Michael Ray v. UPS, et al

Filing

UNPUBLISHED OPINION FILED. [13-60771 Affirmed ] Judge: CES , Judge: FPB , Judge: PRO Mandate pull date is 12/11/2014 [13-60771]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60771

United States Court of Appeals
Fifth Circuit

FILED
MICHAEL DALE RAY,

November 20, 2014

Plaintiff - Appellant

Lyle W. Cayce
Clerk

v.
UNITED PARCEL SERVICE; BOB PEDULLA,
Defendants - Appellees

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:09-CV-95
Before STEWART, Chief Judge, and BENAVIDES and OWEN, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:*
Plaintiff-Appellant Michael Dale Ray (“Ray”) appeals the district court’s
grant of summary judgment in favor of Defendants-Appellees United Parcel
Service (“UPS”) and Bob Pedulla (“Pedulla”) on his retaliation claim under the
Family and Medical Leave Act of 1993 (“FMLA”). 1 We AFFIRM.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

1

29 U.S.C. § 2601 (2012).

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I.

FACTUAL BACKGROUND
Beginning in 2003, Ray worked for UPS as one of two managers of the

Jackson division, overseeing “Hub, Air and Feeder” operations. Ray served
alongside Donald Gentry (“Gentry”), the other Jackson division manager
overseeing “Package” operations. For purposes of salary, UPS internally
classified Ray as Grade 18 in his role as division manager.
During the next two years and prior to any FMLA leave by Ray, it is
undisputed that Ray’s superiors noted deficiencies in his performance. In May
of 2004, Ray’s then-district manager Romaine Seguin (“Seguin”) met with Ray
and placed him on a Performance Improvement Plan (“PIP”), delineating five
areas where failure to improve would lead to unfavorable consequences. In
January of 2005, Seguin’s replacement as Ray’s district manager, Curtis Price,
reiterated that the PIP-delineated deficiencies were ongoing and Ray
acknowledged in a contemporaneous memorandum of the meeting that “[Ray’s]
hub was ranked the worst hub each month of [the] last year in the region
because of [his] day sort.” 2 In his deposition, Ray acknowledged he had taken
no action to remedy those deficiencies.
On February 10, 2006, Ray suffered a heart attack. At the urging of UPS,
Ray contacted Broadspire, UPS’s disability plan administrator, which
approved Ray for short-term disability leave until his return to work on May
22, 2006. At the same time, UPS advised Ray to provide a separate notice of
FMLA leave to an internal UPS division; the parties dispute whether Ray
provided this notice to UPS.
Thereafter, Ray suffered additional health problems, and the Jackson
division experienced several negative events. In October of 2006, Ray’s division
underwent a “Keter audit,” a delivery and safety audit performed by an outside

2

ROA.359.

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consulting group. Ray’s division failed to meet the passing score of 95%, scoring
below 90% on two of the four audit metrics. As a result of the audit, a Safety
Process Improvement Plan was implemented to address the deficiencies. The
following November, Ray again experienced heart-related health issues,
resulting in his admission to the hospital and a period of short-term disability
leave. As before, UPS advised Ray to provide a separate FMLA-leave notice,
and the parties again dispute whether Ray provided that notice. Ray returned
to work on December 18, 2006.
The majority of events giving rise to this action occurred throughout
2007. In March of 2007, district manager Pedulla met with Ray and other
leadership of the Jackson division, at which time Ray was assigned oversight
of the Saturday-evening air operations. In April, the Jackson hub experienced
hundreds of service failures in the Saturday-evening air operations. UPS
defines a “service failure” as any time a package is not processed and moved
according to schedule, such that a single truckload of packages can result in
hundreds of individual service failures. Though Ray asserts in his brief that
two other managers were responsible for this failure, Ray acknowledged his
responsibility in his deposition testimony. Ray further acknowledged that
there were no previous service failures in his division.
Shortly thereafter, Ray met with two district-level superiors Karl
Gramm

(“Gramm”),

the

operations

manager,

and

Roman

Williams

(“Williams”), the human resources manager. As documented in Ray’s
memorandum of the meeting, the meeting’s purpose was to develop a PIP
regarding

two

areas

requiring

“consistent

improvement,”

and

eight

improvement needs in Ray’s “leadership skills.” 3 Additionally, it was at this
meeting that Ray experienced the first of the two adverse employment

3

ROA.362-63.

