Watkins v. Tregre ( 2021 )

Case: 20-30176 Document: 00515852967 Page: 1 Date Filed: 05/07/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
May 7, 2021
No. 20-30176 Lyle W. Cayce
Clerk
Denise Watkins, on her own behalf as well as all others similarly situated,
Plaintiff—Appellant,
versus
Michael Tregre, Sheriff and Chief Law Enforcement Officer,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:18-CV-2874
Before Jolly, Stewart, and Oldham, Circuit Judges.
E. Grady Jolly, Circuit Judge:
After she was fired, Denise Watkins sued her former boss, St. John the
Baptist Parish Sheriff Mike Tregre, for race discrimination under Title VII
of the Civil Rights Act of 1964 and for retaliatory discharge under the Family
Medical Leave Act (FMLA). Sheriff Tregre maintains that he had a
legitimate reason for firing Watkins—poor performance. But Watkins says
that reason is pretextual. The district court agreed with Sheriff Tregre and
entered summary judgment against Watkins. We conclude that there is a
genuine dispute of material fact as to whether Sheriff Tregre’s proffered
reason for firing Watkins is pretext for Title VII race discrimination and
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FMLA retaliation. We therefore VACATE the district court’s judgment
and REMAND for further proceedings not inconsistent with this opinion.
I.
Denise Watkins is a black woman who is suffering from severe anxiety.
She was a shift supervisor in the dispatch department of the St. John the
Baptist Parish Sheriff’s Office, where she had worked for 17 years—on and
off. She reported to Lieutenant Marshall Carmouche, who reported to
Senior 911 Commander Conrad Baker, and to Sheriff Tregre. The events
that led to this lawsuit occurred in a tight time span, between late January and
early March 2018. Timing is important, so we will include specific dates.
On January 30, Lieutenant Carmouche commended Watkins and
three other dispatchers for “superb work.” He recognized Watkins’s
performance in an email to Sheriff Tregre, explaining that “teamwork” in
the 911 department had led to an arrest.
Just ten days later, however, Lieutenant Carmouche counseled
Watkins about her poor performance. He told Watkins during this February
9 discussion that she “need[ed] to do a better job in supervising her personnel
and do a better job overall.” By way of examples, he addressed Watkins’s
sleeping on the job, missing license-plate-recognition hits, making personal
phone calls while on duty, and failing to ensure that emergency units
promptly were dispatched. No disciplinary measures were taken.
On February 20, Watkins gave Lieutenant Carmouche and Senior 911
Commander Baker a doctor’s note. The note said that “[d]ue to diagnosis
of anxiety, [Watkins] requires 3 24 hour shifts/periods ‘off’ and free of
responsibility per week.” Senior 911 Commander Baker passed the note up
his chain of command and alerted human resources.
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On February 22, two days after receiving notice of Watkins’s medical
condition, Lieutenant Carmouche filed a disciplinary-review-board request,
seeking review of the charges against Watkins. 1 He charged that Watkins had
engaged in “[c]onduct and work performance unsuitable for an employee of
St. John the Baptist Sheriff’s Office.” He identified five infractions, alleging
that Watkins (1) instructed dispatchers under her supervision that a license-
plate-recognition hit was not valid when it was valid; (2) failed to ensure that
emergency medical services were dispatched to an accident with injury
within a reasonable amount of time; (3) failed to remove a recovered gun from
the National Crime Information Center database after being advised that the
gun was recovered; (4) made “excessive” personal phone calls while on
duty; and (5) continued sleeping while on duty after being counseled against
doing so. Most of these infractions had occurred days or even weeks before
the medical leave request. Indeed, some ten days before the request,
Lieutenant Carmouche had counseled Watkins about most of these
infractions, and he neither took, nor indicated, further disciplinary action.
Yet, on February 22, Lieutenant Carmouche asked Watkins to
respond in writing to the deficiencies they discussed during their February 9
“counseling session.” Watkins complied. In her response, she admitted
sleeping on the job but explained that she had “developed some medical
issues” that affected her sleep patterns.
The next day, on February 23, Watkins sent Lieutenant Carmouche
and Senior 911 Commander Baker an email; the subject line read “Medical
1
The disciplinary review board was created by Sheriff Tregre and consists of a
“well-rounded group of people” the Sheriff selects from different divisions of the St. John
the Baptist Parish Sheriff’s Office. The board reviews allegations of misconduct and
recommends to the Sheriff the disciplinary action, if any, that should be taken against the
employee.
