Abdulbaki v. Regent Care Center of San Antonio II, Limited Partnership

Filing 50

REPORT AND RECOMMENDATIONS re 18 Motion for Summary Judgment, filed by Regent Care Center of San Antonio II, Limited Partnership, 16 Motion to Quash, Motion for Protective Order filed by Regent Management Services, Limited Partnership, 35 Motio n to Strike, filed by Regent Care Center of San Antonio II, Limited Partnership, 11 Motion to Compel filed by Aiman Abdulbaki, 49 Motion in Limine filed by Regent Care Center of San Antonio II, Limited Partnership, 44 Motion to Continue filed b y Regent Care Center of San Antonio II, Limited Partnership, 17 Motion for Protective Order filed by Regent Care Center of San Antonio II, Limited Partnership, 19 Motion to exclude, Motion for Sanctions filed by Regent Care Center of San Antonio II, Limited Partnership, 36 Motion for Leave to File Document, filed by Aiman Abdulbaki. Signed by Judge Nancy Stein Nowak. (mailed on 3/28/2012 by certified mail, or sent via electronic transmittal)(rg)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

AIMAN ABDULBAKI,
Plaintiff,
v.
REGENT CARE CENTER OF SAN
ANTONIO II, LIMITED PARTNERSHIP
d/b/a REGENT CARE CENTER OF
OAKWELL FARMS,
Defendant.

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CIVIL ACTION NO.
SA-11-CV-00211 OLG (NN)

REPORT AND RECOMMENDATION
TO:

Honorable Orlando Garcia
United States District Judge
I. Introduction
The matter before the court is the motion for summary judgment brought by Defendant

Regent Care Center of San Antonio II, d/b/a Regent Care Center of Oakwell Farms (hereafter
“Defendant”). Defendant filed the motion on January 13, 2012.1 On January 18, 2012,
Defendant filed its motion to amend its motion for summary judgment which was granted on
February 16, 2012.2 Plaintiff Aiman Abdulbaki (hereafter “Plaintiff”) filed his response to the
motion for summary judgment on February 3, 2012,3 as well as a response to the amended

1

Docket Entry 18.

2

Docket Entry 21. Defendant’s supplement to its motion for summary judgment is Docket Entry 33.

3

Docket Entry 32.

1

summary judgment on February 23, 2012.4
After considering the motion for summary judgment and supplement to the motion for
summary judgment,5 Plaintiff’s responses to those motions,6 Defendant’s replies,7 the entirety of
the record in this matter, and the applicable case, statutory and regulatory law, I recommend
granting the motion for summary judgment (Docket Entries 18 and 32).
I have jurisdiction to enter this Report and Recommendation under 28 U.S.C. § 636(b)
and the District Court’s Order referring all pretrial matters in this proceeding to me for
disposition by order, or to aid their disposition by recommendation where my authority as a
Magistrate Judge is statutorily constrained.8
II.

Federal Jurisdiction

This court has jurisdiction pursuant to 28 U.S.C. § 13319and 29 U.S.C. §§ 2601, et seq.10
III. Background of the Case
Plaintiff Aiman Abdulbaki is Muslim and a Syrian-American.11 He was hired as
Defendant’s Director of Rehabilitation for its Oakwell Farms facility in March of 2009.12
4

Docket Entry 38.

5

Docket Entries 18 and 33.

6

Docket Entries 32 and 38.

7

Docket Entries 34 and 43.

8

Docket Entry 22.

9

28 U.S.C. § 1331 grants federal district courts original jurisdiction over civil actions arising under the
Constitution, laws, or treaties of the United States.
10

28 U.S.C. §§ 2601, et seq. is the Family and Medical Leave Act (“FMLA”).

11

Docket Entry 32, Exhibit 1 (Deposition of Aiman Abdulbaki), at 67; Exhibit 2 (Affidavit of Aiman
Abdulbaki), ¶ 2.
12

Docket Entry 32, Exhibit 2, ¶ 5.

2

Plaintiff’s first supervisor, Trudy Venette, allowed Plaintiff to work a flexible schedule pursuant
to which he arrived at the facility around 9 a.m. and worked in the building until 1 or 2 p.m.13
Later in the day, he would log onto the facility’s computer system to work remotely from home.
Plaintiff contends the schedule was mandated by the demands of his job, including the need to
finalize his employees’ schedules and input the day’s departmental data after the close of
business. Plaintiff stated in his deposition that he worked as a physical therapist in his wife’s
medical practice in the afternoons.14 When Ms. Venette resigned on September 30, 2009,15 Mr.
Roberto “Bob” Martinez became the interim administrator at the facility.16
In a team meeting on October 20 or 27, 2009, Mr. Martinez stated that some of the
residents at the facility “complained that the staff were making terroristic threats against each
other and I don’t believe that because Aiman was not working last night.”17 Plaintiff felt
humiliated by the comment and believed it to be a derogatory reference to his religion and
national origin.18 Plaintiff mentioned that he was Syrian and Muslim to Mr. Martinez earlier in
the 2009 year.19

13

Docket Entry 32, Exhibit 1, at 103; Exhibit 2, ¶ 8.

14

Docket Entry 32, Exhibit 1, at 128. See Docket Entry 18, Exhibit C (Deposition of Aiman Abdulbaki), at
126; Exhibit E (Deposition of Dr. Marianne Pinkston), at 77.
15

Docket Entry 18, Exhibit B (Affidavit of Sue Chiles), at 2.

16

Docket Entry 32, Exhibit 2, ¶ 10; Exhibit 4 (Deposition of Roberto Martinez), at 38.

17

Docket Entry 32, Exhibit 1, at 63; Exhibit 2, ¶ 12.

18

Docket Entry 32, Exhibit 2, ¶ 13.

19

Docket Entry 32, Exhibit 1, at 74; Exhibit 2, ¶ 14. There is disputed evidence in the record regarding Mr.
Martinez’s knowledge of Plaintiff’s religion. Although Plaintiff stated in his affidavit that Mr. Martinez knew
Plaintiff was Muslim (Docket Entry 32, Exhibit 2, ¶ 14), Plaintiff testified in his deposition that Mr. Martinez was
unaware of Plaintiff’s religion. Docket Entry 18, Exhibit C, at 66. For the purpose of assessing the motion for
summary judgment, the court will accept Plaintiff’s allegation as true that Mr. Martinez knew Plaintiff was Muslim.

3

In January 2010, Mr. Martinez met with Plaintiff and expressed his concerns about
Plaintiff’s flexible work schedule.20 He told Plaintiff that he wanted to track Plaintiff’s time and
asked Plaintiff to clock in and clock out of the facility.21 Mr. Martinez also asked Plaintiff to
start working in the building from 9 a.m. to 6 p.m. every week day.22 Since he was a salaried,
management-level employee, Plaintiff believed the demand for him to clock in and clock out was
both illegal (from a labor law perspective) and discriminatory on the basis of his national origin
and religion.23 Although there were additional conversations (as discussed below) about the need
for Plaintiff to be present in the facility from 9 a.m. to 6 p.m. and to clock in and out, Plaintiff
never started those employment protocols while working for Defendant.24
Plaintiff had a second meeting with Mr. Martinez in the middle of January 2010.25
During that meeting, Mr. Martinez asked about Plaintiff’s failure to maintain a regular caseload
of physical therapy patients.26 Mr. Martinez also reiterated his desire for Plaintiff to work a
regular schedule of 9 a.m. to 6 p.m.27
About this same time, Mr. Martinez had another informal discussion with Plaintiff about

20

Docket Entry 32, Exhibit 1, at 88, 98.

