Perkins v. Child Care Associates
Memorandum Opinion and Order: The court ORDERS that defendant's motion 22 for summary judgment be, and is hereby, granted, and that all claims and causes of action asserted by plaintiff against defendant be, and are hereby, dismissed. (Ordered by Judge John McBryde on 8/22/2017) (edm)
. U.S. DISTRICT COiJRT
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT 0\.JRT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
CLERK,' r:;. DISTRICT COUKl'
By _ _ _-;;-:::--;-----
~~·" . - .
• AUG 2 2 2017 ... 1
CHILD CARE ASSOCIATES,
Came on for consideration the motion of defendant, Child
Care Associates, for summary judgment. Plaintiff, Detra Perkins,
has filed a response and defendant has filed a reply and a
document titled "Defendant Child Care Associates' Objections to
Plaintiff's Summary Judgment Evidence." Having considered the
motion, the response, the reply, defendant's objections, the
entire summary judgment record, and applicable authorities, the
court concludes that the motion should be granted.
Plaintiff initiated this action by the filing of an original
petition in the 48th Judicial District Court of Tarrant County,
Texas. On July 22, 2016, defendant removed the action to this
1. The court remanded certain of plaintiff's claims
by order and final judgment signed September 16, 2016. Doc. 12;
Doc. 13. After repleading, plaintiff asserted the following
claims and causes of action against defendant:
under the Family and Medical Leave Act
under the FMLA;
(3) violation of
261.110 of the Texas Family
Code; and (4) violation of the Rehabilitation Act of 1973. Doc.
The Summary Judgment Motion
Defendant moved for summary judgment as to each of
plaintiff's claims. First, defendant contends that both of
plaintiff's FMLA claims are barred by limitations. On the merits,
defendant asserts that plaintiff's FMLA interference claim fails
as a matter of law because plaintiff has no evidence that
defendant interfered with, denied, or restrained plaintiff's use
of FMLA leave. Even if plaintiff established interference,
defendant maintains that plaintiff cannot prove she was
prejudiced because defendant approved all of plaintiff's FMLA
requests. Second, defendant argues that plaintiff cannot
establish a prima facie case as to her FMLA retaliation claim.
Specifically, defendant contends that plaintiff cannot show a
'The "Doc. "references are to the number of the item on the docket in this action.
causal link between her FMLA protected activity and her
termination. Defendant notes that plaintiff was fired eight
months after her last FMLA leave period ended, and that plaintiff
cannot provide any other evidence that she was terminated because
of her taking FMLA leave.
Third, defendant asserts that plaintiff's Texas Family Code
claim fails as a matter of law because Gloria Serrano
("Serrano"), the person who made the decision to terminate
plaintiff, was not aware that plaintiff reported child abuse
until after plaintiff was terminated. Rather, defendant argues
that Serrano's decision was based solely on allegations made by
Zayko Ramirez ("Ramirez"), a coworker of plaintiff, and the
serious nature of such allegations. Doc. 24 at 021,
Fourth, defendant contends that plaintiff cannot establish a
prima facie case as to plaintiff's Rehabilitation Act claim.
Defendant asserts that plaintiff does not have evidence that she
is disabled, that defendant regarded her as disabled, or that she
has a record of impairment that substantially limits a major life
activity. Defendant further asserts that plaintiff cannot prove
that defendant terminated her because of her alleged disability,
or that it failed to provide plaintiff with reasonable
Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure states
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute of material fact and the movant is
entitled to judgment as a matter of law. The summary judgment
movant bears the initial burden of showing that there is no
genuine dispute of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323, 325 (1986). The movant can carry this burden by
pointing out the absence of evidence supporting one or more
essential elements of the nonmovant's claim,
"since a complete
failure of proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts immaterial." Id.
Once the movant has carried its burden under Rule 56(a), the
nonmovant must identify specific evidence in the record and
articulate the precise manner that creates a genuine dispute of
material fact. Id. at 324; see also Fed. R. Civ. P. 56(c)
party asserting that a fact
. is genuinely disputed must
support the assertion by .
citing to particular parts of
materials in the record .
