* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 15, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 03-30404

Summary Calendar

__________________________

ROSA MCLAUGHLIN,

Plaintiff-Appellant,

versus

W & T OFFSHORE, INC.,

Defendant-Appellee.

___________________________________________________

Appeal from the United States District Court

For the Eastern District of Louisiana

(No. 02-CV-872)

___________________________________________________

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM: *

Appellant Rosa McLaughlin (“McLaughlin”) appeals the district court’ s grant of summary

judgment to Appellee W & T Offshore (“W & T” ) o n her pregnancy discrimination claims.

McLaughlin claimed discrimination in violation of the Pregnancy Discrimination A ct (“PDA”), 42

U.S.C. § 2000(e) et seq.

, and state pregnancy discrimination laws, discrimination in violation of the1 W & T initially filed a motion for summary judgment on June 18, 2002, which was stayed

for discovery and eventually denied as premature, although the district court stated that W & T

could “refile” this motion after McLaughlin conducted more discovery.

2 Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 e t seq

., and retaliation. Finding no

error, we AFFIRM.

I. FACTS AND PROCEEDINGS

McLaughlin was hired by W & T as an accounting clerk in 1997. She went on maternity leave

f ro m July 18, 2000 until September 12, 2000. Upon her return to work on September 13,

McLau ghlin was told she was terminated because her position had been eliminated. During

McLaughlin’s maternity leave, two other employees took over her duties in addition to their own.

Because W & T claimed these two employees would function better a t McLaughlin’s job than

McLaughlin, she was terminated. On March 22, 2002, McLaughlin filed a complaint alleging

violations of FMLA, the PDA, and alleging retaliation. After a period of discovery, W & T filed a

second 1 motion for summary judgment, which the district court grant ed on March 27, 2003,

dismissing McLaughlin’s complaint with prejudice.

On appeal, we construe, as we must, the following evidence and facts in favor of McLaughlin.

McLaughlin’s direct supervisor through Oct o ber 1999 indicated he was satisfied with her work.

Similarly, McLaughlin’s supervisor at the time of her termination never recommended her dismissal,

and instead indicated that she had achieved job expectation. McLaughlin admits that she received a

reprimand for tardiness in December 1998. After that warning, however, she was never warned again

for tardiness. McLaughlin also admits that she left the fax machine unplugged, warranting another

reprimand in her personnel file. Again, after this infraction, McLaughlin claims there were no further

incidents. Although she was given a warning for making excessive personal telephone calls in May3

1999, no further warnings were given. None of these infractions suggested to McLaughlin that she

was in danger of losing her job.

McLaughlin claims that she was not responsible for an alleged interest expense to W & T of

$1,945.21 arising out of a mistaken loan to W & T of $1,000,000.00, and never received the written

reprimand allegedly sent by W & T. McLaughlin does acknowledge nonperformance of her duty to

send out checks, but insists she was never disciplined for this mistake, and never received the written

reprimand allegedly sent by W & T. McLaughlin further admit s to sending wire instructions to

Whitney Bank via fax, not normally a task she would be permitte d to perform, but maintains she

performed these duties at the behest of her supervisor, and that W & T subsequently accepted her

explanation of the incident.

Finally, certain employees at W & T made comments to McLaughlin after she announced her

pregnancy. One employee, not McLaughlin’s supervisor, commented that McLaughlin should not

return to work after her maternity leave, because her husband made enough money for McLaughlin

not to need to work. Another co-worker, one of the two employees who l ater took over

McLaughlin’s duties, indicated to McLaughli n t hat she intended to replace McLaughlin after her

return from maternity leave.

II. STANDARD OF REVIEW

We review rulings on motions for summary judgment de novo

, applying the same standard

as the district court. K

ing v. Ill. Cent. R. R.

, 337 F.3d 550, 553 (5th Cir. 2003). A court may only

grant summary judgment if there is no genuine issue of material fact, such that the moving party is

entitled to judgment as a matter of law. F E D

. R. C IV

. P. 56(c). “In determining whether summary

judgment is appropriate, all the evidence introduced and all of the factual inferences from the evidence2 McLaughlin does not argue that she has waived her FMLA claim and her retaliation

claim. We therefore do not address those claims on appeal.

4 are viewed in a light most favorable to the party opposing the motion and all reasonable doubts about

the facts should be resolved in favor of the nonmoving party.” T errebonne Parish Sch. Bd. v. Mobil

Oil Corp. , 310 F.3d 870, 877 (5th Cir. 2002).

III. DISCUSSION

On appeal McLaughlin only contests the district court’s dismissal of her PDA claims. 2 We

analyze a PDA claim in the same way that we analyze a Title VII discrimination claim. Urbano v.

Cont’l Airl ines, Inc. , 138 F.3d 204, 206 (5th Cir. 1998). A plaintiff can prove pregnancy-based

discrimination either by direct or circumstantial evidence.