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decisions he alleges, as Gramm and Williams informed Ray that he would not
receive his employee stock options for 2007, or any raise in 2008
(“compensation withholding”). At the same time, Gentry was placed on a 90day probation and told he would lose his stock options and raise (though
Gentry was ultimately allowed to keep both options and raise).
On August 17, 2007, the Jackson hub failed another Keter audit, and did
not score 95% on any of the four measures. Unlike previous Keter audit
failures, this failure resulted in a conference call with region-level UPS
employees, including Carolyn Walsh (“Walsh”), the vice president of the West
Region. At that meeting, Ray recalls Walsh stating that UPS “would not
tolerate anymore [sic] scores of this nature.” 4 In response to the Keter audit
failure and in anticipation of a Keter re-audit, UPS provided a team to work
with Ray from late August to early October to identify potential problems and
make corrections. At the end of the review period, the team leader noted by
memo numerous issues which Ray had failed to address, despite prior
identification in the Keter audit and discussion with Ray.
On August 24, 2007, and as described by Ray’s contemporaneous
memorandum, a combination of a “failure to communicate and lack of . . . follow
up” by the full-time management team resulted in 612 service failures at the
Jackson hub. 5 In January of 2008, the Jackson hub failed a Keter re-audit,
receiving a score of 78.6%. Shortly thereafter, Gramm and Williams met with
Ray, at which time Ray was demoted from Grade 18 to Grade 16 due to a lack
of leadership. 6

ROA.323.
ROA.365.
6 ROA.371.
4
5

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Ray initiated this action in February of 2009, asserting claims under
Title VII of the Civil Rights Act of 1964 7 and the FMLA; although Ray asserted
his Title-VII claim at the summary-judgment stage below, he has affirmatively
abandoned this claim on appeal by conceding that he “did not establish pretext
on his race discrimination claims.” 8 Upon motion by UPS, the magistrate judge
issued its report and recommendation granting summary judgment in UPS’s
favor, which was adopted by the district court over Ray’s objections to the
report. 9 Ray now appeals the district court’s order.
II.

STANDARD OF REVIEW
This Court reviews orders granting summary judgment de novo, and

applies the same standard as the district court below. 10 A summary judgment
analysis considers evidence from the entire record, and views that evidence in
the light most favorable to the non-movant. 11 Accordingly, a court must refrain
from determinations of credibility and evidentiary weight, but rather give
credence to all evidence favoring the non-movant; conversely, regarding
evidence that favors the movant, we will give credence only to evidence that is
uncontradicted and unimpeachable, but disregard evidence the jury is not
required to believe. 12 So viewing the evidence, we will find summary judgment
is warranted where two conditions are satisfied: first, the movant adduces
evidence presenting no genuine issues of material fact and, second, “the
movant is entitled to judgment as a matter of law.” 13 Regarding the first
criteria, a fact is “material” if its resolution could affect the outcome of the

42 U.S.C. § 2000e-2 (2012).
Appellant’s Br. 38.
9 ROA.1841-61, 1909. By the same order, the district court granted Ray’s motion to
dismiss defendant Pedulla under Federal Rule of Civil Procedure 41. ROA.1909.
10 Ion v. Chevron, 731 F.3d 379, 389 (5th Cir. 2013).
11 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
12 See Ion, 731 F.3d at 389.
13 Fed. R. Civ. P. 56; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
7
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action, 14 and a “genuine” issue is present “only if a reasonable jury could return
a verdict for the nonmoving party.” 15 Ultimately, “[o]nly disputes over facts
that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” 16
III.

ANALYSIS
a. Analytical Framework of FMLA Retaliation Claims
The FMLA prohibits employer interference with the exercise of rights

provided under the act, or employer discrimination against any individual for
opposing a practice made unlawful under the act. 17 As interpreted by the
Department of Labor, this prohibition extends to employer retaliation for the
exercise of FMLA rights. 18 Among the rights provided by the FMLA, employees
are entitled to “reasonable leave for medical reasons.” 19
Ray asserts the actions of UPS were motivated by retaliatory animus for
his taking medical leave under the FMLA. Our approach to such claims is twofold, first asking whether the plaintiff has presented direct evidence of
retaliation and, if not, applying the familiar McDonnell Douglas, burdenshifting framework. 20
b. Direct Evidence of Retaliation
As before the lower court, Ray asserts that summary judgment is
forestalled by direct evidence of discrimination. We disagree, however, and

14

2007).

Burrell v. Dr. Pepper/Seven UP Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir.

Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
17 See 29 U.S.C. § 2615 (2012).
18 See 29 C.F.R. § 825.220(c) (2014).
19 29 U.S.C. § 2601(b)(2) (2014); see 29 U.S.C. § 2612(a)(1) (2014).
20 Richardson v. Monitronics, Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005) (citing Hunt
v. Rapides Healthcare Sys., Inc., 277 F.3d 757, 768 (5th Cir. 2001) (explaining framework
initially set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
15
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hold that the district court did not err in finding insufficient direct evidence to
prevent summary judgment.
As direct evidence of discrimination, Ray primarily relies upon several
comments by various UPS employees. As set out in Brown v. CSC Logic, Inc.
and applied by subsequent cases, in order for comments to constitute direct
evidence, they must be “1) related [to the protected class of persons of which
the plaintiff is a member]; 2) proximate in time to the [complained-of adverse
employment decision]; 3) made by an individual with authority over the
employment decision at issue; and 4) related to the employment decision at
issue.” 21 Comments failing to satisfy these requirements are merely “stray
remarks” that are independently insufficient to prevent summary judgment. 22
Additionally, in order to constitute direct evidence at this stage of the analysis,
the comments must be such that, “if believed, would prove the existence of a
fact (i.e., unlawful discrimination) without any inferences or presumptions.” 23
Ray asserts various comments, accurately set forth by the magistrate
judge, as either direct or indirect evidence of retaliation. 24 Although we discuss
the sufficiency of these comments as indirect evidence of pretext below, at this
stage of the analysis it suffices to note that the comments require inference to
support retaliation, and therefore do not constitute direct evidence.
For example, Ray proffers statements that upper-level management
made negative comments regarding the medical leave of other UPS employees,

Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir. 2000)
(alteration in original) (quoting Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996)
(finding, in an age discrimination case, that age-related remarks “may serve as sufficient
evidence of age discrimination if the offered comments are: 1) age related; 2) proximate in
time to the terminations; 3) made by an individual with authority over the employment
decision at issue; and 4) related to the employment decision at issue”)).
22 Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010).
23 Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993).
24 See ROA.1850.
21

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as well as an article and generalized statement about negative perceptions of
medical leave at UPS. To constitute evidence, however, these comments would
at least require an inference of a general retaliatory culture at UPS, and a
further inference that this general attitude was specifically applied to Ray.
Even where the proffered statements are made directly to or about Ray,
such as a supervisor’s statement that Ray should not come back to work until
he was well, 25 these comments also require inference to demonstrate
retaliatory animus. As evidence of these more-direct comments, Ray highlights
the affidavit of Cheryl Byrd (“Byrd”), which the district court found did not
constitute direct evidence of animus or retaliation against Ray. 26 We agree. In
her affidavit, Byrd attests to hearing Lee Sardella (“Sardella”), a district
human resources manager, stating that Ray’s “condition had improved enough
for him to return to work” and that “he had undergone surgery before he came
to Texas and returned [to work] immediately.” 27 Byrd’s affidavit described
Sardella’s attitude as “very hostile,” and how Sardella expressed frustration
both with a manager requesting FMLA and with Ray’s wife not allowing UPS
personnel to speak with Ray. 28
Sardella’s comments satisfy the first CSC Logic requirement, since they
specifically implicate Ray as a manager requesting FMLA leave. Regarding the
temporal-proximity requirement, it is true that, as noted by UPS, Ray does not
specify the time that Sardella made the comments—an omission that, absent
the prohibited inference in Ray’s favor, would prevent satisfaction of this
requirement as to either of the adverse employment events. Even inferring

ROA.718-19.
ROA.1852.
27 ROA.1746.
28 Id.
25
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that the comments occurred during Ray’s FMLA leave, 29 the comments would
precede both the compensation withholding and demotion by at least four
months or thirteen months, respectively. As a result, Sardella’s comments
would be too remote in time to serve as direct evidence regarding the demotion,
and on the outer edge of sufficient proximity to the compensation
withholding. 30 Continuing the analysis, then, only as to the compensation
withholding, the comments fail to satisfy the third CSC Logic requirement
since Ray does not assert Sardella’s involvement in the compensation
withholding. As with the other comments, therefore, Sardella’s statements are
insufficient under CSC Logic, and do not prevent summary judgment as
evidence of retaliatory animus.
In sum, we hold that Ray did not provide direct evidence that UPS
disciplined Ray in retaliation for exercising his right to medical leave under
the FMLA. Accordingly, the district court did not err in so finding and in
proceeding to the mixed-motive analysis.
c. Mixed-Motive Analysis
Absent direct evidence, the McDonnell-Douglas analysis then proceeds
through three, burden-shifting steps. First, the employee must make a prima
facie showing of FMLA retaliation. 31 Second, upon the employee’s satisfaction
of the first requirement, “the employer must articulate a legitimate, non-

The affidavit makes such an inference possible, since Sardella’s remarks about the
inability of UPS personnel to speak with Ray during his FMLA leave is recorded in the
present tense. See ROA.1746.
30 Compare Palasota v. Haggar Clothing Co., 342 F.3d 569, 576-77 (5th Cir. 2003)
(recognizing memo made within two months of termination as direct evidence under CSC
Logic), with Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001) (holding
comment made “nearly a year” prior to adverse decision was stray remark under CSC Logic),
and Brown v. CSC Logic, Inc., 82 F.3d 651, 656 (5th Cir. 1996) (finding that comment made
sixteen months prior to adverse decision was stray remark in ADEA claim).
31 Richardson v. Monitronics, Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005).
29

