Richardson v. Monitronics Intern., Inc.

• Decision Date: 21 December 2005
• Docket Number: No. 05-10346.,05-10346.
• Parties: Pamela RICHARDSON, Plaintiff-Appellant, v. MONITRONICS INTERNATIONAL, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

434 F.3d 327

Pamela RICHARDSON, Plaintiff-Appellant, v. MONITRONICS INTERNATIONAL, INC., Defendant-Appellee.

No. 05-10346.

United States Court of Appeals, Fifth Circuit.

December 21, 2005.

COPYRIGHT MATERIAL OMITTED

Robert G. Lee, Heygood, Orr, Reyes & Bartolomei, Irving, TX, for Richardson.

Victor N. Corpuz, Kristin Leigh Bauer, Jackson Lewis, Dallas, TX, for Defendant-Appellee.

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

Before REAVLEY, DAVIS and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant Pamela Richardson sued Defendant-Appellee Monitronics International, Inc. ("Monitronics"), alleging that she was fired in retaliation for exercising her rights under the Family and Medical Leave Act ("FMLA").¹ The parties consented to a trial before a magistrate judge, who eventually granted Monitronics's motion for summary judgment and dismissed Richardson's action. We affirm.

I. FACTS AND PROCEEDINGS

A. Background

From July of 2000 until October of 2002, Richardson worked in the customer service department of Monitronics, a monitoring company for residential and commercial alarm systems. This is the second FMLA suit that Richardson has filed against Monitronics.

B. The First Suit

In January 2001, Richardson's physician diagnosed her as suffering from carpal tunnel syndrome. She applied for FMLA leave, but Monitronics denied her request because she had not yet worked for Monitronics for one year, which is necessary for an employee to be entitled to FMLA leave. Consequently, Richardson took a two-month paid leave under Monitronics's occupational injury program. In addition to her two-month leave under that program, Richardson accumulated 12 absences and 22 tardies during the first four months of 2002. As a result of her attendance record, Monitronics suspended Richardson and issued her a warning for her attendance problems.

In April 2002, Richardson successfully applied for and was granted FMLA leave. During her absence, Monitronics implemented a new software program. When Richardson returned from leave, Monitronics restored her to the same job title, rate of pay, and position that she had when she took leave. Monitronics, however, prohibited Richardson from working overtime on weekends until she was trained on the new software program. Once Richardson completed the training, Monitronics permitted her to work overtime.

In September 2002, Richardson sued Monitronics for violating her rights under the FMLA. Specifically, Richardson alleged that (1) Monitronics unlawfully denied her FMLA leave from January to March 2002 and unlawfully disciplined her for absences incurred during that period, and (2) Monitronics restricted her ability to work overtime in retaliation for taking FMLA leave. The district court found no violation of Richardson's FMLA rights, and we affirmed.

C. Chronological Background Underlying the Present Suit

1. April 2003: Oral Warning

Richardson continued to have attendance problems in addition to those at issue in her first lawsuit. In April 2003 alone, Richardson incurred four absences and five tardies. As a result, her supervisor, Demekia Green, issued Richardson an oral warning.

2. The New Monitronics Time and Attendance Policy

In May 2003, Monitronics instituted a new employee-attendance policy embodying a rolling 180-day period to evaluate employee attendance. Under this policy, one absence or two tardies constitutes an "occurrence." The policy specifies that arriving late, leaving early, exceeding a scheduled break, and violating the dress code count as "tardies." If, in any 180-day period, an employee incurs an "occurrence," Monitronics issues an oral warning; two "occurrences" result in a written warning; three "occurrences" warrant a final warning; and four "occurrences" are cause for termination. The policy expressly states that employees may not leave work early without a supervisor's approval, and that employees must request supervisory approval to be absent from work at least 48 hours in advance. FMLA leave is not considered an occurrence for the purposes of the attendance policy.

3. May 2003: Written Warning

Early in May 2003, Richardson incurred four "tardies" — May 2 (leaving early), May 7 (leaving early), May 7 (exceeding her scheduled break), and May 8 (away from her desk for an unacceptable period of time). This earned her two "occurrences" under the policy. Green issued a written warning to Richardson.

4. Richardson's Request for FMLA Leave

On May 28, 2003, Richardson completed paperwork requesting intermittent FMLA leave because of her carpal tunnel syndrome. She did not, however, specify the dates on which she would need leave. Monitronics's Human Resources manager, Regina Sconyers, nevertheless approved Richardson's request.