."). A fact is material if it might
affect the outcome of the case under the governing law. Anderson
v. Liberty Lobby Inc., 477 U.S. 242, 248
(1986). A dispute about
a material fact is genuine if the evidence is such that a
rational fact finder could resolve the dispute in favor of either
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law. Celotex Corp., 477 U.S. at 323. If the record taken as a
whole could not lead a rational trier of fact to find for the
nonmovant, there is no genuine dispute for trial and summary
judgment is appropriate. Matsushita Elec. Indus. Co. V. Zenith
Radio Corp., 475 U.S. 574, 597; see also Boeing Co. v. Shipman,
411 F.2d 365, 374-75 (5th Cir. 1969)
standard to be applied in determining whether the court should
enter judgment on motions for directed verdict or for judgment
notwithstanding the verdict).
The following is an overview of evidence pertinent to the
motion for summary judgment that is undisputed in the summary
Plaintiff began working for defendant at the Ellis Child
Development Center (the "Center") as a teacher's assistant in
2007, Doc. 24 at 003, and was promoted to the position of teacher
id. at 007. Between August 2011 and October 2013,
plaintiff requested FMLA leave on several occasions. See id. at
008-016. Defendant approved each of plaintiff's requests and
permitted her to return to work at the end of each leave period.
On June 26, 2014, Serrano, defendant's "Head Start
Director,• received a written statement from Ramirez alleging
that plaintiff had inappropriate discussions with coworker Sheila
("McNeal") in front of children, grabbed and shook a child
making him cry, and encouraged children to fight each other. Doc.
24 at 018-19. On June 27, 2014, Laura Elizondo ("Elizondo"), a
licensing representative for the Texas Department of Family and
Protective Services, visited the Center to conduct an
investigation. Id. at 021, , 8. Plaintiff was terminated on the
same day as Elizondo's visit. Id. at ,
The FMLA Interference Claim
To prevail on an FMLA interference claim, plaintiff must
prove that defendant "interfered with, restrained, or denied
[plaintiff's] exercise or attempt to exercise FMLA rights, and
the violation prejudiced [plaintiff] .• Acker v. General Motors,
853 F.3d 784, 788
(5th Cir. 2017)
(quoting Bryant v. Tex.
Dep't of Aging & Disability Servs., 781 F. 3d 764, 770
2015)); see 29 U.S.C.
2615(a)(1). To be entitled to a right to
take leave under the FMLA,
"an employee must comply with the
employer's usual and customary notice and procedural requirements
for requesting leave, absent unusual circumstances." Id.
"Where an employee does not comply with
the employer's usual notice and procedural requirements, and no
unusual circumstances justify the failure to comply, FMLAprotected leave may be delayed or denied." Id.
Plaintiff pleaded that defendant interfered with plaintiff's
FMLA rights by "threat[ening] to terminate her employment, giving
her cold shoulder treatment, issuing her a written warning and
terminating her before she could take additional time off for
breast reconstructive surgery .
." Doc. 16 at 9-10,
Defendant addressed each of plaintiff's arguments in its motion
for summary judgment. However, plaintiff's response only
addresses her argument that she was terminated before she could
take future FMLA leave. See Doc. 40 at 8-9. The court considers
the arguments not raised in plaintiff's response to be abandoned.
In subsection A of plaintiff's response, plaintiff contends
that she told Johnson of her plan to take future FMLA leave, and
that "[t]he evidence of Ms. Johnson's involvement, hostility
toward leave and knowledge of [plaintiff's] intent to use FMLA
leave in the future is sufficient to establish interference under
a eat's paw analysis." Doc. 40 at 9. However, such assertions are
not supported by citations to the summary judgment record. In the
"Facts• section of plaintiff's response, plaintiff cited to her
own unsworn declaration, which states that plaintiff •told Ms.
. that in the future
[she] would need another leave
to finish reconstruction to the outside of [her] breasts." Doc.
37 at 3,
, 15. Defendant objected to such statement on the ground
that it was conclusory. See Doc. 42 at 9, , 16.
Even if the court were to consider plaintiff's statement,
her FMLA interference claim nevertheless fails as a matter of
law. Plaintiff adduced no evidence to show that she requested
future FMLA leave in compliance with defendant's usual and
customary notice and procedural requirements for requesting
leave.' Moreover, plaintiff has not identified any unusual
circumstances that would justify her apparent failure to comply
with defendant's notice requirements. Defendant is not required
to be clairvoyant. Lanier v. Univ. of Tex. Sw. Med. Ctr., 527 F.
App'x 312, 316-17 (5th Cir. 2013)
(quoting Satterfield v. Wal-
Mart Stores, Inc., 135 F.3d 973, 980
(5th Cir. 1998)).
Accordingly, defendant is entitled to summary judgment on
plaintiff's FMLA interference claim.