21

Docket Entry 32, Exhibit 1, at 88, 90, 98.

22

Docket Entry 32, Exhibit 1, at 94, 96, 115, 120, 121.

23

Docket Entry 32, Exhibit 1, at 101-102.

24

Docket Entry 32, Exhibit 1, at 96-98, 188; Docket Entry 18, Exhibit C (Deposition of Aiman Abdulbaki),

25

Docket Entry 32, Exhibit 1, at 100, 189.

26

Docket Entry 32, Exhibit 1, at 100.

27

Id.

at 97.

4

the number of patients under Plaintiff’s care who were enrolled in Medicare Part B.28 At the end
of that conversation, Mr. Martinez told Plaintiff he had hired a new administrator for the facility
who was going to “take care” of Plaintiff.29
Plaintiff exchanged a series of emails with Mr. Martinez on or about January 22, 2010,
which indicated Plaintiff contemplated resigning his position.30 In those emails, which were also
carbon-copied to Carol Ostermeyer the Chief Financial Officer of Regent Management Services,
Ltd., Mr. Martinez stated his intention to devise a way to track the hours Plaintiff worked.31 He
wrote, “Your current schedule may be acceptable as long as some provision of proof is exhibited
of time spent….”32
On February 16, 2010, Plaintiff called Sue Chiles, the Human Resources Manager for
Regent Management Services,33 to discuss Mr. Martinez’s desire that Plaintiff work from 8 a.m.
to 5 p.m. in the building.34 Ms. Chiles explained that the customary practice was to have the
Rehabilitation Director work a regular schedule.35 She also told Plaintiff that Mr. Martinez had
the authority to make changes to the schedule Plaintiff established with Ms. Venette.36 There is

28

Docket Entry 32, Exhibit 1, at 124-125.

29

Id.

30

Docket Entry 32, Exhibit 6. The subject line of the email is “resignation.” See also Docket Entry 32,
Exhibit 2, ¶ 18; Docket Entry 18, Exhibit G (Affidavit of Carol Ostermeyer)..
31

Docket Entry 32, Exhibit 6.

32

Id.

33

Docket Entry 18, Exhibit B.

34

Docket Entry 18, Exhibit B-2.

35

Id.

36

Id.

5

no evidence that Plaintiff complained of discrimination based on his national origin or religion in
that conversation.37
Ms. Maria Viray was hired as the new administrator on April 1, 2011.38 Shortly after
becoming his supervisor, Ms. Viray met with Plaintiff and asked him to work in the building
from 8:30 a.m. to 5:30 p.m. and to clock in and out so she would know when he was in the
facility.39 When Plaintiff asked if other employees were required to maintain the same schedule,
Ms. Viray told him they were not without further explanation.40 Ms. Viray also directed Plaintiff
to cease using his personal blackberry phone, which he had configured on his own to receive
work emails, for business purposes.41 Plaintiff felt singled out by this request since he believed
that all of Defendant’s management-level employees used a blackberry for work purposes.42
At some time after Mr. Martinez’s comment about terroristic threats, Ms. Ostermeyer was
visiting Plaintiff’s facility. When he saw her outside the door of the administration office, he
inquired about a new, potential regional director of rehabilitation position.43 In the course of this
conversation, Plaintiff said, “did you know that Bob called me a terrorist in the meeting?”44 Ms.

37

Id.

38

Docket Entry 32, Exhibit 2, ¶ 25.

39

Docket Entry 32, Exhibit 1, at 115, 194-195.

40

Docket Entry 32, Exhibit 2, at ¶ 25.

41

Docket Entry 32, Exhibit 1, at 195.

42

Docket Entry 32, Exhibit 1, at 196.

43

Docket Entry, 32, Exhibit 1, at 204.

44

Docket Entry 32, Exhibit 1, at 204.

6

Ostermeyer offered no response.45 Plaintiff never again complained about Mr. Martinez to Ms.
Ostermeyer.46
On April 9, 2010, Plaintiff’s diverticulosis flared up causing him severe pain.47 After
Plaintiff saw his primary care physician, who is also his wife, he called Ms. Viray on April 13 or
14 to tell her he would be absent from work.48 During that conversation, he asked about the need
to take FMLA leave.49 Ms. Viray directed Plaintiff to call Jessica Garza in the Human Resources
department. Ms. Garza told Plaintiff to provide a note from his doctor but that he need not take
FMLA leave if he would only be absent for a few days.50
On April 21, 2010, Plaintiff’s physician faxed a note that stated Plaintiff was under
medical care and would “be able to return to work/school on 4/23/2010.”51 Plaintiff asserts that
he did not see the note before it was faxed and believed that it said he would be out of work
through Friday, April 23.52 When Plaintiff failed to appear for work or call in his absence on the
morning of April 23, Ms. Viray terminated Plaintiff on the basis that Plaintiff committed gross
misconduct pursuant to Defendant’s No Call, No Show Policy.53

45

Id.

46

Docket Entry 32, Exhibit 1, at 205.

47

Docket Entry 32, Exhibit 1, at 38, 55; Exhibit 2, ¶ 28.

48

Docket Entry 32, Exhibit 1, at 38.

49

Docket Entry 32, Exhibit 1, at 50-51.

50

Docket Entry 32, Exhibit 1, at 52, 219.

51

Docket Entry 32, Exhibit 1, at 34, 221.

52

Docket Entry 32, Exhibit 2, ¶ 31.

53

Docket Entry 32, Exhibit 12 (Deposition of Maria Viray), at 55. See also Docket Entry 32, Exhibit 13
(Excerpt from Defendant’s Employee Handbook).

7

On Monday, April 26, Plaintiff felt badly as he drove to work. He left Ms. Viray a
voicemail that he was returning to his doctor.54 During the 10 a.m. morning meeting, Ms. Viray
announced that Plaintiff had resigned on Friday, April 23.55 After that meeting, a co-worker sent
Plaintiff a text message to tell him he would be missed.56 Plaintiff then telephoned Ms. Garza to
ask if she had faxed him the FMLA paperwork.57 At 3:38 pm on Monday, April 26, Plaintiff
faxed in a request for FMLA paperwork to Ms. Garza.58 On April 27 at 4:12 p.m., Plaintiff’s
physician faxed in a revised note stating that Plaintiff had been under her care from April 19 to
the 26 and would return to work on May 17, 2010.59 Later that day, Plaintiff received a certified
letter and disciplinary form informing him of his termination.60
Plaintiff filed his charge of discrimination with the Equal Employment Opportunity
Commission on June 15, 2010.61 In the charge, Plaintiff alleged that he was the victim of
discrimination based on his national origin and religion from November 10, 2009 until April 23,
2010.62 Plaintiff enumerated the acts of discrimination as: (1) being “subjected to a ‘terrorist’
slur;” (2) being the only Director required to clock in and clock out; and (3) being terminated.