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leave.” Watkins wrote that she “needed to know when [her] medical leave
is suppose [sic] to start since no one has gotten back with [her] yet.”
On March 1, the disciplinary review board convened. Although
Lieutenant Carmouche’s request to the review board identified five
infractions, the board itself reviewed only one—sleeping on the job. The
board unanimously recommended that Watkins be fired, and Sheriff Tregre
approved the recommendation, firing Watkins the next day, on March 2.
Watkins, however, was not the only dispatch supervisor who had been
caught sleeping on the job. Joe Oubre, a white male dispatch supervisor, also
was caught, but he was not fired; he had only received “counseling.”
Citing disparate treatment and stressing the suspicious timing of her
firing, Watkins sued Sheriff Tregre under both Title VII and the FMLA. 2
She alleged that Sheriff Tregre violated Title VII by treating her worse than
Joe Oubre and, further, violated the FMLA by firing her in retaliation for
requesting medical leave.
After discovery, Sheriff Tregre moved for summary judgment. He
contended that Watkins’s Title VII claim failed because Watkins could not
make a prima facie case of discrimination, and even if she could, he had
legitimate, nondiscriminatory reasons for firing her. He further contended
that Watkins’s FMLA claim failed because Watkins never requested
FMLA leave, and even if she had, he had legitimate, nonretaliatory reasons
for firing her, i.e., sleeping on the job.
2
Watkins also asserted a claim for “failure to accommodate,” presumably under
the Americans with Disabilities Act. The district court dismissed the claim on summary
judgment, and Watkins does not mention the claim in her briefing on appeal. So Watkins
has abandoned the claim. See Badgerow v. REJ Props., Inc., 974 F.3d 610, 614 n.1 (5th Cir.
2020) (citing United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)).
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Watkins, naturally, opposed the Sheriff’s motion for summary
judgment. To show disparate treatment and pretext in the Title VII context,
she pointed to deposition testimony showing that Joe Oubre was not fired for
sleeping on the job. As for her FMLA claim, Watkins contended that the
doctor’s note she gave Lieutenant Carmouche and Commander Baker
constituted FMLA-protected activity. On pretext, she stressed the
inculpating sequence of events: Two days after receiving the doctor’s note,
Lieutenant Carmouche filed a disciplinary-review-board request against her.
That request culminated in her firing seven days later, which was as
immediately after her protected activity as established procedures would
allow. In short, with respect to the FMLA charge, she based her claim of
pretext on the tight timing of her discharge.
The district court granted summary judgment to Sheriff Tregre. In
its analysis of both claims, the district court assumed that Watkins made a
prima facie case, noted the reasons Sheriff Tregre gave for firing her, and
turned to pretext. The court then concluded, without further explanation,
that Watkins “failed to produce competent summary judgment evidence to
show disparate treatment or that [Sheriff Tregre’s] proffered explanation is
false or unworthy of credence.” The court then entered a take-nothing
judgment, from which Watkins timely appeals.
II.
We review the grant of summary judgment de novo. West v. City of
Houston, 960 F.3d 736, 740 (5th Cir. 2020) (per curiam). Summary judgment
is appropriate if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). A dispute is genuine if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986). A fact is material if it “might affect
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the outcome of the suit.” Id. We view the evidence in the light most
favorable to the nonmovant and draw all reasonable inferences in that party’s
favor. Adams v. Alcolac, Inc., 974 F.3d 540, 543 (5th Cir. 2020) (per curiam).
III.
Watkins contends the district court erred in granting summary
judgment dismissing her Title VII and FMLA claims. We consider her
Title VII claim before turning to her FMLA claim.
A.
Title VII Claim
Watkins first challenges the district court’s summary judgment
dismissing her Title VII claim. Without addressing the evidence of disparate
treatment, the district court entered summary judgment, concluding that
Watkins failed to show that Sheriff Tregre’s proffered reason for firing her
was pretextual.
It is basic that Title VII prohibits an employer like Sheriff Tregre from
discriminating against an employee like Watkins “because of” her race. See
42 U.S.C. § 2000e-2(a)(1). Watkins lacks direct evidence of discrimination,
so we apply the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Sanders v. Christwood, 970 F.3d 558, 561 (5th
Cir. 2020). Under that framework, Watkins must first make a prima facie
case of race discrimination, and then the burden of production shifts to
Sheriff Tregre to proffer a legitimate, nondiscriminatory reason for his
action. See Outley v. Luke & Assocs., Inc., 840 F.3d 212, 216 (5th Cir. 2016).
