Brenda Cothran v. John Potter

Filing

UNPUBLISHED OPINION FILED. [10-10396 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 12/09/2010 [10-10396]

Brenda Cothran v. John Potter

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Case: 10-10396

Document: 00511265498

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Date Filed: 10/18/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 18, 2010 N o . 10-10396 S u m m a r y Calendar Lyle W. Cayce Clerk

B R E N D A L. COTHRAN, P la in t if f ­ A p p e lla n t v. J O H N POTTER, Postmaster General, Defendant­Appellee

A p p e a l from the United States District Court for the Northern District of Texas U S D C No. 3:08-CV-785

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* B r e n d a Cothran appeals the district court's grant of summary judgment o n her Title VII retaliation claim in favor of her employer, John Potter, P o s t m a s t e r General. We AFFIRM. FACTS AND PROCEEDINGS Cothran, a black woman, was employed by United States Postal Service ("U S P S " ) where she processed on-the-job injury claims. In 2006, Cothran filed

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5T H CIR. R. 47.5.4.

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Date Filed: 10/18/2010

a complaint with USPS's Equal Employment Office, alleging that her s u p e r v is o r , Angie Fuentes, who is Hispanic, discriminated against Cothran on t h e basis of her race. Cothran alleges that Fuentes subsequently retaliated a g a in s t her by giving her a negative performance evaluation in 2006. Cothran a ls o alleges that Fuentes retaliated against her by denying her requests for le a v e under the Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq. ("F M L A " ), and her requests for annual leave on two other occasions. STANDARD OF REVIEW " W e review the district court's grant of summary judgment de novo." Fahim v. Marriot Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008). Summary judgment is appropriate only "if the pleadings, the discovery and d is c lo s u r e materials on file, and any affidavits show that there is no genuine is s u e as to any material fact and that the movant is entitled to judgment as a m a t t e r of law." FED. R. CIV. P. 56(c). D IS C U S S IO N T o establish a prima facie case of retaliation under Title VII a plaintiff m u s t show: (1) that the plaintiff engaged in activity protected by Title VII; (2) t h a t an adverse employment action occurred; and (3) that a causal link existed b e t w e e n the protected activity and the adverse action. Evans v. City of Houston, 2 4 6 F.3d 344, 352 (5th Cir. 2001). After the plaintiff establishes a prima facie c a s e , the burden shifts to the employer to show a legitimate, nonretaliatory r e a s o n for the adverse employment action. McCoy v. City of Shreveport, 492 F .3 d 551, 556 (5th Cir. 2007). The employer's burden is one of production, not p e r s u a s io n , and does not involve a credibility assessment. Id. The burden then s h ifts back to the plaintiff to show either: "(1) that the defendant's reason is not t r u e , but is instead a pretext for [retaliation] (pretext alternative); or (2) that t h e defendant's reason, while true, is only one of the reasons for its conduct, and 2

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another `motivating factor' is the plaintiff's protected [activity] (mixed-motive[s] a lt e r n a tiv e )." Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (th ir d alteration in original); see also Smith v. Xerox Corp., 602 F.3d 320, 326 (5 t h Cir. 2010). Under the pretext alternative, the plaintiff "bears the ultimate b u r d e n of proving that the employer's proffered reason is not true but instead is a pretext for the real . . . retaliatory purpose. To carry this burden, the p la in t iff must rebut each . . . nonretaliatory reason articulated by the e m p lo y e r ." McCoy, 492 F.3d at 556. Under the mixed-motive theory, if the p la in t iff shows that the plaintiff's protected activity was a motivating factor, t h e n the burden shifts to the employer to show that the adverse employment d e c is io n would have been made regardless of the retaliatory animus. See R a c h id , 376 F.3d at 312. T h e district court found that Cothran engaged in a protected activity w h e n she filed a complaint with the USPS's Equal Employment Office and that s h e suffered adverse employment actions in the form of a negative performance r e v ie w and denial of her request for leave under the FMLA. But the district c o u r t also found that Cothran failed to make a prima facie case of retaliation b e c a u s e she failed to show a causal connection between her protected activity a n d the adverse employment actions. To establish a causal connection, Cothran r e lie s on the close timing of her protected activity and the adverse employment a c t io n s . Two days after Fuentes learned of Cothran's protected activity, Fuentes g a v e Cothran an unfavorable performance review and Fuentes denied Cothran's F M L A leave request approximately two months later. The combination of t e m p o r a l proximity and knowledge of a protected activity may be sufficient to s a tis fy a plaintiff's prima facie burden for a retaliation claim. See, e.g., Jones v. R o b in s o n Prop. Group, L.P., 427 F.3d 987, 995 (5th Cir. 2005); Evans, 246 F.3d a t 354. 3