54

Docket Entry 32, Exhibit 1, at 222-223, Exhibit 2,¶ 32.

55

Docket Entry 32, Exhibit 1, at 224.

56

Docket Entry 32, Exhibit 1, at 224; Exhibit 2, ¶ 33.

57

Docket Entry 32, Exhibit 1, at 224.

58

Docket Entry 18, Exhibit A-4.

59

Docket Entry 18, Exhibit A-5; Docket Entry 32, Exhibit 7.

60

Docket Entry 32, Exhibit 2, ¶ 35; Exhibit 10.

61

Docket Entry 32, Exhibit 8.

62

Id.

8

The EEOC issued Plaintiff a dismissal and right to sue notice on September 28, 2010.63 Plaintiff
also received a Notice of Right to File a Civil Action from the Texas Workforce Commission
Civil Rights Division on December 13, 2010.64
Plaintiff filed his Original Petition, Cause Number 2011CI-02307, in the 407th Judicial
District of Bexar County, Texas on February 11, 2011.65 Defendant then removed the action on
March 16, 2011, asserting that this court has federal question jurisdiction because Plaintiff seeks
relief in part for violations of the Family and Medical Leave Act (“FMLA”).66 Defendant moves
for summary judgment on all Plaintiff’s causes of action.
IV. Summary Judgment Standard
Federal Rule of Civil Procedure 56 allows a party to move for summary judgment on
some or all causes of action in a complaint when there are no genuine, disputed issues of material
fact and that party is entitled to judgment as a matter of law.67 A fact is a “material fact” if it
“might affect the outcome of the suit under the governing law….”68 A dispute concerning a
material fact is “‘genuine’….if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”69 If reasonable fact finders could resolve a factual issue in favor of

63

Docket Entry 32, Exhibit 9; Docket Entry 18, Exhibit A-6.

64

Docket Entry 18, Exhibit A-6.

65

Plaintiff’s Original Petition is attached as an exhibit to Defendant’s Notice of Removal, Docket Entry 1.

66

Docket Entry 1.

67

Fed.R.Civ.P. 56(a). And See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

68

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Thomas v. LTV Corp., 39 F.3d 611, 616 (5th

Cir. 1994).
69

Anderson, 477 U.S. at 248.

9

either party, summary judgment should not be granted.70 The moving party “always bears the
initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of the ‘the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine
issue of material fact.”71 Once the movant has satisfied his initial burden, the burden then shifts
to the nonmoving party to “present affirmative evidence in order to defeat” the motion.72 The
nonmoving party “need only present evidence from which a jury might return a verdict in his
favor. If he does so, there is a genuine issue of fact that requires a trial.”73
V. Analysis
Plaintiff seeks damages based upon the following causes of action: (1) National
Origin/Religious Discrimination; (2) Retaliation; (3) Harassment and Hostile Work
Environment; and (4) Violation of the Family and Medical Leave Act.74 Defendant asserts there
are no genuine, disputed issues of material fact as to any of the causes of action presented in
Plaintiff’s complaint such that summary judgment is warranted on all claims.75
A.

The National Origin/Religious Discrimination Cause of Action

Plaintiff’s first cause of action seeks relief on the basis that he was subjected to national
origin and religious discrimination while he was employed by Defendant in violation of Texas

70

Anderson, 477 U.S. at 249.

71

Celotex, 477 U.S. at 323, quoting Fed. R. Civ. P. 56.

72

Anderson, 477 U.S. at 257.

73

Id.

74

Docket Entry 1.

75

Docket Entries 18 and 33.

10

Labor Code § 21.051. Defendant asserts that it is entitled to summary judgment on this claim
because Plaintiff cannot establish that Defendant’s basis for terminating Plaintiff was a mere
pretext for discrimination.
Texas Labor Code Chapter 21 was enacted to execute the policies of Title VII of the Civil
Rights Act of 1964 and Title I of the Americans with Disabilities Act.76 Chapter 21 includes the
Texas Commission on Human Rights Act (“TCHRA”) which provides
An employer commits an unlawful employment practice if because of race, color,
disability, religion, sex, national origin, or age the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates
in any other manner against an individual in connection with compensation or the
terms, conditions, or privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for employment in a
manner that would deprive or tend to deprive an individual or any employment
opportunity or adversely affect in any other manner the status of an employee.77
The Act explains, in pertinent part, that
an unlawful employment practice is established when the complainant demonstrates that
race, color, sex, national origin, religion, age, or disability was a motivating factor for an
employment practice, even if other factors also motivated the practice….78
The Texas Supreme Court, recognizing the state Legislature’s intention to “correlate state
law with federal law in employment discrimination cases,” has mandated the application of “the
burden-shifting analysis established by the United States Supreme Court” in discrimination cases
brought under the TCHRA that have not gone to trial.79

76

Tex. Lab.Code § 21.001, et seq.

77

Tex. Lab.Code § 21.051.

78

Tex.Lab.Code § 21.125(a).

79

W al-M art Stores v. Canchola, 121 S.W . 3d 735, 739 (Tex. 2003); Quantum Chemical Corp. v.
Toennies, 47 S.W .3d 473, 476 (Tex. 2001).

11

The burden-shifting analysis requires the plaintiff in an employment discrimination action
to establish a prima facie case by showing (1) he is a member of a protected class; (2) he was
qualified for the employment position; (3) he was subjected to an adverse employment action;
and (4) he was replaced by someone outside of his protected class and/or similarly situated
employees were treated more favorably.80 If the plaintiff cannot prove an adverse employment
action, he “cannot make the necessary prima facie cas[e] of discrimination….”81
Once the plaintiff has made his prima facie case, the burden then “shift[s] to the employer
to articulate some legitimate, nondiscriminatory reason….” for the employment action.82 The
defendant’s burden “is one of production, not persuasion; it ‘can involve no credibility
assessment.’”83 If the employer can proffer a legitimate reason for its actions, the burden shifts
back to the plaintiff to show by a preponderance of the evidence84 that the reason “was in fact
pretext.”85 In conducting this analysis, “‘[i]t is not enough…to disbelieve the employer; the
factfinder must believe the plaintiff’s explanation of intentional discrimination.’”86
In this case, both parties concede that Plaintiff is a member of a protected class, as both a

80

Okoye v. University of Texas Houston Health Science Center, 245 F.3d 507, 512-513 (5th Cir. 2001),
citing Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999); M cDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973).
81

M cCoy v. City of Shreveport, 493 F.3d 551, 557 (5th Cir. 2007).

82

M cDonnell Douglas Corp., 411 U.S. at 801.

83

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000), quoting St. M ary’s Honor
Center v. Hicks, 509 U.S. 502, 509 (1993); M cCoy, 492 F.3d at 557.
84

Reeves, 530 U.S. at 143.