5. Summer 2003: Final Warning

From the end of May 2003 to August 2003, Richardson was tardy five times: May 28, June 2, June 5, June 23, and August 20. She contested the May 28, June 2, and June 23 tardies as pre-approved by her "lead," Dora Duran. Richardson provided documentation — Duran's calendar for June — that her June 23 tardy was pre-approved. As the calendar shows that "Pam left per F.M.L.A.," Monitronics removed that tardy from her record. The calendar did not include the same notation for the other disputed date in June, however, and Richardson presented nothing else to substantiate her claim that Duran had approved the other disputed tardies. Accordingly, Monitronics did not remove those tardies from Richardson's attendance record. In the end, Richardson's record reflected that she was tardy four times. Richardson thus accrued two more "occurrences" over the summer, bringing her total number of "occurrences" under the policy to four. Green issued Richardson a final warning, which stated that a repeat violation would result in immediate termination.

6. October 2003: Termination

On October 21, 2003, Richardson incurred her final infraction. That day, Monitronics sponsored a self-defense workshop. The details on the informational flyer recommended loose-fitting clothing for the workshop, so Richardson wore a polo shirt to the session. She returned to her shift after the workshop without changing her clothes. As polo shirts are expressly prohibited under the Monitronics dress code, Richardson was sent home. By this time, Richardson had accrued four and a half "occurrences." Monitronics suspended Richardson for three days to determine the appropriate course of action with regard to her continued employment with the company. When Richardson's suspension ended, Monitronics fired her.

D. The Present Lawsuit

After her termination, Richardson sued Monitronics alleging that she was fired in retaliation for her first FMLA lawsuit. Monitronics filed a motion for summary judgment to have the suit dismissed, assuming for the sake of argument that Richardson had established a prima facie case of retaliation under the FMLA, and the court, employing the traditional McDonnell-Douglas burden-shifting framework, granted Monitronics's motion on the ground that Richardson failed to present sufficient evidence to rebut Monitronics's assertion that it fired her for attendance policy violations. On appeal, Richardson contends that the district court should have applied the "modified" McDonnell-Douglas framework — otherwise known as the "mixed-motive" framework — to her case. She argues that, even though retaliation was not the sole reason for her termination, it was a motivating factor in it. Richardson further contends that, under the mixed-motive framework, Monitronics is not entitled to summary judgment. We have appellate jurisdiction under 28 U.S.C. § 1291.

II. ANALYSIS

A. Standard of Review

We review the district court's grant of summary judgment in favor of Monitronics de novo.² We will affirm the district court if there is no genuine issue of material fact, and Monitronics is entitled to summary judgment as a matter of law.³ We consider the evidence in a light most favorable to Richardson, the non-movant, but she must point to evidence showing that there is a genuine fact issue for trial.⁴

B. The FMLA

The FMLA prohibits employers from "interfer[ing] with, restrain[ing], or deny[ing] the exercise or the attempt to exercise, any right provided under" the act.⁵ Concomitantly, the FMLA prohibits employers from "discharg[ing] or in any other manner discriminat[ing] against an individual for opposing any practice made unlawful" by the act.⁶ To make a prima facie case of retaliatory discharge, the employee must show that (1) she engaged in a protected activity, (2) the employer discharged her, and (3) there is a causal link between the protected activity and the discharge.⁷

When there is no direct evidence of discriminatory intent, we have typically relied on the familiar McDonnell-Douglas burden shifting framework to determine whether an employer discharged an employee in retaliation for participating in FMLA-protected activities.⁸ Specifically, once the employee establishes a prima facie case of retaliation, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.⁹ If the employer succeeds in doing so, the burden shifts back to the employee to show by a preponderance of the evidence that the employer's articulated reason is a pretext for discrimination.¹⁰ Here, the district court granted Monitronics's motion for summary judgment under the traditional McDonnell-Douglas framework, concluding that Richardson failed to prove, by a preponderance of the evidence, that Monitronics fired her in retaliation for exercising her FMLA rights.

The traditional McDonnell-Douglas framework does not always apply in FMLA retaliatory discharge cases, however. The mixed-motive framework applies to cases in which the employee concedes that discrimination was not the sole reason for her discharge, but argues that discrimination was a...