Burton v. Freescale Semiconductor, Inc.

• Decision Date: 10 August 2015
• Docket Number: No. 14–50944.,14–50944.
• Citation: 798 F.3d 222,31 A.D. Cases 1533
• Parties: Nicole BURTON, Plaintiff–Appellant v. FREESCALE SEMICONDUCTOR, INCORPORATED; Manpower of Texas, L.P.; Manpower, Incorporated; Transpersonnel, Incorporated, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

798 F.3d 222

31 A.D. Cases 1533

Nicole BURTON, Plaintiff–Appellant

v.FREESCALE SEMICONDUCTOR, INCORPORATED; Manpower of Texas, L.P.; Manpower, Incorporated; Transpersonnel, Incorporated, Defendants–Appellees.

No. 14–50944.

United States Court of Appeals, Fifth Circuit.

Aug. 10, 2015.

Kell Asher Simon, Attorney (argued), Law Offices of Kell A. Simon, Austin, TX, for Plaintiff–Appellant.

Shafeeqa Watkins Giarratani, Attorney (argued), Adam Troy Schramek, Norton Rose Fulbright US, L.L.P., Austin, TX, for Defendant–Appellee Freescale Semiconductor, Incorporated.

Scott A. Brutocao (argued), Cornell Smith & Mierl, L.L.P., Jamie Richards Whitney, Attorney, Austin, TX, Michael R. Phillips, Esq., Brian Spang, Esq., McGuireWoods, L.L.P., Chicago, IL, for Defendants–Appellees Manpower of Texas, L.P., Manpower, Incorporated and Transpersonnel, Incorporated.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges.

Opinion

REAVLEY, Circuit Judge:

Plaintiff–Appellant Nicole Burton appeals the district court's grant of summary judgment in favor of Defendant–Appellees Freescale Semiconductor, Inc. (“Freescale”), Manpower of Texas, L.P., Manpower, Inc., and Transpersonnel, Inc. (collectively, “Manpower”). Burton brought a claim under the Americans with Disabilities Act (the “ADA”) alleging discriminatory termination and a claim under the Texas Labor Code alleging retaliatory termination based on her filing of a workers' compensation claim. The district court ruled that the defendants had asserted legitimate reasons for terminating Burton and that she failed to make an adequate showing that these reasons were pretextual.

Concluding that the evidence, viewed in Burton's favor, is sufficient to raise an inference of pretext, we reverse the district court's grant of summary judgment with respect to Burton's ADA claim. Burton's retaliation claim, however, fails as a matter of law because Freescale did not provide Burton's workers' compensation coverage and because there is no evidence that Manpower acted with a retaliatory motive.

BACKGROUND

Freescale is a designer and manufacturer of microchips that relies, in part, on temporary employees provided by Manpower, a staffing agency. Beginning in 2009, Burton worked for Freescale as one such “temp” employee. In 2009 and 2010, Burton received generally positive-to-neutral performance reviews. In 2011, Burton's fortunes with Freescale turned. First, in January, she broke a wafer, the platform upon which microchips are seated during construction. The incident was reported and documented, and Burton received counselling from a Manpower supervisor, Jerry Rivera. Then, on March 1, Burton inhaled chemical fumes while on the job. Nothing came of the incident initially, but on April 12, she reported chest pains at work and was ultimately attended to by the company medical department and then EMS. Due to heart palpitations, she visited the emergency room on May 9 and 17. In mid-June, Burton came to believe that her health condition was caused by the exposure to fumes. She notified Freescale and then, a day later, Manpower. These reports effected the filing of a workers' compensation claim.

Roughly two weeks later, in “late June-ish,” Freescale's Bruce Akroyd decided to terminate Burton. According to Akroyd, a June 28th incident where Burton was caught using the Internet represented the “final” straw.¹ Nonetheless, there is conflicting evidence on whether Akroyd actually knew about the Internet incident when he decided to terminate Burton and whether the Internet incident actually postdated the decision to terminate Burton. Akroyd did not directly supervise Burton and relied on reports of underlings in determining she should be terminated. It remains unclear how he reached his decision, when he reached his decision, and upon what basis he reached his decision.