85

M cDonnell Douglas Corp, 411 U.S. at 804.

86

Reeves, 530 U.S. at 147, quoting St. M ary’s Honor Center, 509 U.S. at 519 (emphasis in original).

12

Syrian and a Muslim,87 and was qualified for his position as Director of Rehabilitation.88
Plaintiff suffered an adverse employment action when he was terminated.89 Plaintiff was
replaced by Jose Santos, a man outside of Plaintiff’s protected classes.90 Therefore, Plaintiff has
established a prima facie case of discrimination.
Defendant has similarly met its burden of producing a legitimate, nondiscriminatory
reason for Plaintiff’s termination. Defendant has proffered evidence that Plaintiff was fired for
violating the No Call, No Show policy—an act of misconduct which is deemed grounds for
immediate termination in the employee manual.91 That evidence shifted the burden to Plaintiff to
provide evidence that Defendant’s purported reason for the discharge was a mere pretext for
discrimination. To meet his burden, Plaintiff “‘must produce substantial evidence of pretext.’”92
Plaintiff contends the following conduct fulfills his burden to establish that Defendant’s
purported reason for the discharge was a pretext for national origin and religion based

87

Docket Entry 32, Exhibit 2, ¶ 2.

88

Docket Entry 32, Exhibit 4 (Deposition of Roberto Martinez), at 66.

89

The requirement that Plaintiff clock in and out cannot be construed as an adverse employment action for
two reasons. First, despite myriad discussions regarding the same, Plaintiff never clocked in or out at any time
during his employment with Defendant. Second, an adverse employment action “‘means an ultimate employment
decision, such as hiring, granting leave, discharging, promoting, and compensating.’” Ptomey v. Texas Tech Univ.,
277 S.W .3d 487, 492 (Tex.App.-Amarillo 2009), quoting Foley v. Univ. of Houston Sys., 355 F.3d 333, 340 (5th
Cir. 2003). For the same reasons, being required to work a consecutive eight hour shift in the building cannot be
construed as an adverse employment action in this case. Furthermore, there is evidence that it was Plaintiff’s idea to
work the 9 a.m. to 6 p.m. shift (Docket Entry 32, Exhibit 3, Email from Aiman Abdulbaki to Roberto Martinez).
Finally, the requirement to work a specific shift was not enumerated in Plaintiff’s charge with the EEOC. Docket
Entry 32, Exhibit 8.
90
Docket Entry 32, Exhibit 11 (Deposition of Sue Chiles), at 24; Docket Entry 18, Exhibit A (Affidavit of
Maria Viray), at 5.
91

Docket Entry 18, Exhibit A-3; Docket Entry 32, Exhibit 12, at 55; Exhibit 13.

92

W allace v. The M ethodist Hospital System, 271 F.3d 212,220 (5th Cir. 2001), quoting Auguster v.
Vermillion Parish Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001).

13

discrimination: (1) the disparate treatment of Plaintiff as a management-level employee with
respect to clocking in and out, maintaining an eight-hour schedule in the facility and forbidding
the use of his personal blackberry for work emails; and (2) Mr. Martinez’s “terrorist” comment.
Plaintiff first asserts that the disparate treatment to which he was subjected is evidence of
pretext. To establish disparate treatment, a plaintiff must “demonstrate ‘ that the misconduct for
which she was discharged was nearly identical to that engaged in by an employee not within her
protected class whom the company retained.’”93 The facts that Plaintiff’s supervisors wanted him
to clock in and out, maintain a regular schedule in the facility and refrain from using his personal
blackberry for work are not sufficient to establish disparate treatment. Plaintiff’s termination
was not predicated upon any of those issues. Plaintiff was discharged for failing to call in or
show up for work on April 23, 2010. To establish disparate treatment as evidence of pretext,
Plaintiff must proffer evidence that the No Call, No Show policy was applied more favorably to
similarly situated, non-Syrian, non-Muslim employees. Plaintiff submitted no such evidence.
Thus, Plaintiff cannot meet his burden of establishing pretext by a showing of disparate
treatment.
Plaintiff also asserts that Mr. Martinez’s terrorist comment is proof that his discharge was
motivated by discrimination. For workplace comments to
provide sufficient evidence of discrimination, 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

93

W allace v. The M ethodist Hospital System, 271 F.3d 212, 221 (5th Cir. 2001), quoting Smith v. W alM art Stores (No. 471)., 891 F.2d 1177, 1180 (5th Cir. 1990)(brackets omitted from quotation); Janssen
Pharmaceutica, Inc. v. M artinez, 296 S.W .3d 634, 641 (Tex.App.-El Paso 2009).

14

issue.’94
If remarks meet the aforementioned four criteria, “they are probative of discriminatory intent”
provided that they “are not the only evidence of pretext.”95 In contrast, “[c]omments that do not
meet these criteria are considered ‘stray remarks,’ and standing alone, are insufficient to defeat
summary judgment.’”96
In this case, drawing all inferences in Plaintiff’s favor, Mr. Martinez’s comment
connecting terroristic threats to the Plaintiff can be interpreted to be related to the protected
classes of persons (Muslim and Syrian) to which Plaintiff belongs. However, the October
comment was made six months before Plaintiff’s April termination and was not, therefore,
proximate in time to the adverse employment action. Similarly, the comment was not related in
any way to Plaintiff’s termination.97 Finally, the evidence establishes that, while Mr. Martinez
made the comment, Ms. Viray made the decision to terminate Plaintiff. Thus, Mr. Martinez’s
terrorist comment constitutes a “stray remark” and “is not evidence of intentional
discrimination.”98
Plaintiff insists that while Ms. Viray was the formal decisionmaker for the discharge she

94

Patel v. M idland M emorial Hospital and M ed. Center, 298 F.3d 333, 343-344 (5th Cir. 2002),
quoting Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d 392, 400-401 (5th Cir. 2000)(quoting Brown
v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996)(internal brackets omitted); Jackson v. Cal-W estern
Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010).
95

Palasota v. Haggar Clothing Co., 342 F.3d 569, 577 (5th Cir. 2003).

96

Jackson, 602 F.3d at 380.

97

Jackson, 602 F.3d at 380, “The comment appears wholly unrelated to Jackson’s termination… .”

98

W allace, 271 F.3d at 223.