If Sheriff Tregre does that, “the presumption of discrimination disappears,”
and Watkins “must then produce substantial evidence indicating that the
proffered legitimate[,] nondiscriminatory reason is a pretext for
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discrimination.” Id. (citation and quotations omitted). We turn now to apply
this framework to the facts of the case.
1.
At the first step of the McDonnell Douglas framework, Watkins must
make a prima facie case of race discrimination. To do that, she must show
that (1) she belongs to a protected group, (2) she was qualified for her
dispatch supervisor position, (3) she suffered an adverse employment action,
and (4) a similarly situated employee outside of her protected group was
treated more favorably. See Nasti v. CIBA Specialty Chems. Corp., 492 F.3d
589, 593 (5th Cir. 2007).
Watkins makes a prima facie case of race discrimination. First,
Watkins is black and therefore a member of a protected group. See Outley,
840 F.3d at 216. Second, Sheriff Tregre does not dispute that Watkins was
qualified for her dispatch supervisor position. Third, Watkins’s firing
obviously constitutes an adverse employment action. See Long v. Eastfield
Coll., 88 F.3d 300, 306 (5th Cir. 1996). Fourth, Watkins marshals competent
summary-judgment evidence, i.e, Sheriff Tregre’s deposition testimony,
showing that Joe Oubre, a similarly situated white male employee, was
treated more favorably. 3 Oubre was “counseled”—not fired—for sleeping
on the job.
Because Watkins makes a prima facie case of race discrimination, the
burden shifts to Sheriff Tregre to proffer a legitimate, nondiscriminatory
reason for firing Watkins. See Outley, 840 F.3d at 218.
3
We note that Sheriff Tregre has not made any argument denying that Watkins
and Oubre are similarly situated. In fact, Sheriff Tregre’s brief ignores Oubre entirely.
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2.
At this step of the McDonnell Douglas framework, Sheriff Tregre’s
burden is one of production—not persuasion. See Alvarado v. Tex. Rangers,
492 F.3d 605, 611 (5th Cir. 2007). He “‘must articulate a nondiscriminatory
reason with sufficient clarity to afford [Watkins] a realistic opportunity to
show that the reason is pretextual.’” Burton v. Freescale Semiconductor, Inc.,
798 F.3d 222, 231 (5th Cir. 2015) (quoting Patrick v. Ridge, 394 F.3d 311, 317
(5th Cir. 2004) (emphasis omitted)).
He does so. The proffered reason is “incompetent and inefficient job
performance.” We have “held that a charge of ‘poor work performance’ is
adequate when coupled with specific examples.” Id. Sheriff Tregre offers
five examples: Watkins (1) instructed dispatchers under her supervision that
a license-plate-recognition hit was not valid when the hit was valid; (2) failed
to ensure that emergency medical services were dispatched to an accident
with injury within a reasonable amount of time; (3) failed to remove a
recovered gun from the National Crime Information Center database after
being advised that the gun was recovered; (4) made “excessive” personal
phone calls while on duty; and (5) continued sleeping while on duty after
being counseled against doing so.
Because Sheriff Tregre meets his burden of production at the second
step of the McDonnell Douglas framework, the burden shifts back to Watkins
to show pretext. See Outley, 840 F.3d at 216.
3.
Watkins must now produce “substantial evidence” that Sheriff
Tregre’s proffered reason is pretext for race discrimination. See Laxton v.
Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). “Evidence is substantial if it is of
such quality and weight that reasonable and fair-minded men in the exercise
of impartial judgment might reach different conclusions.” Id. at 579
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(quotations omitted). Watkins “may establish pretext either through
evidence of disparate treatment or by showing that [Sheriff Tregre’s]
proffered explanation is false or ‘unworthy of credence.’” Id. at 578.
Viewing the evidence in the light most favorable to Watkins, we
conclude that Watkins has produced substantial evidence of pretext based on
disparate treatment. As noted, Sheriff Tregre’s deposition testimony shows
that Sheriff Tregre treated Watkins worse than Joe Oubre, a similarly
situated white male who also was caught sleeping on the job. Whereas Sheriff
Tregre fired Watkins, he merely “counseled” Oubre. True, Sheriff Tregre
offered, and Lieutenant Carmouche’s disciplinary-review-board request
listed, additional examples of poor performance. But there is a factual
dispute as to whether those examples were the basis for the firing decision.