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However, even if Cothran could make a prima facie case of retaliation, her r e t a l i a tio n claim fails because she has not demonstrated pretext or mixed m o t iv e . Potter offered a legitimate, nonretaliatory reason for Cothran's

n e g a t iv e performance score on the periodic rolls management category:1 C o t h r a n failed to meet individual performance objectives established by her p rev iou s supervisor. Moreover, another employee with an identical performance r e q u ir e m e n t, who had not complained of discrimination, received the same score o n the periodic rolls category. Potter has also explained that the temporal p r o x im it y between Cothran's complaint and her performance review was c o in c id e n ta l. All performance reviews were originally due on November 24, 2006 b u t because of various delays, Fuentes did not submit those reviews until N o v e m b e r 29, 2006. Cothran's bare assertion that Potter's explanation is false d o e s not raise a genuine issue of material fact with respect to pretext. P o t t e r also provided a legitimate, nonretaliatory reason for the denial of C o t h r a n 's FMLA leave request: Fuentes denied her leave request because (1) C o t h r a n was on unauthorized, unscheduled leave-without-pay status at the t im e ; (2) Cothran failed to submit her request prior to the requested leave p e r io d ; and (3) the FMLA coordinator told Fuentes that Cothran was not e lig ib le for FMLA leave. Cothran alleges, citing only her own affidavit, that the in d iv id u a l whom Fuentes consulted was not a FMLA coordinator. Cothran has n o t disputed that she was in an unauthorized, unscheduled leave-without-pay s t a tu s at the time or that she did not submit her request prior to the requested le a v e period. Cothran's self-serving allegation does not create a genuine issue o f material fact as to pretext. Nor has Cothran identified any evidence of mixed

In 2006, Cothran was evaluated in four categories. On appeal, Cothran alleges only that her score on the periodic rolls management category was retaliatory.

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motive with respect to either of these adverse employment actions. Even assuming (1) that the denial of Cothran's annual leave requests on t w o additional occasions are adverse employment actions and (2) that a causal c o n n e c tio n existed with Cothran's protected activity--findings that the district c o u r t did not make--Cothran has not demonstrated pretext. On one occasion, C o t h r a n arrived two hours late to work and subsequently submitted a request f o r annual leave for those two hours. Potter avers that Fuentes denied that r e q u e s t because Fuentes had already rejected Cothran's request for annual le a v e during that period due to Cothran's heavy workload and backlog and b e c a u s e Cothran had an extensive history of absences. Although Cothran c o n t e n d s that Fuentes has granted similar requests by other employees, C o t h r a n has failed to offer evidence to rebut Potter's reasons. Fuentes also denied Cothran's request for annual leave from March 26, 2 0 0 7 through March 30, 2007. Potter states that Fuentes denied that request b e c a u s e the department had a policy that only two employees could take leave a t the same time and two employees had previously been approved for leave d u r in g that period. Cothran has failed to identify evidence that creates an issue o f material fact as to whether Potter's legitimate, nonretaliatory explanations a r e pretextual. Nor could a reasonable jury logically infer that her complaint of d is c r im in a tio n was a motivating factor in Fuentes' denials of annual leave. Cothran has not carried her burden with respect to pretext or motivation and, t h e r e fo r e , her retaliation claim fails. A F F IR M E D .

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