'The evidence shows that in the past plaintiff requested leave by submitting paperwork to human
resources, Doc. 24 at 036-37, and then received approval of such leave by mail, id. at 009, 037.
The FMLA Retaliation Claim
The FMLA prohibits retaliation by an employer based on an
employee's use of FMLA leave. 29 U.S.C.
2615(a) (2). Retaliation
claims under the FMLA are analyzed using the McDonnell Douglas
burden-shifting framework. Wheat v. Florida Par. Juvenile Justice
Comm'n, 811 F.3d 702, 705
(5th Cir. 2016)
(citing Chaffin v. John
H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999)). This framework
requires plaintiff to prove a prima facie case of retaliation by
( 1) she was protected under the FMLA,
( 2) she
suffered an adverse employment action, and (3) the adverse action
was taken because she sought protection under the FMLA. Ion v.
Chevron USA, Inc., 731 F.3d 379, 390 (5th Cir. 2013)
Mauder v. Metro Transit. Auth. of Harris Cnty., Tex., 446 F.3d
(5th Cir. 2006)). The third element requires a •causal
link" between the FMLA-protected activity and the adverse action.
Acker v. General Motors, L.L.C.,
853 F.3d 784, 790
(quoting Richardson v. Monitronics Int'l,
Inc., 434 F.3d
(5th Cir. 2005). "When evaluating whether the adverse
employment action was causally related to the FMLA protection,
the court shall consider the 'temporal proximity' between the
FMLA leave, and the termination." Mauder, 446 F.3d at 583.
Plaintiff also can establish a causal link when the evidence
demonstrates that "the employer's decision to terminate was based
in part on knowledge of the employee's protected activity."
Medina v. Ramsey Steel Co.,
Inc., 238 F.3d 674,
(quoting Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122
(5th Cir. 1998)).
Plaintiff was terminated eight months after her last FMLA
leave period ended. The Fifth Circuit has found shorter time
periods to be insufficient to establish causality based on
temporal proximity alone.
Board, 464 F. App'x 395, 401-02
Amsel v. Tex. Water Dev.
(5th Cir. 2012)
(two months); Raggs v. Miss. Power & Light Co., 278 F.3d 463,
(5th Cir. 2002)
(five months); cf. Evans v. City of Hous.,
246 F.3d 344, 354 (5th Cir. 2001)
("We note that a time of up to
four months has been found sufficient to satisfy the causal
connection for summary judgment purposes.")
In her response, plaintiff claims that she is not relying on
temporal proximity alone, but that she has produced other
evidence to establish causality. Plaintiff states, without citing
to the summary judgment record, that "[t]here is evidence in the
record that Ms. Serrano was updated weekly about [plaintiff's]
September 28, to October 28, 2013 FMLA leave." Doc. 40 at 9.
Having searched the summary judgment record on its own accord,
the court has been unable to find evidence that supports such
statement. The remainder of plaintiff's "evidence" as to her FMLA
retaliation claim consists of allegations of pretext that, except
for one exception, are unsupported by citations to the summary
judgment record. Plaintiff has failed to establish temporal
proximity or provide other evidence of a causal link between
plaintiff's termination and her use of FMLA leave. As a result,
plaintiff has failed to establish the third element of her prima
facie case. Accordingly, her FMLA retaliation claim fails as a
matter of law.
The Texas Family Code Claim
As applicable here, section 261.110 of the Texas Family Code
prohibits an employer from terminating an employee who in good
faith reports child abuse or neglect. See Tex. Fam. Code.
261.110(b). There is a rebuttable presumption of retaliation if
the employee was terminated before the 61st day after the date on
which the employee made a good faith report.
However, an employer may raise an affirmative defense that the
employer would have terminated the employee based solely on
information, observation, or evidence that is not related to the
fact that the employee reported child abuse or neglect.
261.110 (k) .
Plaintiff alleges that she made a good faith report of child
abuse or neglect to Johnson on or about May 24, 2014. See Doc 16
at 5, ,, 44-48; Doc. 37 at 5, ,, 24-27. Plaintiff was terminated
on June 27, 2014. Because of the proximity between plaintiff's
report and her termination, defendant concedes that a rebuttable
presumption of retaliation exists under§ 261.110(i). However,
defendant rebuts the presumption by adducing evidence that
plaintiff's termination was based solely on information,
observation or evidence unrelated to plaintiff's report.