On the one hand, Sheriff Tregre testified that he fired Watkins for “a variety
of deficiencies.” On the other, a member of the disciplinary review board
said that sleeping on the job was the only example of poor performance
presented to the board. In this posture, we cannot weigh that evidence or
resolve that dispute in Sheriff Tregre’s favor, see Tolan v. Cotton, 572 U.S.
650, 657 (2014) (per curiam), so we assume that Watkins was fired for
sleeping on the job. Because Joe Oubre was “counseled” for the same
offense, we conclude that there is a genuine dispute of material fact on the
question whether Sheriff Tregre’s proffered reason for firing Watkins is
pretext for race discrimination. The district court therefore erred in
dismissing Watkins’s Title VII claim on summary judgment and is
accordingly reversed on that claim.
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Having resolved Watkins’s first challenge to the dismissal of her
complaint, we turn to her second. 4
B.
FMLA Claim
Watkins next challenges the summary judgment dismissing her
FMLA retaliatory-discharge claim. The district court dismissed this claim
for the same reason it dismissed the Title VII claim: Watkins failed to show
that Sheriff Tregre’s proffered reason for firing her was pretextual.
The FMLA grants “an eligible employee” up to twelve weeks of
annual unpaid leave for “a serious health condition” that prevents her from
performing the functions of her job. 29 U.S.C. § 2612(a)(1)(D). It prohibits
an employer from interfering with the exercise of any right provided under
the Act and from “discharg[ing] . . . any individual for opposing any practice
made unlawful by” the Act. Id. § 2615(a)(2).
Watkins lacks direct evidence of discrimination, so we again apply the
McDonnell Douglas framework. See Tatum v. S. Co. Servs., 930 F.3d 709, 713
(5th Cir. 2019). That framework first requires Watkins to make a prima facie
case. See id. If she does that, the burden shifts to Sheriff Tregre to articulate
a legitimate, nonretaliatory reason for firing her. See id. If he does that, the
burden shifts back to Watkins to show that Sheriff Tregre’s proffered reason
is pretext for retaliation. See id.4
We note that although disparate treatment is clear, and adequately supports a
conclusion that “sleeping on the job” is a pretextual reason for her discharge in the Title
VII context, the timing of her discharge is also incriminating evidence of pretext in the
FMLA context.
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1.
At the first step of the McDonnell Douglas framework, we ask whether
Watkins makes a prima facie case of retaliatory discharge. To make a prima
facie case, Watkins must establish three elements: (1) she engaged in FMLA-
protected activity, (2) Sheriff Tregre discharged her, and (3) a causal link
between the protected activity and the discharge. See id.Watkins establishes all three elements of her prima facie case.
Watkins engaged in FMLA-protected activity when she gave Lieutenant
Carmouche and Senior 911 Commander Baker the doctor’s note stating that,
“[d]ue to diagnosis of anxiety,” she required three days off per week, and
when she sent Lieutenant Carmouche and Senior 911 Commander Baker an
email asking when her requested medical leave was supposed to start. So her
request for medical leave establishes first element. She establishes the
second element because Sheriff Tregre discharged her. And she establishes
the third element of her prima facie case based on timing alone: She requested
medical leave on February 20 and 23, and a disciplinary-review-board request
was brought against her on February 22. The next succeeding board was
convened on March 1, and she was fired the next day. In short, Watkins was
fired as immediately after her protected activity as established procedures
would allow. See Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 578 (5th
Cir. 2020) (retaliation plaintiff met prima facie burden based on timing alone
by pointing to six-to-seven-week gap between protected activity and
termination); see also Garcia v. Pro. Cont. Servs., Inc., 938 F.3d 236, 243 (5th
Cir. 2019) (“At the prima facie case, a plaintiff can meet his burden of
causation simply by showing close enough timing between his protected
activity and his adverse employment action.”).
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Because Watkins makes a prima facie case of FMLA retaliation, the
burden shifts to Sheriff Tregre to proffer a legitimate, nonretaliatory reason
for firing Watkins. See Tatum, 930 F.3d at 713.
2.
In accord with the recommendation of the review board, Sheriff
Tregre fired Watkins for “sleeping on the job.” That reason satisfies Sheriff
Tregre’s burden of production at the second step of the McDonnell Douglas
framework. The burden thus shifts back to Watkins to raise a genuine dispute
of material fact regarding pretext. See Tatum, 930 F.3d at 714.