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discriminatory reason for the adverse employment action.” 32 Third, if the
employer makes a sufficient showing, “the employee must offer sufficient
evidence to create a genuine issue of fact” that the employer’s proffered reason
is merely a pretext for retaliation or, “although true, is but one of the reasons
for its conduct, another of which was discrimination.” 33 Finally, if the employee
satisfies the third-step showing, the employer may only prevail by proving it
would have taken the adverse employment action regardless of the
discriminatory motivation; this showing “is effectively that of proving an
affirmative defense.” 34
i. Ray’s Prima Facie Showing
In order for Ray to meet his initial burden of showing an FMLA prima
facie case, he must show the following elements: (1) he was protected under
the FMLA, (2) he suffered an adverse employment action, and (3) the adverse
action was taken because he sought protection under the FMLA. 35 On appeal,
it is undisputed that Ray was protected under the FMLA. At the summaryjudgment stage below, UPS challenged Ray’s satisfaction of this requirement
by arguing that Ray provided insufficient notice of FMLA leave. 36 However,
the district court found that Ray provided notice sufficient to invoke the
protection of the FMLA. 37 UPS does not re-assert its insufficient-notice
challenge on appeal, and it is therefore waived. 38 Regardless, we have held that
the FMLA provides protection where notice “is sufficient to reasonably apprise
[the employer] of the employee’s request to take time off for a serious health

Id.
Id.
34 Id. (quoting Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005)).
35 See Ion v. Chevron, 731 F.3d 379, 390 (5th Cir. 2013) (citations omitted).
36 See ROA.401-02.
37 See ROA.1848-49.
38 See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
32
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condition.” 39 As it is undisputed that UPS was aware both of Ray’s medical
condition and of his request for short-term disability benefits, Ray provided
notice sufficient to invoke the protections of the FMLA, satisfying the first
element.
Regarding the second element, it is similarly undisputed that Ray
suffered adverse employment actions, first in the compensation withholding,
and second in his demotion.
Turning to the third element, UPS challenges Ray’s prima facie showing
of causation for the first time on appeal. Since UPS did not assert any
argument against prima facie causation before the district court, UPS has
waived this challenge on appeal. UPS acknowledges that the lower court did
not specifically discuss causation in its analysis, but attempts to justify our
consideration of its causation challenge by relying on the principle that we may
affirm summary judgment “for any reason supported by the record.” 40 Equally
well-settled, however, is the principle that the scope of appellate review on a
summary judgment order is limited to matters that the parties presented to
the district court, such that the district court has an opportunity to rule on the
challenge. 41 Though the district court necessarily and generally addressed
Ray’s causation showing as part of the later stages of the mixed-motive
analysis, a point advanced by UPS, the district court made no such ruling at
the prima facie stage because UPS did not make prima facie causation an issue,
an omission which was expressly noted by the district court. 42 Of UPS’s
arguments on appeal, only UPS’s arguments against comparators were
presented to the district court, but then only as rebuttal to Ray’s pretext
Manuel v. Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995).
Appellees’ Br. 18 n.7 (citing Lifecare Hosps., Inc. v. Health Plus of La., Inc., 418 F.3d
436, 439 (5th Cir. 2005).
41 See Keelan v. Majesco Software, Inc., 407 F.3d 332, 339-40 (5th Cir. 2005).
42 See ROA.1853, n.7.
39
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showing. 43 Based on the principle that a party “must press and not merely
intimate the argument during the proceedings before the district court,” 44 we
will not re-cast these elsewhere-asserted, comparator references as arguments
against prima facie causation. Accordingly, UPS has waived any argument on
appeal that Ray cannot establish prima facie causation.
ii. UPS’s Legitimate, Non-Retaliatory Reason
Proceeding to the second step of the mixed-motive analysis, UPS bears
the burden of showing a legitimate, non-retaliatory reason for taking the
adverse employment actions. 45 UPS asserts its satisfaction of this burden
based on evidence that Ray demonstrated various leadership issues, as
exhibited by performance measures preceding his first FMLA leave period, and
continuing until well after his second FMLA leave ended. In finding that UPS
satisfied its burden, the magistrate judge found that UPS provided evidence
that Ray was subject to adverse actions “because he repeatedly demonstrated
a lack of leadership through his work performance.” 46
UPS distinguishes between the performance issues justifying the two
adverse events at issue. Regarding the compensation withholding, UPS asserts
this action was warranted by the combination of Ray’s pre-leave performance
issues, the post-leave delivery failures in April of 2007, and the identification
of other problems requiring Ray’s consistent improvement. 47 As to the
demotion, UPS explains this action by reference to: the April-2007 delivery
failures; the failed August-2007 Keter audit; the August-2007 delivery failures;