Defendant cites to the declaration of Serrano, which states that
her decision to terminate plaintiff was based nsolely on the
allegations made by Ms. Ramirez and the serious nature of those
allegations.• Doc. 24 at 021, ,
9. Serrano's declaration also
states that she did not become aware of plaintiff's report of
child abuse until after plaintiff's termination. See id. at , 10.
Assuming arguendo that plaintiff made a valid report on May
24, 2014, plaintiff has not cited, and the court has not found,
any evidence in the summary judgment record contradicting
defendant's evidence that Serrano did not have knowledge of such
report before plaintiff's termination. As a result, plaintiff has
failed to raise a genuine issue of material fact as to
defendant's rebuttal evidence, and defendant is entitled to
summary judgment on plaintiff's claim under the Texas Family
The Rehabilitation Act of 1973 Claim
The Rehabilitation Act of 1973 prohibits employment
discrimination against qualified individuals with disabilities.
Kemp v. Holder, 610 F. 3d 231, 234
(5th Cir. 2010). Violations of
the Rehabilitation Act are judged under the same legal standards
as the Americans with Disabilities Act. Id. Absent direct
evidence of discrimination, plaintiff must show that:
has a disability;
[s)he was qualified for the job; and (3)
[s)he was subject to an adverse employment decision on account of
h [er) disability." De laval v. Ptech Drilling Tubulars, L. L. C. ,
824 F.3d 476, 479 (5th Cir. 2016)
(internal citations omitted).
"After establishing a prima facie case, the burden shifts to the
employer to 'articulate a legitimate, nondiscriminatory reason
the adverse employment action." Id. Then, the employee must
present evidence that the articulated reason is pretextual. Id.
"[D)iscrimination need not be the sole reason for the adverse
employment decision . . . so long as it actually plays a role in
the employer's decision making process and has a determinative
influence on the outcome." Id. at 479-80
Defendant contends that plaintiff has not established the
first and third elements of her prima facie case. Specifically,
defendant argues that plaintiff has not proved that she has a
disability under the ADA. And, defendant claims that plaintiff
has no evidence that Serrano was aware that plaintiff had breast
cancer and/or even considered her breast cancer in her decision
to terminate her employment. Doc. 41 at 8.
Plaintiff pleads that she is disabled due to two, seemingly
independent grounds: breast cancer and injuries sustained in an
automobile accident. Doc. 16 at 8-9, ,, 72-75. In her response,
plaintiff addresses her Rehabilitation Act claim only twice. In
the section titled "Argument Summary," plaintiff states, without
citing evidence, that
[p]laintiff's cancer and the injuries to her rotator
cuff, upper back and shoulder establish that she has an
actual, record of disability and perceived disability.
Plaintiff's extreme fatigue, pain, sleeplessness, lack
of strength, inability to raise her arm above her head
and other impairments caused by the cancer and injuries
also establish that she has a disability as the term is
used by the Rehabilitation Act.
Doc. 40 at 2. Later, in subsection C titled "Rehabilitation Act
claim," plaintiff argues in full that "[plaintiff] has cancer
which in its active state affects cell growth. App. 51-53, Ex.
[Plaintiff's] testimony supports that she has a disability.
App. 21, Ex. 1, Perkins, p. 21." Id. at 10. The first citation is
to a two-page pathology report from 2012, which states under the
section titled "Final Pathologic Diagnosis," "Right breast mass
at 7 o'clock, ultrasound core biopsy Infiltrating duct cell
carcinoma, grade 1, see comment." Doc. 37 at 52. The second
citation, from best the court can tell,
is to plaintiff's unsworn
declaration, which states "[o]n October 28, 2013, all my
restrictions were removed so that I could return to work. From
the day of the car wreck to the present day,
I am frequently
unable to raise my arm above my head, carry a five-pound bag of
groceries or sleep." Id. at 4,
Assuming arguendo that plaintiff's impairments qualify as a
disability under the ADA, the court agrees with defendant that
plaintiff has failed to establish that she was terminated on
account of her disability. Plaintiff's response wholly fails to
address defendant's argument that plaintiff has no evidence that
Serrano was aware that plaintiff had breast cancer and/or even
considered her breast cancer in her decision to terminate her
employment. Having failed to raise a genuine issue of material
fact as to the causality element of plaintiff's prima facie case,
defendant is entitled to summary judgment on plaintiff's
Rehabilitation Act claim.
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted, and that all claims and
causes of action asserted by plaintiff against defendant be, and
are hereby, dismissed.
SIGNED August 22,
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