A. Intentional Discrimination

McLaughlin alleges intentional discrimination by her employers, but offers no direct evidence

of such discrimination. The statement by one employer that he could not say with certainty that if

McLaughlin had not gone on maternity leave, she would still have been fired on September 13 is

simply insufficient. It requires the fact-finder to infer from this statement some discriminatory intent.

Because inference is necessary, it is not direct evidence. F abela v. Socorro Indep. Sch. Dist. , 329

F.3d 409, 415 (5th Cir. 2003).

B. Circumstantial Evidence of Discrimination

In order to establish discrimination based on circumstantial evidence, the burden is first on the

plaint iff to “isolate and identify a particular employment practice which is the cause of the disparity

and provide evidence sufficient to raise an inference of causation.” G arcia v. Wom en’s Hosp. of

Texas , 97 F.3d 810, 813 (5th Cir. 1996). After making out this prima facie case, the burden shifts5

to the employer to provide evidence that the practice is related to a legitimate, non-discriminatory

purpose. W

allace v. Methodist Hosp. Sys.

, 271 F.3d 212, 219 (5th Cir. 2002). Once a defendant

produces this non-discriminatory purpose, the presumption of discrimination dissolves and the

plaint iff bears the ultimate bu rden o f persuading the fact-finder that the employer intentionally

discriminated against her, and that the non-discriminatory justifications are mere pretext. L axton

, 333

F.3d at 578.

1. McLaughlin made out a prima facie case of discrimination.

Although disputed by W & T, McLaughlin provid ed eno ugh evidence to establish a prima

facie case of discrimination. In order to make out a prima facie case of discrimination under Title

VII, a plaint iff must show: (1) she was a member of the protected class; (2) she was qualified for the

position; (3) she was discharged; and (4) after she was discharged, she was replaced with a person

who is not a member of the protected class. B auer v. Albermarle Corp.

, 169 F.3d 962, 966 (5th Cir.

1999). No one disputes that McLaughlin was pregnant, or that she was discharged. As the district

court correctly noted, McLaughlin was moved into a position for which W & T felt she was qualified.

Further, although McLaughlin was not replaced by a single person, her duties were delegated to two

employees who were not pregnant. McLaughlin est ablished a prima facie case of pregnancy

discrimination.

2. W & T provided a non-discriminatory justification for the action.

W & T has maintained throughout the litigation that t hey terminated McLaughlin’s

employment because during her maternity leave, it was discovered tha t other employees could

perform both their duties and M cLaughlin’s better and with fewer errors than McLaughlin could

alone. McLaughlin counters these assertions by claiming that W & T has not consistently stated that6

her termination was due to elimination of her position, but rather has wavered between arguing her

dismissal was one for cause, due to the incidents mentioned above, and arguing termination due to

elimination of her position. McLaughlin’s arguments are unavailing. Based on the record, W & T

has not made two separate arguments, but rather has always argued that McLaughlin’s position was

eliminated. One o f t he reasons it was eliminated was that two other employees could perform

McLaughlin’s work with fewer errors than could McLaughlin. To prove this point, W & T provided

examples of mistakes or omissions attributed to McLaughlin. McLaughlin does not dispute most of

these errors; she merely cont ends t hat she was not put on notice that she could be fired for such

lapses. There is nothing nefarious about W & T’s argument, and they meet the burden of providing

a non-discriminatory justification for McLaughlin’s firing.

3. McLaughlin did not prove the non-discriminatory purpose was pretextual.

In order to succeed in proving pretext, McLaughlin must disprove each non-discriminatory

justification for her dismissal. W allace

, 271 F.3d 212, 222 (5th Cir. 2001). McLaughlin must further

provide “substantial evidence,” not a mere scint illa, of the pretext. L axton

, 333 F.3d at 579. Unlike

Laxton

, in which the plaint iff established the defendant’s arguments were pretextual by proving both

the falsity of the violations and that other evidence undermined defendant’s credibility, McLaughlin

does not claim that her position was not eliminated. Instead she maint ains that nothing in her

personnel record supports her dismissal. While this may be the case, this Court need not address that

issue; the only issue before us is whether McLaughlin p roved that her position was n ot eliminated

because two other employees could perform her job in addition to their own with fewer errors. She

di d not do so.7

McLaughlin further attempted to prove pretext by providing two oral statements exhibit ing

discriminatory animus. In order to prove pretext in this manner, the statement must: (1) demonstrate

a discriminatory motivation, and (2) be made by a person “primarily responsible for the adverse

emplo yment action or by a person with influence or leverage over the formal decisionmaker.”

Laxton

, 333. F.3d at 583. Even assuming a discriminatory animus, the two statements in question

were made by persons with no aut horit y or power to either fire McLaughlin or force another to

terminate McLaughlin ’s employment. Because she has not met the second prong of the test,

McLaughlin fails to prove pretext by oral statements.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.