See ROA.1403.
Keelan, 407 F.3d at 340.
45 Richardson v. Monitronics, Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005).
46 ROA.1853.
47 Appellees’ Br. 22.
43
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Ray’s failure to implement prescribed remedial steps; and the failed January2008 Keter re-audit, which immediately preceded his demotion. 48
Ray contests this finding by asserting that no evidence supported Ray’s
demotion for performance issues beyond a single letter, challenging the
admissibility of that letter as not in an affidavit form, and challenging the
probative value of the letter as not discussing performance issues pre-dating
Ray’s FMLA leave. 49 Ample other evidence, however, provided sufficient
support for the finding and we need reach no conclusion on the merits of Ray’s
arguments. As noted by the magistrate judge in its summary of Ray’s
performance failures, UPS’s proffered reason was supported by multiple
evidentiary sources, including the deposition testimony of Ray himself. 50 Since
this finding is otherwise undisputed, UPS has met its burden of showing Ray’s
performance issues as a legitimate, non-retaliatory reason for taking the
adverse employment actions.
iii. Ray’s Pretext Showing
Proceeding, then, to the third stage of the analysis, the burden again
shifts to Ray to present evidence creating a fact issue that UPS’s proffered
reason either is a mere pretext for retaliation and “false or unworthy of
credence” (pretext alternative), or, although true, is but one of the motivations
for the adverse action, another of which was retaliation (mixed-motives
alternative). 51 Ray’s arguments center on exposing UPS’s reason as pretext, an
inquiry which focuses on whether UPS’s explanation was the true basis of its

Id.
Appellant’s Br. 45-47.
50 ROA.323, 1381-82, 1842-45, 1853-54.
51 Autry v. Fort Bend Indep. Sch. Dist., 704 F.3d 344, 347-48 (5th Cir. 2013) (quoting
Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011)).
48
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action, “the real reason,” rather than on the accuracy of the explanation. 52
Accordingly, in the summary-judgment context, Ray’s burden requires
production of evidence that raises a genuine issue of material fact that
retaliation, not Ray’s performance, was the real reason for the adverse
employment events. In addressing this burden, Ray’s arguments center on (1)
evidence of his good performance, (2) the temporal relationship between the
events at issue, (3) disparate treatment, and (4) comments by UPS employees.
We consider these arguments seriatim. Ray presents further arguments, as he
did before the district court, in a conclusory manner and without citation to
supporting evidence; due to those insufficiencies, we refuse to consider those
arguments.
1. Evidence of Good Performance
Ray first asserts that UPS’s proffered, performance-based reason is false
in light of evidence that his performance was good, and that it did not justify
the adverse employment actions. 53 Though this argument was not directly
presented to the magistrate judge, it was considered by the district court as an
oblique objection to the report and recommendation. For the reasons
enumerated below, however, Ray’s good-performance evidence is insufficient
to meet his burden.
“Our job as a reviewing court conducting a pretext analysis is not to
engage in second-guessing of an employer’s business decisions.” 54 In Haverda
v. Hays County, we explained that a showing that an employer’s belief was
incorrect “merely implies that an employer may have made a mistake in
deciding to take action against an employee,” and that “even an incorrect belief

Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011) (quoting Laxton v.
Gap Inc., 333 F.3d 572, 579 (5th Cir. 2003).
53 See Appellant’s Br. 48-50.
54 LeMaire v. La. Dep’t of Transp. and Dev., 480 F.3d 383, 391 (5th Cir. 2007).
52

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that an employee’s performance is inadequate qualifies as a legitimate reason”
to take an adverse employment action. 55 Consistent with the requirement that
an employee’s evidence must support an inference of the employer’s
“retaliatory motive, not just an incorrect belief,” 56 we have held that an
employee’s mere challenge to the underlying facts of an employer’s decision, or
the employer’s assessment of those facts, are insufficient to create a fact issue
of pretext. 57
As we noted previously, UPS asserts that its lack of confidence in Ray’s
leadership primarily resulted from events occurring in 2007 and early 2008.
The majority of Ray’s evidentiary proffer, however, does not implicate the
relevant time period or UPS’s asserted bases. As an example of evidence that
pre-dates the events cited by UPS, Ray cites to two awards he received for
aspects of his performance in 2004, three years prior. 58 Additionally, Ray cites
to a planned transfer to Denver and his assignment to Saturday-evening air
operations as evidence of UPS’s confidence in his performance. 59 Even making
an inference in Ray’s favor that the planned transfer and assignment indicate
his good performance prior to these events, these events are not probative of
the period cited by UPS; indeed, the service failures in the Saturday-evening