15

was, in truth, acting on behalf of Mr. Martinez.99 Through this argument, Plaintiff is attempting
to invoke the “cat’s paw” theory.100 The “discriminatory animus of a manager can be imputed to
the ultimate decisionmaker if the decisionmaker ‘acted as a rubber stamp or the ‘cat’s paw,’ for
the…employee’s prejudice.’”101 Stated another way, “[i]f the employee can demonstrate that
others had influence or leverage over the official decisionmaker…it is proper to impute their
discriminatory attitudes to the formal decisionmaker.”102
To prevail on his theory that Ms. Viray was acting as the cat’s paw to enact Mr.
Martinez’s discrimination, Plaintiff must necessarily establish Mr. Martinez’s animus against
Plaintiff based on his national origin and religion.103 The only evidence Plaintiff has of Mr.
Martinez’s discriminatory bias is Mr. Martinez’s comment that he hired someone to “take care”
of Plaintiff and the “terrorist” comment. The “take care” comment is “ambiguous at best in [its]

99

In support of this proposition, Plaintiff asserts that Ms. Viray contacted Mr. Martinez when making the
termination decision. However, the evidence establishes that Ms. Viray called Mr. Martinez to inform him of her
decision to terminate Plaintiff not to seek advice regarding the same. Docket Entry 18, Exhibit A (Affidavit of Maria
Viray), at 4; Docket Entry 32, Exhibit 4 (Deposition of Roberto Martinez), at 98, 102. Similarly, Plaintiff alleges
that Ms. Viray ignored Sue Chiles’ request to contact Plaintiff before terminating him. Docket Entry 32, at 15-16.
In contrast, Ms. Chiles testified that she suggested Ms. Viray call Plaintiff to inform him of his termination before he
received the termination letter- not to investigate the basis for the termination. Docket Entry 32, Exhibit 11, at 4142.
100

Laxton, 333 F.3d 572, 584-585 (5th Cir. 2003); Russell v. M cKinney Hospital Venture, 235 F. 3d
219, 226-227 (5th Cir. 2000).
101

Laxton, 333 F.3d at 584, quoting Russell, 235 F.3d at 227.

102

Russell, 235 F.3d at 226.

103

Plaintiff, relying on Staub v. Proctor Hosp., insists that the cat’s paw analysis is equally valid even in a
case where a supervisor used some level of her own discretion in making the decision to terminate. (“The mere fact
that Viray exercised judgment does not make the link to the bias of Mr. Martinez remote or purely contingent.”)
Docket Entry 32, at 16; Staub v. Proctor Hosp., 131 S.Ct.1186 (2011). In Staub, a “cat’s paw case” brought under
the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Court held that the “ultimate
decisionmaker’s exercise of judgment… .” does not “automatically rende[r] the link to the supervisor’s bias ‘remote’
or ‘purely contingent.’” Staub, 131 S. Ct. at 1192. As previously discussed, however, the plaintiff must first proffer
evidence of such discriminatory bias before he can succeed on establishing that the bias motivated the decision to
discharge. For this same reason, Plaintiff’s assertions that Ms. Viray frequently commented that she made decisions
because “that’s what Mr. Bob wanted” are unavailing. Docket Entry 32, at 15-16.

16

meaning, and, in any event, inapplicable…as [it] does not related to the protected class of which
[Plaintiff] is a member.”104 Similarly, Mr. Martinez’s one-time comment—made six months
before Plaintiff’s termination and without any relation to the same—is a mere stray remark.105
For these reasons, Plaintiff failed to raise a face question about whether Defendant’s decision to
terminate him was a pretext for discrimination.
Finally, Plaintiff also argued that Ms. Viray’s decision to terminate him when she had
discretion under the No Call, No Show policy to impose less severe discipline is further evidence
of discrimination. It is undisputed, however, that: (1) Plaintiff submitted a note from his
physician which stated Plaintiff would return to work on April 23;106 (2) Plaintiff neither returned
to work nor called Ms. Viray to inform her of his absence on April 23; and (3) Defendant had a
No Call, No Show policy which expressly stated that said behavior is grounds for immediate
termination.107 The “evidence is undisputed that [Plaintiff] engaged in the acts for which
[Defendant] terminated [him].”108 Because an “employer does not incur liability for carelessly
forming its reasons for termination,”109 it is not enough for Plaintiff to provide evidence that the
decision “was imperfect, incomplete, or arrived at a possibly incorrect conclusion. He must
show that the reason proffered by the [Defendant] is ‘false, and that discrimination was the real

104

Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d 392, 401 n. 3 (5th Cir. 2000)

105

Patel, 298 F.3d at 343.

106

Docket Entry 32, Exhibit 7.

107

Docket Entry 32, Exhibit 13.

108

W allace, 271 F.3d at 226.

109

Canchola, 121 S.W . 3d at 740.

17

reason.’”110 The ultimate “question for summary judgment is whether a rational fact finder could
find that the employer discriminated against” the plaintiff on the basis of his protected status.111
In this case, Plaintiff has failed to establish the same. As a result, Defendant is entitled to
summary judgment on Plaintiff’s causes of action for national origin and religious
discrimination.
B.

Retaliation Cause of Action

Defendant also seeks summary judgment on Plaintiff’s retaliation cause of action.112
Defendant argues that Plaintiff can neither establish a prima facie case of retaliation nor prove
that Defendant’s legitimate reason for termination was a mere pretext for retaliation.113
Retaliation causes of action are assessed using a burden-shifting analysis very similar to
those for discrimination claims.114 To make a prima facie case of retaliation, the plaintiff must
establish that: (1) he participated in a protected activity; (2) he suffered an adverse employment
action; and “(3) a causal connection exists between the protected activity and the adverse
employment action.”115 Once the plaintiff meets his initial burden, “the burden then shifts to the
employer to articulate a legitimate, nondiscriminatory or nonretaliatory reason for its

110

Id., quoting St. M ary’s Honor Center., 509 U.S. at 515 (emphasis in original); Reeves, 530 U.S. at
146-147, quoting St. M ary’s Honor Center., 509 U.S. at 524. “proof that ‘the employer’s proffered reason is
unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff’s proffered reason… is
correct.’”
111

Patel, 298 F.3d at 342.

112

Docket Entry 18, at 14-17.

113

Id.

114

Rubinstein, 218 F.3d at 401-402.

115

M cCoy, 492 F.3d at 556-557.

18

employment action.”116 If the defendant satisfies its burden, the plaintiff “bears the ultimate
burden of proving that the employer’s proffered reason is not true but instead is a pretext for the
real discriminatory or retaliatory purpose. To carry this burden, the plaintiff must rebut each
nondiscriminatory or nonretaliatory reason articulated by the employer.”117 The plaintiff “does
not have to prove that his ‘protected conduct was the sole factor in motivating’” the adverse
employment action.118 However, “even if a plaintiff’s protected conduct is a substantial element
in a defendant’s decision to terminate an employee, no liability for unlawful retaliation arises if
the employee would have been terminated even in the absence of the protected conduct.”119
In this case, Plaintiff cannot establish a prima facie case of retaliation because he only has
evidence to support one of the three elements of the cause of action, namely that he suffered an
adverse employment action when he was terminated. Plaintiff can neither prove that he
participated in a protected activity nor establish a causal link between any such activity and his
termination.
Plaintiff contends that his oral and written discussions with Sue Chiles and Carol
Ostermeyer about his alleged mistreatment rise to the level of protected activity.120 Title VII of
the Civil Rights Act provides
An employee has engaged in protected activity when he or she has (1) ‘opposed any
practice made an unlawful employment practice by this subchapter,’ or (2) made a charge,

116

M cCoy, 492 F.3d at 557.

117

M cCoy, 492 F.3d at 557, citing Laxton v. Gap, 333 F.3d at 578.

118

Rubinstein, 218 F.3d at 403.

