yes

. [ Plaintif f ’s Couns el] : D o y ou believe that a com p any s hould tak e care to ens ure that it has its f acts s traight bef

ore term inating an em p loyee? [ Cam p bell] : Yes

. [ Plaintif f ’s Couns el] : D o you believe that a com p any s hould tak e care to ens ure it’s not term inating an em p loyee bas ed on w rong inf orm ation? [ Cam p bell] : Yes

. [ Plaintif f ’s Couns el] : D o y ou believe that a com pany s hould tak e care to ens ure it is not term inating an em p loyee bas ed on f als e inf orm ation? [ Cam p bell] : Yes

.

. . . [ Plaintif f ’s Couns el] : And is it als o im p ortant f or a com p any to com m unicate w ith an em p loyee w hen the em ployee is out on med ical leave? [ Cam p bell] : Yes

.

1 5 See G rubb v
. Sw

. A irl i nes , 296 F. Ap p ’x 383, 390 ( 5th Cir 2008) ( p er curiam ) ( “Failure to follow internal p roced ures is generally not enough to create a genuine is s ue of f act as to d is

crim inatory m otives

. ”)

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

communicated with Paris and told her the spec i f i c o b ligations to remain employed. Even i f the r ecord clearly s h owed Sanderson Farms’ policy required it t o have communicated with Paris between April 9 and the time of termination, and Sanderson Farms failed to d o so, that evidence does not give rise to a genuine issue on pretext. Third, P aris attempts to s how pretext by arguing she ha s p u t f o r ward sufficient evidence showing her effec t i v e t ermination 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 “h a s b e e n altered to change the Effective D ate a nd Term Date f rom ‘4/1/10’ to ‘4/9/10’ ”; (2) the C OBRA letter states Paris’s medical benefits ended on April 1; and ( 3) C ampbell’s a llegedly 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 r e turn t o work on A pril 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 d ispute on p retext. With respect t o the allegedly altered date, without pointing to any expert t estimony or other objective c r iteria, P aris merely asserts the form makes it clear that the d a te has bee n a l t e r e d

. She does not expl a i n why or how the document w as altered, and she ignores Buster’s and Ormon’s testimony: Both s tated under oath that t hey did not, n or d id they instruct anyone else to, alter the document. As to the second contention, the undisputed record explains the discrepancy between the e ffective t ermination date (April 9) and the d a te l isted on the

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

COBRA letter (April 1). Under Sande r s o n Farms’ salary-continuation policy, Paris’s pay continued only t hrough M arch 1 8 ( when her c e rtification from Salinas expired). The date o n t h e C O BRA form merely reflected that P aris’s paycheck would be stopped as of March 31, because no further pay was due. Finally, as to h er third contention, like the altered date, without a ny substantiation, Paris merely asserts Campbell called her and told her t hat April 1 was her effective termination. That “ evidence” amounts to nothing more than “conclusor y s t a t e m e n t s , s p e c u l a t i o n , a n d u n s u b s t a n t i a t e d a s s e r t i o n s ” a n d, therefore, cannot defeat summary j udgment. See RSR Corp. v. Int’l Ins. Co. , 612 F.3d 851 (5th Cir. 2010). Four t h , Paris contends Sanderson Farms “ changed its story” a bout who made the termination decision. We agree with t he district court that “a proper reading o f the record does n ot demonstrate any meaningful inconsistency” about who a t Sanderson F arms decided to terminate Paris’s employment. 1 6 Likewise, the d istrict court properly concluded “the salient question is not w ho terminated the p laintiff but why s he was terminated.” As discussed a bove, the undisputed record indicates Sanderson Farms terminated Paris because s he f ailed either to return to work or to submit an updated certification form. This contention does not create a genuine issue on pretext. Lastly, P aris contends “Ormon h a s a n e g a t i v e a t t i t u d e t oward FMLA leave and S anderson Farms has a pattern and practice of terminating e mployees for taking FMLA leave.” To s ubstantiate her claim that p retext can be shown by Ormon’s negative attitude, instead of offering her own “conclusory statements,