723 F.3d 586, 596 n.1 (5th Cir. 2013).
Id.
57 LeMaire, 480 F.3d at 391 (5th Cir. 2007) (holding that “[s]imply disputing the
underlying facts of an employer’s decision is not sufficient to create an issue of pretext” (citing
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) (holding that “[m]erely
disputing [the employer’s] assessment of [the employee’s] performance will not create an
issue of fact”))).
58 UPS proffers evidence that Ray was cited for performance issues as early as May of
2004. However, UPS relies upon this history to demonstrate that its history of disciplining
Ray preceded his FMLA leave, rather than to establish the events precipitating the adverse
employment decisions. Therefore, even assuming that the awards challenge UPS’s
characterization of Ray’s performance during that time, the awards neither challenge UPS’s
non-retaliatory reason nor establish retaliatory animus since these events occurred prior to
Ray’s FMLA leave.
59 See Appellant’s Br. 19, 49.
55
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operations support UPS’s proffered reason only because those failures occurred
after Ray was assigned responsibility for those operations.
Ray additionally proffers his scores on corporate scorecards, called QPRs,
in which Ray’s scores “were generally in the middle of the pack.” 60 Still, these
scores fail to show Ray’s good performance in a way that challenges UPS’s
asserted reason or demonstrates retaliatory animus. First, the evidence does
not describe QPRs as providing a universal measure of performance, with the
supporting testimony cited by Ray describing QPRs as just “one portion” of the
UPS evaluation. 61 Further, Ray does not produce evidence that the QPRs
referenced or incorporated the confidence-diminishing events proffered by
UPS, i.e. Ray’s PIP-satisfaction failure, the two service failures in 2007, or the
audit and re-audit failures in 2007 and 2008, respectively.
Only through Ray’s argument that the Keter re-audit was improperly
scored does Ray directly attack any of the bases proffered by UPS. As he did
before the district court, Ray asserts that the proper score should have been
significantly higher such that it would not support his demotion. Even
crediting the evidence upon which Ray relies, this argument merely challenges
the underlying facts of UPS’s decision and, since “even an incorrect belief that
an employee’s performance is inadequate qualifies as a legitimate reason,” 62 it
is insufficient to create a fact issue that UPS’s reason was pretext.
2. Temporal Proximity
Ray next argues that UPS’s reason is unsupported by temporal
proximity. Specifically, Ray argues that, if the time periods between his FMLA
leave and the adverse employment decisions are too long to indicate retaliatory
animus, then his disciplinary history preceding his FMLA leave should not

See id. at 49.
ROA.591.
62 Haverda v. Hays Cnty., 723 F.3d 586, 596 n.1 (5th Cir. 2013).
60
61

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support UPS’s non-retaliatory reason. 63 The district court below found that
this argument lacks merit, 64 and we agree.
It is true that temporal proximity, or a lack thereof, may be probative of
a retaliatory connection between an adverse employment action and the taking
of FMLA leave. 65 In this respect, Ray’s pretext argument is not supported by
the lengthy periods between Ray’s FMLA leave and the two adverse
employment decisions, respectively four and thirteen months later. It is also
undisputed that the precipitating events cited by UPS were highly proximate
to the adverse employment decisions. Ray’s division experienced a major,
service-failure incident immediately prior to the compensation withholding,
and a failed Keter re-audit immediately prior to his demotion. As a result, we
agree with the district court that temporal proximity supports, rather than
vitiates, UPS’s non-retaliatory reason.
Ray also argues that the close temporal proximity of UPS’s discipline of
three employees who took FMLA leave is evidence of retaliatory intent
sufficient to establish pretext, specifically citing to UPS’s discipline of Ray and
Gentry in January of 2008, as well as the transfer of Paul Smith, another
branch manager, to a remote division after his return from FMLA leave. 66
Ray’s argument, however, is premised upon viewing these three employees as
a collective unit, an approach which does not accommodate the individualized
consideration that our jurisprudence requires for inferring retaliatory intent
by comparing or contrasting treatment of different employees. 67 Highlighting

Appellant’s Br. 50-51.
See ROA.1854-55.
65 Mauder v. Metro. Transit Auth. of Harris Cnty., Tex., 446 F.3d 574, 583 (5th Cir.
63
64

2006).