119

Rubinstein, 218 F.3d at 402-403, citing Jack v. Texaco Research Center, 743 F.2d 1129, 1131 (5th

Cir. 1984).
120

Docket Entry 32, at 16-18.

19

testified, assisted or participated in any manner in an investigation, proceeding, or hearing
under this subchapter.’121
Similarly, Texas Labor Code 21.055 establishes that “an employer commits an unlawful
employment practice if it retaliates against an employee who: (1) opposes a discriminatory
practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or participates
in any manner in an investigation, proceeding, or hearing.”122 For Plaintiff’s complaints to rise to
the level of protected activity, therefore, they must have contained allegations not of general
mistreatment but of mistreatment arising out of discrimination based on Plaintiff’s national
origin or religion.
Plaintiff has proffered evidence of only one such conversation—his discussion with Carol
Ostermeyer in front of the administration office in February 2010 four months after Mr.
Martinez’s alleged derogatory remark.123 Plaintiff testified that he mentioned the terrorist
comment to Ms. Ostermeyer during a conversation about a possible new employment position.
The scenario presented by Plaintiff has none of the hallmarks of the kind of complaint that would
rise to the level of protected activity.124 Plaintiff did not call a meeting for the purpose of
reporting the comment. Plaintiff mentioned the statement in a discussion about another matter.

121

Aryain v. W al-M art Stores Texas LP, 534 F.3d 473, 484 n.8 (5th Cir. 2008), quoting 42 U.S.C. §

2000e-3(a).
122

Ptomey v. Texas Tech Univ., 277 S.W .3d 487, 495 (Tex.App.-Amarillo 2009), citing Tex. Lab. Code
Ann. § 21.055 (Vernon 2006).
123

Docket Entry 32, Exhibit 1, at 204.

124

Plaintiff relies on W ilson v. W illowbrook for the assertion that even an informal complaint of
discriminatory conduct is sufficient to constitute protected activity. Docket Entry 32, at 17; W ilson v.
W illowbrook, 433 F.Supp.321 (N.D. Tex. 1977). In that case, the court held that the plaintiff’s actions in drafting
and circulating (but not filing) an EEOC petition qualified as protected activity under Title VII. In contrast, the
conversation with Ms. Ostermeyer at issue in this case was not a deliberate, targeted attempt to report or complain
about the alleged discrimination.

20

Plaintiff told Ms. Ostermeyer about the remark in public. Plaintiff did not ask for remedial
action or protection.
Even assuming, arguendo, that the complaint rises to the level of protected activity, there
is no evidence of a causal connection between Plaintiff’s one-time conversation with Carol
Ostermeyer and his termination.125 Nothing in the record suggests that Ms. Ostermeyer ever
conveyed her discussion with Plaintiff to anyone else, let alone Ms. Viray or Mr. Martinez.126
Plaintiff contends that the temporal proximity between his complaint to Ms. Ostermeyer in
February 2010127 and his termination in April 2010 is sufficient to raise the inference of
discriminatory conduct when combined with the absence of a legitimate, non-discriminatory
reason for Plaintiff’s termination.128 However, the Supreme Court has held that in order for
temporal proximity to be sufficient to establish the causal link requirement for a prima facie case
of retaliation, it must be “‘very close,’” noting that even a three month period between the
protected activity and the termination were insufficient.129
Moreover, Defendant met produced evidence of a legitimate, non-retaliatory reason for
the termination. The undisputed facts establish that Plaintiff’s absence from work on April 23

125

Plaintiff’s termination is the only evidence of an adverse employment action in the record. The requests
for him to clock in and out, maintain an eight hour work day in the facility and refrain from using his personal
blackberry for work purposes “do not rise to the level of material adversity.” Aryain, 534 F.3d at 485. An action is
“materially adverse” if “it well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.’” Aryain, 534 F.3d at 484, quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006).
126

Docket Entry 32, Exhibit 4 (Deposition of Roberto Martinez), at 74, 102; Docket Entry 18, Exhibit G
(Affidavit of Carol Ostermeyer).
127

Docket Entry 32, Exhibit 1 at 177, 203-204.

128

Docket Entry 32, at 17-18.

129

Clark County School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001), citing Richmond v. ONEOK,
120 F.3d 205, 209 (10 Cir. 1997).

21

violated Defendant’s No Show, No Policy. Plaintiff must, ultimately, show that but-for his
hallway complaint to Ms. Ostermeyer he would not have been discharged. The only evidence
Plaintiff has to rebut Defendant’s termination rationale is the temporal proximity between the
February conversation and his April discharge.130
While temporal proximity can be one of several factors that establish a retaliatory motive
for termination, the Fifth Circuit has expressly stated that it “alone is insufficient to prove but for
causation.”131 The Court held:
To prevent future litigants from relying on temporal proximity alone to establish but for
causation, we once again attempt to clarify the issue….[W]e affirmatively reject the
notion that temporal proximity standing alone can be sufficient proof of but for causation.
Such a rule would unnecessarily tie the hands of employers.132
For these reasons, Plaintiff failed to meet his burden to raise genuine, disputed issues of material
fact exist with respect to his retaliation cause of action. Defendant is entitled to summary
judgment on Plaintiff’s retaliation claim.
C.

Harassment and Hostile Work Environment Cause of Action

Defendant also contends that Plaintiff’s claim for harassment and hostile work
environment fail as a matter of law.133 Defendant argues that Mr. Martinez’s single terrorist
comment is insufficient to support a cause of action for harassment. Defendant further asserts
that Plaintiff cannot tie any of the other alleged acts of harassment to hostility towards Plaintiff’s
national origin or religion. For these reasons, Defendant seeks summary judgment on Plaintiff’s

130

Docket Entry 32, at 17-18.

131

Strong v. Univ. Healthcare Sys., 482 F.3d 802, 808 (5th Cir. 2007).

132

Strong, 482 F.3d at 808.

133

Docket Entry 18, at 17-19.

22

harassment claim.
Plaintiff’s claim for harassment arises under the TCHRA’s prohibition against
discrimination “against an individual in connection with compensation or the terms, conditions,
or privileges of employment” on the basis of his “race, color, disability, religion, sex, national
origin, or age….”134 The TCHRA is interpreted with reference to Title VII of the Civil Rights
Act of 1964. Title VII similarly forbids discrimination based on an individual’s protected status
with respect to the “compensation, terms, conditions, or privileges of employment”135 and makes
clear the congressional intent to protect employees from “a discriminatorily hostile or abusive
environment.”136 To be actionable, the conduct must: (1) “create an objectively hostile or
abusive work environment—an environment that a reasonable person would find hostile or
abusive….” and (2) be subjectively perceived as abusive by the victim such that it “actually
altered the conditions of the victim’s employment.”137 The Supreme Court held
whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all
the circumstances. These may include the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance.138
Although Plaintiff asserts that he was subjected to ongoing, continuous harassment,139 the

134

Tex. Lab. Code § 21.051.

135

42 U.S.C. § 2000e-2(a)(1).

136

Harris v. Forklift Sys., 510 U.S. 17, 21 (1993).

137

Harris, 510 U.S. at 21.

138

Harris, 510 U.S. at 23.