While the decision to terminate Burton's assignment was made in late June, she was not terminated until late July. The delay between the decision and its implementation was attributable to the need to hire and train her replacement. When the time to actually terminate Burton drew near, Manpower requested supporting documentation from Freescale. Akroyd passed the request to Freescale supervisors, who began generating retrospective “documentation” and (in contrast to previous practices) meticulously cataloging Burton's every shortcoming. On July 25, Manpower recommended against termination based on the paltry documentation and the recency of Burton's workers' compensation claim, but Freescale insisted.

The next day, Rivera and Manpower's regional director Joleen Dorsey conducted a conference call with Freescale's Akroyd and HR representative Denise Chefchis to discuss Burton's firing and establish a “communication plan.” Thereafter, Dorsey instructed Rivera to terminate Burton's assignment and to inform her it was based on four discrete incidents, at least two of which occurred after the decision to terminate her had already been made.

After her termination, Burton filed a claim with the EEOC, and Manpower and Freescale responded. The companies informed the EEOC that Burton was fired based on the four reasons previously provided to Burton at the time of her termination, this despite the fact that (at least) two of those reasons post-dated the actual termination decision.

Ultimately, Burton sued alleging her termination was discriminatory in violation of the ADA and retaliatory in violation of section 451.001(1) of the Texas Labor Code. The defendants moved separately for summary judgment, and judgment was granted in their favor. Burton now appeals.

STANDARD OF REVIEW

“We review a district court's grant or denial of summary judgment de novo, applying the same standard as the district court.” Robinson v. Orient Marine Co., 505 F.3d 364, 365 (5th Cir.2007). 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 factual “issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party,” and “ ‘material’ if its resolution could affect the outcome of the action.” Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir.2007).

DISCUSSION

I.

“The ADA prohibits an employer from discriminating against a ‘qualified individual with a disability on the basis of that disability.’ ” E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir.2014) (quoting 42 U.S.C. § 12112(a) ). “When a plaintiff can offer only circumstantial evidence to prove a violation of the ADA, this court applies the McDonnell Douglas burden-shifting framework.” E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir.2009). Under this framework, the plaintiff must make a prima facie showing of discrimination. Id. Once the showing is made, a presumption of discrimination arises, and the employer must “articulate a legitimate non-discriminatory reason for the adverse employment action.” See id. The burden then shifts to the plaintiff to show the articulated reason is pretextual. Id.

A.

This case requires us to go through each step of the McDonnell Douglas framework at some length. First, however, we consider the defendants' threshold arguments that they are not proper defendants. Freescale argues that it was not Burton's “employer” under the ADA, while Manpower argues it is not liable because Freescale was the driving force behind any discriminatory termination. These arguments fail.

1.

In determining whether Freescale was Burton's employer under the ADA it is appropriate to apply the “hybrid economic realities/common law control test.”² See Deal v. State Farm Cnty. Mut. Ins. Co. of Texas, 5 F.3d 117, 118–19 (5th Cir.1993) (quoting Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019 (5th Cir.1990) ). “The right to control an employee's conduct is the most important component of this test,” and we consider “whether the alleged employer has the right to hire and fire the employee, the right to supervise the employee, and the right to set the employee's work schedule.” Id. at 119. “The economic realities component of our test has focused on whether the alleged employer paid the employee's salary, withheld taxes, provided benefits, and set the terms and conditions of employment.”Id.

Freescale argues it is not Burton's employer because it did “not have authority to hire, fire, supervise or directly administer disciplinary procedures” to her. The evidence undermines this assertion. Freescale had the right to demand Burton's termination from the assignment. Freescale supervised Burton. Complaints against her were made by Freescale personnel, while her nominal Manpower supervisor, Arthur Flores, worked primarily at a different Freescale location and never observed her while she worked. Freescale employees completed performance reviews of Burton's work. On-the-job corrections and admonishment were delivered by Freescale employees. Most fundamentally, it was Freescale that decided and insisted that Burton be fired. Burton has offered adequate evidence of an employment relationship.

With respect to the economic realities inquiry, Freescale asserts that it “does not handle payroll, withhold taxes, provided [sic ] benefits, workers compensation insurance, or set the terms and conditions of employment for Manpower temps.” These considerations favor Freescale, but on balance and cognizant of our mandate to “emphasize” the common law control test, we find they do not change the outcome. See Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 434 (5th Cir.2013). The competing tests are in equipoise, and our emphasis on the common law control test is dispositive.

2.

Manpower argues it cannot be liable for Burton's termination because Akroyd, a Freescale manager, made the actual decision to terminate her. This argument...