1 6 E ach of Sand ers on Farm s’ w itnes s es , as w ell as its interrogatory res p ons e, id entif ied Bus ter as the d ecis ion- m ak er, w ith s om e d egree of inp ut f rom Cam pbell and O rm on. 12 Case: 13-20239 Document: 00512415104 Page: 12 Date Filed: 10/21/2013No. 13-20239

speculation, and un s u b stantiated assertions,” Paris now offers statements by Carroll. The d istrict court i n C a r r oll’s case in fact noted that m uch of her evidence c ontained “unsupported conclusory assertions [and] s peculation.” Carroll

v. Sanderson Farms, Inc. , No. H-10-3108, 2 012 WL 3866886, at *14-15 (S.D. T ex. Sept. 5, 2012). In terms of her second contention, P aris has likewise not put f orward sufficient e vidence of a pattern and practice o f retaliation. First, she does not dispute that Sanderson Farms’ FMLA leave policy provides m ore generous benefits than required by state and federal law—a fact i n consistent 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 e x p ired. We a gain agree with the district court that Paris has not o ffered a ny competent evidence giving rise to a genuine issue on pretext.

B. FMLA prohibits employers from “discharg[ing] o r i n a n y o t h e r m a n n e r discriminat[ing] against a ny individual because such individual

. . . h as testified,

or is about to t estify, i n any i nquiry o r proceeding relating to any r i ght p rovided under this subchapter.” 29 U.S.C. § 2615(b)(3) (2012) (emphasis added). Paris asserted she had b een terminated in retaliation for having been identified as a witness in Carroll’s lawsuit. 1 7 Finding that Paris “failed to establish any nexus

1 7 B ef ore the d is trict court, Sand ers on Farm s argued that the FM LA p reclud ed liability und er this theory: “[ S] erving a s a w itnes s to an alleged ly hos tile com m ent tow ard another ( continued

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

between her potential role as a witness in C arroll’s case and [her] termination,” the d i s t rict court concluded that Paris “has not established a prima facie case regarding her ‘witness retaliation claim.’” Even assuming arguendo that Paris

c o uld establish a prima facie case, the district court would nevertheless gran t
summary judgment, b ecause Sanderson Farms “ar t i c u l ated a legitimate, nondiscriminatory reason for t e rminating [ Paris],” a nd Paris failed to produce evidence showing that the stated reason was pretextual. On appeal, Paris argues the district court erred in t wo ways: (1) Sanderson F arms did not move for summary judgment on her witness-retaliation claim, and, t herefore, the d istrict court c ould not grant summar y j u d g ment on that claim; and (2) Paris presented sufficient evidence to deny summary judgment. We reject both of these claims. Rule 5 6 places the initial r esponsibility on Sanderson Farms, as t he “party seeking summary judgment[,]

. . . to inform[] the district court of the basis f or its motion, and identif[y] those portio n s of the pleadings, depositions, answers to interrogatorie s , a n d admissions on file, together with the affidavits, i f any, which i t believes d e monstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986); s e e F E D

. R. C I V

. P. 56(c). Sanderson Farms has m et its burden under R u l e 56. It moved for summary judgment on all of P aris’s claims, including witness retaliation. 1 8 Further

1 7 (

. . . continued )
em p loyee s everal m onths earlier is not am ong the ‘rights ’ enum erated und er the FM LA or f or w hich retaliation is p rohibited , and the letter does not p rovid e a valid bas is f or an FM LA retaliation claim

. ” Becaus e the p lain text of § 2615( b) ( 3) ap p ears to allow s uch a theory, how ever, w e d o not af

f irm s um m ary jud g ment on this ground

.

1 8 In its m otion f

or s um m ary jud gm ent, Sand ers on Farm s argued , Plaintif f claim s that Richard Warner retaliated agains t her f or tak ing her f

irs t ( continued

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

more, Sanderson Farms’ arguments— c o ncerning b oth i ts non-discriminatory basis and the lack of pretext—apply with just as much force to Paris’s witnessreta l i a t i o n claim. Paris p uts forward no p recedent suggesting this degree of identification is insufficient under Rule 56. 1 9 As to her second basis of error, P aris d oes not p oint to any additional evidence that was not discussed above. We again f i n d she has n ot presented evidence giving rise to a genuine issue on pretext.