139

Docket Entry 32, at 18-19.

23

only allegation of harassment that is tied to Plaintiff’s national origin and religion140 is Mr.
Martinez’s “terrorist” comment. The Supreme Court has made it clear that the “‘mere utterance
of an…epithet which engenders offensive feelings in a (sic) employee,’ does not sufficiently
affect the conditions of employment to implicate Title VII.”141 Because the only evidence to
support Plaintiff’s claim of harassment based on his national origin and religion is Mr.
Martinez’s single comment, Plaintiff’s cause of action fails as a matter of law. Defendant is
entitled to summary judgment on Plaintiff’s harassment claim.
D.

Violation of Family and Medical Leave Cause of Action

The Family Medical Leave Act was “enacted to permit employees to take reasonable
leave for medical reasons, for birth or adoption of a child, and for the care of a child, spouse, or
parent who has a serious health condition.”142 Two theories of recovery are available under the
Act: interference143 and retaliation.144 Plaintiff asserts both theories of recovery. Defendant
contends it is entitled to summary judgment on both claims.145
1.

Plaintiff’s FMLA Interference Cause of Action

140

In order to establish a claim for hostile work environment harassment under Title VII, a plaintiff must
establish that he was: (1) a member of a protected class; (2) subjected to unwelcome harassment; (3) the harassment
was based upon the plaintiff’s membership in a protected class; (4) the harassment affected a term, condition, or
privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take
prompt remedial action. Jones v. Flagship Int’l, 793 F.2d 714, 720-721 (5 th Cir. 1986)
141

Harris, 510 U.S. at 21, quoting M eritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986)(internal quotation marks omitted). See Rogers v. E.E.O.C., 454 F.2d 234, 238 (5th Cir. 1971); FarpellaCrosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996); Henson v. City of Dundee, 682 F.2d 897, 904
(11th Cir. 1982).
142

Bocalbos v. Nat’l W estern Life Ins., 162 F.3d 379, 382 (5th Cir. 1998); 29 U.S.C. § 2601(b)(1) & (2).

143

29 U.S.C. § 2615(a)(1).

144

29 U.S.C. § 2615(a)(2).

145

Docket Entries 18, 33, 34, 43.

24

Defendant asserts that Plaintiff is unable to establish the requisite elements of a FMLA
interference cause of action.146 Plaintiff argues that the facts “establish a prima face case of a
violation of U.S.C. § 2615(a)(1) of the FMLA and that Defendant interfered with his rights under
the Act and denied [him] the full benefits of leave for which he was eligible under the FMLA.”147
The FMLA’s “interference” clause “creates prescriptive rights”148 and forbids an
employer from interfering with an employee’s exercise of his rights under the Act.149 It provides:
“It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this subchapter.”150 To prevail on his interference
claim, Plaintiff must show that: (1) he was an eligible employee; (2) Defendant is a covered
employer; (3) he was entitled to leave under the FMLA; (4) he gave notice of his intent to take
leave; and (5) Defendant denied him FMLA benefits or interfered with FMLA rights to which he
was entitled.151 An “employee must establish these elements by a preponderance of the
evidence.”152
Defendant first asserts that summary judgment on Plaintiff’s FMLA cause of action is
warranted because Plaintiff was neither an eligible employee nor entitled to leave under the

146

Docket Entry 18, at 19-20.

147

Docket Entry 38, at 20.

148

Hoge v. Honda of Am. M fg., 384 F.3d 238, 244 (6th Cir. 2004).

149

29 U.S.C. § 2615(a)(1).

150

Id.

151
Hoge, 384 F.3d at 244, citing Cavin v. Honda of Am.M fg., Inc., 346 F.3d 713, 719 (6th Cir. 2003);
W ysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir. 2006). “This inquiry is an objective one divorced from the
employer’s motives, with the central question being simply whether the employee was entitled to the FMLA benefits
at issue.” Edgar v. JAC Products., 443 F.3d 501, 511 (6th Cir. 2006).
152

W ysong, 503 F.3d at 447.

25

FMLA since he was terminated before he actually requested the leave.153 In opposition, Plaintiff
argues that he was eligible for and entitled to FMLA leave.154 Plaintiff contends that even if the
decision to terminate him had already been made when he requested the leave, he was not
actually terminated until after he requested the leave on April 26 and, therefore, still entitled to
protection from interference under the FMLA. In support of this proposition, Plaintiff relies on
the fact that his termination paperwork was signed and mailed on April 26.155
The undisputed facts establish that it was not only the decision to terminate Plaintiff—but
the actual termination itself—occurred on April 23. Even if accidentally, Plaintiff submitted a
doctor’s note that stated he would return to work on April 23.156 Plaintiff neither returned nor
called in on April 23. Ms. Viray decided to terminate and, in fact, did terminate Plaintiff on
April 23. The finality of Plaintiff’s termination on April 23 is evidenced by Ms. Viray’s
undisputed announcement in the April 26 morning meeting that Plaintiff was no longer working
for Defendant. Therefore, Plaintiff was discharged and no longer an eligible employee when he
requested FMLA.157
Plaintiff insists that his pre-April 23 discussion with Ms. Garza about FMLA is enough to

153

W hile eligibility and entitlement to leave are two separate elements, they are considered together under
the circumstances of this case. “Eligibility” under the FMLA means that the employee is employed and has worked
1,250 hours in the preceding twelve months before requesting leave such that he may request the leave. 29 U.S.C. §
2611(2)(A)(i)-(ii). “Entitlement” means that the purpose for which Plaintiff requests the leave— e.g. serious medical
condition, need to care for a close family member— is a qualified reason under the Act and provides the employee
twelve total workweeks of leave in a twelve month period. 29 U.S.C. § 2612(a). In this case, if Plaintiff was
terminated before he requested leave, he was neither eligible nor entitled.
154

Docket Entry 32, at 19-22.

155

Docket Entry 32, Exhibit 10; Docket Entry 38, Exhibit 14.

156

Docket Entry, 32, Exhibit 7.

157

Brohm v. JH Properties, 149 F.3d 517, 523 (6th Cir. 1998).