3.
Watkins must now raise a genuine dispute as to whether the proffered
reason—“sleeping on the job”— is pretext for FMLA retaliation. See id.
She may do so using “any evidence that casts doubt on the credence” of that
reason. Brown, 969 F.3d at 578 (emphasis added). A reason is “unworthy of
credence if it is not the real reason for the adverse employment action.”
Laxton, 333 F.3d at 578. Turning to the summary-judgment record, we see
two items of evidence that “cast[ ] doubt on the credence,” Brown, 969 F.3d
at 578, of the proffered reason and suggest that “sleeping on the job” was not
“the real reason,” Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir.
2011), for firing Watkins.
First, the record reflects that “sleeping on the job” is not an infraction
that results in termination. Sheriff Tregre tolerated “sleeping on the job” by
at least one other dispatch supervisor: He did not fire Joe Oubre after Oubre
was caught “sleeping on the job.” What is more, Sheriff Tregre could not
recall any dispatcher (besides Watkins) whom he had ever fired for “sleeping
on the job.” That Sheriff Tregre did not fire—and apparently has not ever
fired—a dispatch supervisor for “sleeping on the job,” yet proffered that
very reason as justification for firing Watkins, “casts doubt on the credence,”
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Brown, 969 F.3d at 578, of the reason. When combined with Watkins’s prima
facie case, and when viewed in Watkins’s favor, this evidence raises a genuine
dispute as to whether “sleeping on the job” is the “real reason” Sheriff
Tregre fired Watkins. See Vaughn, 665 F.3d at 639–40. A reasonable jury
could infer unlawful retaliation from the falsity of Sheriff Tregre’s
explanation. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147
(2000); Vaughn, 665 F.3d at 639–40; Gee v. Principi, 289 F.3d 342, 348 (5th
Cir. 2002). 5
Second, if the above evidence were not enough, Watkins also directs
our attention to the suspicious sequence of events leading up to her firing.
Lieutenant Carmouche filed a disciplinary-review-board request against her
just two days after she gave him a doctor’s note requesting three days off per
week. Watkins had been caught sleeping on the job before, but it was not
until she submitted the doctor’s note that a disciplinary-review-board
request was initiated. As we have noted, the disciplinary-review-board
request set in motion the usual process that culminated in Watkins’s ultimate
firing. Within two days after Watkins gave Lieutenant Carmouche the
doctor’s note, Lieutenant Carmouche initiated the disciplinary-review-board
request that resulted in her firing; this “carr[ies] significant weight” in our
pretext inquiry. Ameristar Airways, Inc. v. Admin. Review Bd., U.S. Dep’t of
5
To be clear, we do not hold, as we have in Watkins’s Title VII claim, that Watkins
has established disparate treatment for purposes of the FMLA. She has not: Her evidence
of disparate treatment in the Title VII context does not establish disparate treatment in
the FMLA context because the record is unclear on whether her comparator in the Title
VII context, Joe Oubre, requested medical leave. See Wallace v. Methodist Hosp. Sys., 271
F.3d 212, 222 (5th Cir. 2001) (pregnancy-discrimination plaintiff failed to show pretext
based on disparate treatment because she failed to show that any non-pregnant co-worker
received more favorable treatment); Burton v. Buckner Child. & Fam. Servs., Inc., 104 F.
App’x 394, 396 (5th Cir. 2004) (per curiam) (employee failed to show disparate treatment
under the FMLA because the record did not reflect whether proposed comparator had
requested leave).
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Labor, 650 F.3d 562, 569 n.21 (5th Cir. 2011). 6 When combined with the
discredited reason of “sleeping on the job,” the near-immediate temporal
proximity of the discharge to the protected activity leaves us with no room
to doubt that Watkins has carried her summary-judgment burden of
producing “substantial evidence” that Sheriff Tregre would not have fired
her but for her FMLA-protected activity. See Brown, 969 F.3d at 577 (citing
Musser v. Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir. 2019)).