C. FMLA prohibits emp l o y e r s f r o m “ interfer[ing] with, restrain[ing], or deny- [ing] t h e e x e r c ise of or the a ttempt to exercise, any r ight provided under” the Act. 2 9 U.S.C. § 2615(a)(1) (2012). The district court g ranted summary judgment on Paris’s FMLA interference c l aim. Paris has not appealed this issue, so

1 8 (

. . . continued ) FM LA leave

. . . and that her dis charge follow ing h e r s e c o nd p eriod of FM LA leave w as motivated by an alleged d is ability and / or retaliation f or tak ing m ed ic a l leave, in alleged violation of the AD A, TCH RA and / or FM L A

. . . . In thi s cas e, Sand ers on Farm s has articulated a legitim ate, non- d is crim inatory reas on f or its actions , and there is no com p etent evid ence of p retext. Accord ingly, s um m ary jud gm ent s hould be entered f or Sand ers on Farm s. Sand ers on Farm s ad ded , in a footnote, that Paris
als o believes s h e m a y h a ve been retaliated agains t f or ‘being nam ed as a w itnes s ’ i n a d em and letter s ubm itted to Sand ers on Farm s by f orm er Field Em p loyee R elations M anager Revena Carroll

. . . . Jennif er Bus ter look ed into the concerns rais ed in C arroll’s letter, but there is no evid ence to es tablis h that the letter p layed any role in Plaintif f ’s term ination s everal months later.

1 9 Paris only cites to Russ v
. Int’l Pa p er Co. , 943 F. 2d 589 ( 5th Cir. 1991)

. In that cas e, the d ef end ant m oved for sum m ary jud gm ent, id entif ying “tw o is s ues it contend ed were es tablis hed in the record , either of w h ich w ould be cons id ered d is p os itive und er M is s is s ip p i law

. . . . ” Id. at 592. This court af f irm ed , f ind ing that the d ef

e nd ant had met its burd en und er Rule 56. Id. N othing in Russ sugges ts that Sand ers on Farm s has not met its burd en here. 15 Case: 13-20239 Document: 00512415104 Page: 15 Date Filed: 10/21/2013No. 13-20239

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

D. Las tly, P aris alleges two errors with the grant of summary judgment on her c laims under the ADA and TCHRA. First, she a vers that because Sanderson Farms d id not mov e f o r s u m mary judgment on the claims, the district court could n ot grant s ummary judgmen t o n t hem. Contrary to P aris’s claim, however, as discussed a bove, Sanderson Farms m oved for summary judgment on all of Paris’s claims, specifically t hose under the FMLA, ADA, and TCHRA. 2 0 Sanderson Farms has met its Rule 56 obligations. Seco n d , w i thout p resenting any additional justifications, Paris again
argues “su m m a r y judgment should still have been denied b ecause Paris presented evidence of pretext.” We again conclude that Paris h as not presented evidence giving rise to a material factual dispute on pretext. The judgment is AFFIRMED.

2 0 In its m otion f

or s um m ary jud gm ent, Sand ers on Farm s argued as f ollow s : Plaintif f claim s that Richard Warner retaliated agains t her f or tak ing her f

irs t FM LA leave

. . . and t h a t h e r d is charge f ollow ing her s econd p eriod of FM LA leave w as motivated by an alleged d is ability and / or retaliation f or tak ing m ed ical l e a ve , i n a l l eged v i ol a ti on of t he A D A , TCH RA a nd/ or FM

LA

. . . . In this
cas e, Sand ers on Farm s has articulated a legitim ate, non- d is crim inatory reas on f or its actions , and there is no com p etent evid ence of p retext. Accord ingly, s um m ary jud gm ent s hould be entered f or Sand ers on Farm s. 16 Case: 13-20239 Document: 00512415104 Page: 16 Date Filed: 10/21/2013