26

constitute notice under the Act. The Regulations interpreting the FMLA require an employee to
provide “at least verbal notice sufficient to make the employer aware that the employee needs
FMLA-qualifying leave, and the anticipated timing and duration of the leave.”158 Although an
employee seeking leave for the first time under FMLA “need not expressly assert rights under the
FMLA or even mention the FMLA,”159 the Regulations explain that “[c]alling in ‘sick’ without
more information will not be considered sufficient notice to trigger an employer’s obligations
under the Act.”160 The ultimate inquiry with respect to notice under the Act is whether “the
information [Plaintiff] gave [Defendant] was ‘sufficient to reasonably apprise it of [Plaintiff’s]
request to take time off for a serious health condition.’”161
The undisputed evidence establishes that Plaintiff did not notify his employer of his
intention to take FMLA leave until after he was terminated. In the last conversation Plaintiff had
with Ms. Garza before his termination, he expressly declined FMLA leave. At the time Ms.
Viray terminated Plaintiff, the information before her established he would return to work on
April 23. “[N]othing in the statute places a duty on an employer to affirmatively grant leave
without such a request or notice by the employee. Rather, to invoke the protection of the FMLA,
an employee must provide notice and a qualifying reason for requesting the leave.”162 In this

158

29 C.F.R. § 825.302(c).

159

29 C.F.R. § 825.302(c); 29 C.F.R. § 825.301(b). See M anuel v. W estlake Polymers Corp., 66 F.3d
758, 764 (5th Cir. 1995), “W e hold that the Family and Medical Leave Act of 1993 does not require an employee to
invoke the language of the statute to gain its protection when notifying her employer of her need to leave for a
serious health condition.”
160

29 C.F.R. § 825.303(b).

161

Satterfield v. W al-M art Stores, 135 F.3d 973, 977 (5th Cir. 1998), citing Fed. R. Civ. P. 50; Boeing
Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969)(en banc), overruled on other grounds, Gautreaux v.
Scurlock M arine, 107 F.3d 331 (5th Cir. 1997) (en banc).
162

Brohm, 149 F.3d at 523.

27

case, Plaintiff failed to provide the requisite notice before he was terminated. For these reasons,
Plaintiff’s FMLA interference cause of action fails as a matter of law. Defendant is entitled to
summary judgment on Plaintiff’s FMLA interference claim.
2.

Plaintiff’s FMLA Retaliation Cause of Action

Defendant asserts that Plaintiff is unable to maintain an FMLA retaliation cause of action
because Plaintiff is unable to make a prima facie case of retaliation.163 In opposition, Plaintiff
contends that he was a covered employee under the Act, incorporates by reference his arguments
about Ms. Viray acting as the cat’s paw for Mr. Martinez, and notes “that the termination took
place the same day Mr. Abdulbaki requested the FMLA.”164
The FMLA’s “retaliation” clause creates “proscriptive rights”165 and makes it “unlawful
for any employer to discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful by this subchapter.”166 Retaliation claims under the FMLA
are subject to a very similar burden shifting analysis to retaliation claims under Title VII. A
plaintiff must first establish a prima facie case of FMLA retaliation after which the defendant
bears the burden of “articulat[ing] a legitimate nondiscriminatory or nonretaliatory reason for the
termination.”167 The burden then shifts back to the plaintiff to “show by a preponderance of the
evidence that the employer’s reason is a pretext for discrimination or retaliation.”168

163

Docket Entry 33.

164

Docket Entry 38, at 21-22.

165

Hoge, 384 F.3d at 244.

166

29 U.S.C. § 2615(a)(2). See Bocalbos, 162 F.3d at 383.

167

Bocalbos, 162 F.3d at 383.

168

Id.

28

To make a prima facie case of FMLA retaliatory discharge, the employee must show:
(1) he engaged in a protected activity; (2) he was discharged; (3) there is a causal link
between the protected activity and the discharge.169 In this case, Plaintiff can only establish
that he was discharged. Plaintiff did not engage in a protected activity because he never
actually applied for FMLA leave.170 Similarly, because Plaintiff was discharged before he
informed Defendant of his intention to file for FMLA, there is no causal connection between
his discharge and any request for FMLA.171
Even if Plaintiff were able to make his prima facie case, he is unable to establish that
Defendant’s legitimate reason for the discharge—Plaintiff’s violation of the No Call, No
Show policy on April 23—was pretextual.172 Plaintiff cannot show that other, similarly
situated employees who did not file for FMLA leave were treated more favorably, that is less
harshly, under the No Call, No Show policy.173 Because Plaintiff did not request FMLA

169

Richardson v. M onitronics Int’l, 434 F.3d 327, 332 (5th Cir. 2005); Hunt v. Rapides Healthcare
Sys., 277 F.3d 757, 768 (5th Cir. 2001), “To make a prima facie showing of retaliation under the FMLA, Hunt must
show that: (1) she was protected under the FMLA; (2) she suffered an adverse employment decision; and either (3a)
that she was treated less favorably than an employee who had not requested leave under the FMLA; or (3b) the
adverse decision was made because she took leave.”
170

Plaintiff relies on Norton v. City of San Antonio, for the proposition that he was still a covered
employee at the time he was retaliatorily discharged for filing for FMLA leave. Norton v. City of San Antonio
2007 W L 861041 (W .D. Tex. Mar. 19, 2007). In Norton, eleven days elapsed between the decision to terminate the
plaintiff and the actual termination. W ithin the context of that broad time difference, I stated, “It is unreasonable to
read the provision to mean that an employee’s right to FMLA leave ends when her employer decides to terminate
her.” Norton, 2007 W L 861041, at * 2. Norton is inapposite because, in this case, Plaintiff filed for FMLA leave
after he had been terminated.
171

See Donald v. Syba, Incorp., 667 F.3d 757, 763 (6th Cir. 2012), holding that temporal proximity alone
is not sufficient to establish a causal connection in a FMLA retaliation claim. In addition, the Fifth Circuit recently
held that a causal inference cannot be established under the theory that an employer knew an employee was sick and
“would likely continue to request FMLA leave.” Amsel v. Tex. W ater Dev. Bd.., 2012 W L 913676 (5th Cir. March
19, 2012), at *6.
172

Bocalbos, 162 F.3d at 383.

173

Hunt, 277 F.3d at 768.

29

leave until after he was terminated, he cannot demonstrate that but for filing for FMLA leave,
he would not have been terminated.174 For all these reasons, Plaintiff’s cause of action for
FMLA retaliation fails as a matter of law. Defendant is entitled to summary judgment on
Plaintiff’s FMLA retaliation claim.
VI. Conclusion and Recommendation
Based on the foregoing, I recommend GRANTING Defendant’s motion for summary
judgment (Docket Entries 18 and 33). Plaintiff failed to establish that there are genuine,
disputed issues of material fact as to any of the causes of action in his complaint. I further
recommend DENYING AS MOOT all other pending motions in this case.
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation
on all parties by either (1) electronic transmittal to all parties represented by attorneys
registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not
registered by certified mail, return receipt requested. Written objections to this report and
recommendation must be filed within 14 days after being served with a copy of same, unless
this time period is modified by the district court.175 Such party shall file the objections with
the clerk of the court, and serve the objections on all other parties. A party filing objections
must specifically identify those findings, conclusions or recommendations to which
objections are being made and the basis for such objections; the district court need not
consider frivolous, conclusive or general objections. A party’s failure to file written

174

175

Seaman v. CSPH, 179 F.3d 297, 301 (5th Cir. 1999).
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

30

objections to the proposed findings, conclusions and recommendations contained in this
report shall bar the party from a de novo determination by the district court.176 Additionally,
failure to file timely written objections to the proposed findings, conclusions and
recommendations contained in this report and recommendation shall bar the aggrieved party,
except upon grounds of plain error, from attacking on appeal the unobjected-to proposed
factual findings and legal conclusions accepted by the district court.177
SIGNED on March 29, 2012.

_____________________________________
NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE

176

Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, 200 F.3d 335, 340 (5th Cir.

177

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).

2000).

31