See Appellant’s Br. 34-35, 44.
See Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259-60 (5th Cir. 2009) (discussing
degree of similarity required for inferring intent from disparate treatment).
66
67

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this concern, Ray, Gentry, and Smith differ in critical respects. Regarding the
temporal relationship between FMLA leave and the adverse action, UPS’s
January-2008 discipline occurred immediately after Gentry’s return from
FMLA leave, but fully thirteen months after Ray’s return from FMLA leave;
as to Smith, Ray addresses neither the timing of Smith’s discipline nor its
temporal relationship to his FMLA leave. Similarly, the employees present
different or unknown disciplinary histories, as Ray’s past PIPs stand in
contrast to Gentry’s lack thereof, and the record is silent as to Smith’s history.
Lastly, the employees differ even as to the substantive adverse employment
actions, i.e. Ray’s demotion, Gentry’s compensation withholding, and Smith’s
transfer. Therefore, notwithstanding the temporal confluence of the adverse
actions against Gentry and Ray, we reject inferring retaliatory intent from
disparate employees demonstrating such divergent characteristics.
3. Evidence of Disparate Treatment
In attempting to make his pretext showing, Ray further relies on the
concept of disparate treatment, by which pretext may be shown “where an
employer treats one employee more harshly than other similarly situated
employees for nearly identical conduct.” 68 Ray broadly argues that UPS’s
justification for the adverse action is pretextual because, though no division
manager had passed a Keter audit in the previous four years, only Ray and
Gentry suffered as a result of their failures. 69 UPS responds, as it did in its
summary-judgment reply below, that the basis of Ray’s demotion was not a
single instance of audit failure, but instead was a series of failures comprising
“a specific delivery failure incident in April [of] 2007, and that he was demoted
because of a series of specific problems in late 2007, culminating in the re-audit

Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011) (internal quotation
marks omitted).
69 Appellant’s Br. 27.
68

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failure in January 2008.” 70 Ray’s comparison does not account for the series of
events precipitating the compensation withholding and demotion, a point
illustrated by the employees he proffers for comparison.
Under our precedent, the employees being compared will evidence
disparate treatment where they present “nearly identical” circumstances, with
the practical effect that comparators must share the same job or
responsibilities, the same supervisor, the same conduct leading to the adverse
decisions, and essentially comparable violation histories. 71 At the same time,
we have clarified that whether comparators demonstrate sufficient similitude
does not require disciplinary history to evince the same labels, but instead
“may turn on the ‘comparable seriousness’ of the offenses for which discipline
was meted out and not necessarily on how a company codes an infraction.” 72
Ray first cites to Gentry as a comparator, asserting that differences in
UPS’s disciplinary responses evidence retaliatory intent. After the first service
failure in April of 2007, at which point only Ray had taken FMLA leave, Ray
was disciplined with the compensation withholding while Gentry was placed
on a 90-day probation. 73 After the Keter re-audit failure in 2008, when both
Ray and Gentry had taken FMLA leave, Ray was demoted and Gentry was
subjected to compensation withholding. It is true that, as a potential
comparator, Gentry shared significant similarities with Ray, including
supervisors and the event leading to the discipline. Nevertheless, the district

Appellees’ Br. 34.
Lee, 574 F.3d at 260.
72 Id. at 261 (quoting McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11
(1976)).
73 As noted above, though Gentry was threatened with compensation withholding,
that threat never materialized.
70
71

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court found that Gentry was not a sufficiently similar comparator due to
differences in his and Ray’s disciplinary histories. 74 We agree.
At the time of the 2007 service failure, Ray had already been subjected
to two previous PIPs for performance issues, while Gentry had no such history.
Indeed, the disciplinary progression from PIP-probation, to compensation
withholding, to demotion is consistent with UPS’s treatment of both Ray and
Gentry. Reinforcing the consistency of this progression, Ray’s argument is
further undercut by his memorandum following the August-2007 service
failure, to which Ray responded by withholding recommendations for raises
and stock options for the supervisors involved, and also recommending that
future failures by those individuals would result in “possible job status
change.” 75 The comparison with Gentry does not satisfy Ray’s burden.
Beyond his argument involving Gentry, Ray asserts that the following
employees did not take FMLA leave and did not receive adverse employment
actions: (1) Jim Lewis, Ray’s replacement as division manager, who has had
service errors; (2) Jeanne Lawrence, a package division manager with service
errors; (3) Williams, the human resources director during the failed audits; (4)
Dan Kulceski, a New Orleans division manager who failed audits; (5) Derrick
Craft, a division manager who violated UPS’s workers’ compensation policy;
(6) Gramm, who committed an integrity violation; (7) Willie Walton, a New
Orleans division manager with service failures; and (8) John Wright, a plant
engineer during a failed audit. 76
As the district court correctly concluded, these purported comparators
are not sufficiently similar to establish pretext. Several of the would-be
comparators, such as Williams, Gramm, and Wright, did not occupy the same