In sum, viewing all of the evidence in its totality and in the light most
favorable to Watkins, we conclude that there is a genuine dispute of material
fact on the question whether Sheriff Tregre’s proffered justification for firing
Watkins is pretext for FMLA retaliation. The district court therefore erred
in granting summary judgment. This conclusion does not mean that Watkins
will prevail at trial; it means only that Watkins has produced enough evidence
to survive summary judgment on her FMLA retaliatory-discharge claim and
is entitled to proceed further. 7
6
Although we have “affirmatively reject[ed] the notion that temporal proximity
standing alone can be sufficient proof of but for causation,” Strong v. Univ. Healthcare Sys.,
L.L.C., 482 F.3d 802, 808 (5th Cir. 2007), we rarely have addressed temporal proximity so
close. See, e.g., Brown, 969 F.3d at 579 (temporal proximity of about six weeks); United
States ex rel King v. Solvay Pharms., Inc., 871 F.3d 318, 334 (5th Cir. 2017) (per curiam)
(about three-and-a-half months); Fairchild v. All Am. Check Cashing, Inc., 815 F.3d 959,
967–68 (5th Cir. 2016) (about two months); Outley, 840 F.3d at 219–220 (about two
months); Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 487 (5th Cir. 2008) (more than
two weeks); Boyd v. State Farm Ins. Cos., 158 F.3d 326, 330 (5th Cir. 1998) (about one year);
but see Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 306–07 (5th Cir. 2020) (about one
week).
7
With respect, we cannot agree with the partial dissent’s contention that the
evidence showing that Oubre was not fired for “sleeping on the job” is “irrelevant as a
matter of law.” Post, at 17. The partial dissent seems to reason that this evidence is
irrelevant because it does not amount to dispositive disparate treatment under the FMLA.
Post, at 17 (citing Wallace, 271 F.3d at 221). But evidence need not be dispositive of pretext
to be probative in determining pretext. See Brown, 969 F.3d at 578 (“Pretext can be proven
by any evidence that casts doubt on the credence of the employer’s proffered justification
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IV.
In this opinion, we have held that the district court erred in granting
summary judgment dismissing Watkins’s Title VII and FMLA claims
because Watkins created a genuine dispute of material fact at the pretext
stage of the McDonnell Douglas framework as to each claim, and she is entitled
to proceed further to prove her case. Accordingly, the judgment of the
district court is VACATED as to each claim and the case is REMANDED
for further proceedings not inconsistent with this opinion.
VACATED AND REMANDED.
for the adverse employment action.”). And we think that the evidence we have described
tends to show that “sleeping on the job” is not a dischargeable offense, and, consequently,
that Sheriff Tregre’s assertion that he discharged Watkins for “sleeping on the job” is
unworthy of credence as a reason for discharging Watkins. To us, this conclusion is
inescapable when applying rational thinking. Because our holding that Watkins has created
a genuine dispute of material fact as to pretext is based on (1) evidence that the proffered
reason of “sleeping on the job” is unworthy of credence and (2) extremely close temporal
proximity, we respectfully disagree with the partial dissent’s assertion that we have
“violat[ed] our rule of orderliness” by relying on temporal proximity alone. Post, at 18. We
have done no such thing.
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Andrew S. Oldham, Circuit Judge, dissenting in part:
I join the panel in reversing the district court’s grant of summary
judgment as to Watkins’s Title VII claim. I write separately because Watkins
did not carry her burden as to the Family Medical Leave Act (“FMLA” or
“the Act”) retaliation claim. The majority’s holding to the contrary relies on
nonexistent facts and an erroneous understanding of precedent. I respectfully
dissent in part.
* * *
No one disputes the rules that govern these summary judgment
proceedings. We apply the McDonnell Douglas burden-shifting framework to
determine whether the Defendants discharged Watkins in violation of
FMLA’s anti-retaliation provisions. See Richardson v. Monitronics Int’l, Inc.,
434 F.3d 327, 332 (5th Cir. 2005). Under that framework, Watkins bears the
initial burden of establishing a prima facie case of retaliation. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once Watkins makes out a
prima facie case, Sheriff Tregre must “articulate some legitimate,
nondiscriminatory reason” for firing her. Ibid. Then it falls to Watkins to
show the proffered reason is a pretext for retaliation. Id. at 804.
Here, the question is whether Tregre’s proffered reason—that
Watkins slept on the job—was pretext for FMLA retaliation. The majority
says Watkins carried her burden, relying primarily on three pieces of
evidence: (1) that the Sheriff’s Office only verbally counseled Joe Oubre for
sleeping on the job, but fired Watkins for the same conduct (the “disparate
treatment” evidence); (2) that no dispatcher has previously been fired for
sleeping on the job (the “unprecedented action” evidence); and (3) that a
disciplinary review board was convened just two days after Watkins
requested medical leave (the “temporal proximity” evidence). See ante, at
12–14. Taken together, “Watkins has produced enough evidence to survive
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summary judgment on her FMLA retaliatory-discharge claim.” Id. at 15.