ROA.1855-56.
ROA.366.
76 Appellant’s Br. 28-33.
74
75

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position as Ray at the time of the adverse employment actions. Among those
who did occupy substantially similar positions as division managers, such as
Lawrence, Kulceski, Craft, and Walton, none are characterized by the same
disciplinary history of repeated audit, re-audit, and service failures. Although
some of these managers had isolated service or audit failures that roughly
correlate to Ray’s failures, none demonstrated the combination thereof which
collectively represented Ray’s “leadership issues.” In sum, Ray has failed to
provide evidence of disparate treatment sufficient to prevent summary
judgment.
4. Comments as Pretext Evidence
As evidence of pretext, Ray relies upon the same comments he cited for
his direct-evidence showing. For slightly different reasons, however, these
comments are insufficient to show pretext. As we noted above, comments
offered as direct evidence are evaluated under the four-part test described in
CSC Logic. After the Supreme Court’s admonition in Reeves v. Sanderson
Plumbing Products, Inc., 77 however, we have evaluated comments in the
pretext stage under either the CSC Logic standard set out above, or the morelenient, two-part standard in Russell v. McKinney Hospital Venture, 78 by which
a plaintiff need only show (1) discriminatory animus (2) on the part of a person
that is either primarily responsible for the challenged employment action or by
a person with influence or leverage over the relevant decisionmaker. 79 Under
decisions by which we are bound, we have recognized that Russell often guides
evaluation of comments presented as circumstantial evidence “alongside other

530 U.S. 133 (2000).
235 F.3d 219, 226 (5th Cir. 2000).
79 See Laxton v. Gap Inc., 333 F.3d 572, 583 (5th Cir. 2003) (citing Russell, 235 F.3d
at 225).
77
78

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alleged discriminatory conduct,” 80 but we have also held that CSC Logic
remains applicable “at least where the plaintiff has failed to produce
substantial evidence of pretext.” 81
Since we have considered the remainder of Ray’s evidentiary proffer and
found it insufficient, Ray has failed to produce substantial evidence of pretext
outside of the comments, and we therefore apply the CSC Logic standard. To
review, under CSC Logic, a comment is probative of retaliatory intent where
it is “1) related [to the protected class of persons of which the plaintiff is a
member]; 2) proximate in time to the [complained-of adverse employment
decision]; 3) made by an individual with authority over the employment
decision at issue; and 4) related to the employment decision at issue.” 82
Whereas the necessity of inference previously ended our analysis of these
comments as direct evidence, at the pretext stage the analysis continues to
apply the CSC Logic requirements. Upon such consideration, these comments
do not constitute evidence establishing pretext and preventing summary
judgment.
Many of the comments cited by Ray do not relate to the adverse
employment decisions at issue, because they relate to other individuals, such
as an alleged comment by Pedulla questioning the legitimacy of another
employee’s basis for FMLA leave, or because they are too vague to warrant an

Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012); see also Laxton, 333
F.3d at 583 n.4 (noting that CSC Logic is applicable to comments submitted as direct
evidence).
81 Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001); see id. at
404-05 (noting that “the Supreme Court faulted [this Court’s] decision in Reeves not for
applying the stray remarks doctrine, but for failing to accord proper weight to the plaintiff’s
substantial evidence of pretext” (citation omitted)); see also Rubinstein v. Adm’rs of Tulane
Educ. Fund, 218 F.3d 392, 400-01 (5th Cir. 2000) (a post-Reeves opinion applying CSC Logic
where plaintiff had only presented comments as evidence of discriminatory intent).
82 Rubinstein, 218 F.3d at 401 (alteration in original) (quoting Brown v. CSC Logic,
Inc., 82 F.3d 651, 655 (5th Cir. 1996)).
80

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inference of a relationship, such as an alleged comment that another employee
wanted Ray’s job. Other comments, such as Keith Graham’s warning to Ray
that he would be under a lot of pressure upon his return from FMLA leave, are
allegedly made by individuals with no authority over the employment decision
at issue. As previously discussed, the comments recounted in the Byrd affidavit
fail to meet the CSC Logic standard. We hold that the comments proffered by
Ray fail to establish that UPS’s non-retaliatory reason was pretext.
iv. Adverse Decision Despite FMLA Leave
Even were we to proceed as though Ray had made his pretext showing,
we agree with the district court below that UPS has nevertheless presented
sufficient evidence to satisfy its showing that it would have taken the adverse
employment actions regardless of Ray’s exercising his rights under the
FMLA. 83 UPS presented evidence that it initiated performance-improvement
measures prior to Ray’s FMLA leave. Additional undisputed evidence,
including Ray’s own memorandums, reflects that the progression of those
disciplinary

measures

was

responsive

and

temporally

proximate

to

performance failures. This evidence strongly supports UPS’s performancebased reason, and Ray has provided no evidence allowing a reasonable
inference that UPS would not have taken this action absent Ray’s FMLA leave.
IV.

CONCLUSION
For the above stated reasons, we AFFIRM the judgment of the district

court.

83

See Richardson v. Monitronics, Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005).

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