There are three fundamental errors in the majority’s conclusion.
First, the “disparate treatment” evidence is irrelevant as a matter of
law. Our precedent is clear—disparate treatment is only probative of pretext
where the comparator employee is not in the plaintiff’s protected class. See
Wallace v. Methodist Hosp. Syst., 271 F.3d 212, 221 (5th Cir. 2001) (explaining
that a plaintiff must show “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” (emphasis added) (quotation and
alteration omitted)). That means Watkins bore the burden of showing Oubre
engaged in the same misconduct and that he never requested FMLA-
protected leave. Here, Watkins offered no evidence showing whether Oubre
requested leave. The record is not “unclear” on that point. Ante, at 13 n.5.
It’s just deafeningly silent—and given that it’s Watkins’s burden to prove
the point, that silence is fatal to her FMLA claim.
Undeterred, the majority tries to smuggle in the disparate-treatment
evidence another way. It says the non-evidence of Oubre’s non-firing can
show that “‘sleeping on the job’ is not an infraction that results in
termination.” Id. at 13. But there is no legal difference between saying
“Oubre was not fired for sleeping on the job” and “no other employee was
fired for sleeping on the job.” Both are disparate-treatment claims. Both are
foreclosed by Watkins’s failure to carry her evidentiary burden.
Second, once we exclude the “disparate-treatment” evidence, the
majority’s “unprecedented-action” evidence is meaningless. True, Sheriff
Tregre admitted he couldn’t recall firing another dispatcher for sleeping on
the job. But that fact standing alone tells us nothing. Excluding Oubre, we
know that Tregre caught one dispatcher sleeping (Watkins) and fired one
dispatcher (Watkins). I suppose that makes her firing “unprecedented”—
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No. 20-30176
but it also makes Tregre’s practice of firing sleeping dispatchers unbroken.
Either way, it provides zero evidence of pretext.
Third, the “temporal proximity” evidence cannot alone establish
pretext. It’s true that close temporal proximity between an employee’s
protected conduct and her firing “carr[ies] significant weight” in the pretext
inquiry. Ameristar Airways, Inc. v. Admin. Rev. Bd., U.S. Dep’t of Lab., 650
F.3d 562, 569 n.21 (5th Cir. 2011). But we have repeatedly said temporal
proximity evidence alone is insufficient to defeat summary judgment. See,
e.g., Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir.
2007). Again, the panel concedes as much. But the majority nonetheless
contends that this case is different for two reasons: (1) the evidence “[w]hen
combined . . . leaves us with no room to doubt that Watkins has carried her
summary-judgment burden”; and (2) “we have rarely addressed temporal
proximity so close.” Ante, at 14 & n.6.
Those distinctions are unpersuasive. As noted above, the
“unprecedented action”/“disparate treatment” evidence is legally
irrelevant. So there is no “combined” evidentiary picture to consider in
tandem with “temporal proximity.” The only evidence of pretext the
majority can find is temporal proximity—and it violates our rule of
orderliness to rely on that alone. See Strong, 482 F.3d at 808 (holding that
“temporal proximity alone is insufficient”); ibid. (explaining that its holding
would “prevent future litigants from relying on temporal proximity alone”);
cf. Evans v. City of Houston, 246 F.3d 344, 356 (5th Cir. 2001) (“[T]he close
temporal proximity between [the plaintiff's] appearance at her co-worker's
grievance hearing and her demotion, coupled with . . . evidence in the form
of memoranda written by [the employer] that tend to refute [his] own
justifications for the demotion . . . supports an inference of retaliation.”).
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No. 20-30176
Moreover, the majority has discarded our precedents’ bright line
(“temporal proximity alone is never sufficient”) and replaced it with a new,
very hazy one (“temporal proximity is sufficient when we think it’s
‘close’”). So, you might reasonably wonder, when is temporal proximity
“close”? Is three days sufficiently close? How about six? Who knows?
In sum, we have no basis for reversing the district court’s grant of
summary judgment on Watkins’s FMLA claim. I respectfully dissent from
that portion of today’s decision.
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