Cerda v. Olin Corporation, A Virginia Corporation

UNITED STATES DISTRICT COURT June 09, 2023

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

GALVESTON DIVISION

ELIZABETH CERDA, §

§

Plaintiff. §

§

V. § CIVIL ACTION NO. 3:21-cv-00214

§

OLIN CORPORATION, et al., §

§

Defendants. §

OPINION AND ORDER

Pending before me are two competing motions: (1) a Motion for Summary

Judgment (Dkt. 28) filed by Defendant Blue Cube Operations, LLC (“Blue Cube”);

and (2) a Motion for Partial Summary Judgment (Dkt. 29) filed by Plaintiff

Elizabeth Cerda (“Cerda”). Having reviewed the parties’ briefing, the record, and

the applicable law, I GRANT Blue Cube’s Motion for Summary Judgment (Dkt.

28) and DENY Cerda’s Motion for Partial Summary Judgment (Dkt. 29).

BACKGROUND

Cerda originally instituted this employment action against Olin Corporation

(“Olin”) in Texas state court on July 14, 2021, alleging claims of sex discrimination,

sexual harassment, and retaliation. On August 13, 2021, Olin removed the case to

federal court on the basis of diversity jurisdiction. In doing so, Olin observed that

its subsidiary, Blue Cube, was Cerda’s employer, not Olin. On December 15, 2021,

Cerda filed an Amended Complaint against only Blue Cube, asserting her original

claims of sex discrimination, sexual harassment, and retaliation under Title VII of

the Civil Rights Act of 1964 (“Title VII”), and adding claims of Family Medical

Leave Act (“FMLA”) interference or, in the alternative, FMLA discrimination and

retaliation. Discovery has concluded. Blue Cube seeks summary judgment on all of

Cerda’s claims, while Cerda seeks summary judgment only on her FMLA-related

claims.

Before analyzing the parties’ competing motions, I will review the few

undisputed facts in this case. Cerda worked as a Cell Services Operator at Blue

Cube/Olin’s facility in Freeport, Texas (the “Freeport Facility”) from September

2006 until her employment was terminated on April 21, 2020.1 In December 2016,

Cerda took workers’ compensation leave after sustaining an on-the-job injury to

her foot. In August 2017, Cerda took FMLA leave while recovering from rotator

cuff surgery. Cerda exhausted all 12 weeks of FMLA-protected leave on February

6, 2018. Ultimately, Cerda was out on leave for approximately 18 months, though

Blue Cube allowed her to return to her employment in December 2018. In October

2018, while Cerda was still on leave, her team changed leadership and she began

reporting to Steven Gibbons (“Gibbons”). The parties do not dispute that Cerda

informed Gibbons about her father’s health issues at some point in 2018, with

Cerda telling Gibbons that she “was going to make more of an effort to go on [her]

lunch break to see [her father] to make sure he had his medicines and something

to eat . . . to hold him down until [she] got off work.” Dkt. 30-1 at 8. It is also

undisputed that at whatever time Cerda informed Gibbons about her father’s

health issues in 2018, Cerda was not yet eligible for FMLA leave—because she had

exhausted her entitlement in February 2018—and did not become FMLA-eligible

again until August 2019.

In January 2019, Cerda’s mother died. Cerda’s mother had been the primary

caregiver for Cerda’s father, who suffers from a variety of conditions that affect his

ability to care for himself, including dementia. In early 2020, Gibbons told HR

Manager Michelle Mulligan (“Mulligan”) that other workers had complained about

Cerda missing shifts. All operators receive a 30-minute unpaid lunch break every

day. “Blue Cube automatically deducts the 30 minutes for lunch from the

operators’ time and therefore operators are not expected to clock out/in for lunch

1 From September 2006 until late 2015, Cerda was an employee of Dow Chemical (“Dow”).

Olin purchased the Freeport Facility from Dow in late 2015, which marked the start of

Cerda’s employment with Blue Cube.

unless they know they will exceed their 30 minutes.” Dkt. 28 at 10. “On April 1,

2020, Mulligan pulled Cerda’s gate logs and time punch records for the previous

three months” and found “a pattern of Cerda missing from the facility for

approximately one hour or more each day around lunchtime, during at least part

of which time she was being paid.” Id. at 11. Specifically, Cerda “was paid for 99

hours and 10 minutes that she did not work.” Dkt. 28-17 at 5.

On March 17, 2020, during the timeframe that Mulligan was investigating

Cerda’s alleged time theft, Cerda called in sick to work, reporting a potential

exposure to Covid-19. On March 19, 2020, Cerda returned to work and asked which

time code to use for her two-day absence. Upon being told that she needed to use

personal sick days, Cerda became upset. The exact language that Cerda used in the

heat of the moment is disputed. What is not disputed, however, is that numerous

witnesses submitted written statements to Mulligan suggesting that Cerda

threatened to infect them if she became ill. Compare Dkt. 28-2 at 22 (Cerda

testified during her deposition: “What I did say was like, you know what, next time

I’m sick, I’m not even going to tell nobody but my leader.” (emphasis added)), with

Dkt. 28-13 at 2 (“She got angry and stated next time she would just come to work

and get all these mother fuckers sick.”), Dkt. 28-14 at 2 (“Next time I won’t say shit,

and hope all you motherf’ers get sick.”), Dkt. 28-15 at 2 (“Next time I hope a [sic]

get the coronavirus so I can give it to all you. I don’t give a shit!”), id. at 3 (“[N]ext

time I hope I really am sick and I’m going to come to work and I hope I get all of

y’all sick.”), id. at 4 (“She stated that she hopes that she gets the virus so she could

give it to all of us.”), and id. at 6 (“[Cerda] walked in frustrated about being sent

home, then proceeded to say that she should’ve just came to work and didn’t care

if she got anyone else sick.”).

On April 17, 2020, Mulligan convened an Employee Review Meeting with

HR Director Greg Cunningham (“Cunningham”), Texas Operations Site Leader

Kyle Shelton (“Shelton”), and the Director of Manufacturing for Cell Services Bert

Fleck (“Fleck”). After reviewing Mulligan’s investigation into Cerda’s time theft

and threats, and Mulligan’s recommendation that Cerda’s employment be

terminated, the group (Cunningham, Shelton, and Fleck) collectively decided to

terminate Cerda’s employment. Blue Cube officially terminated Cerda’s

employment on April 21, 2020.

Cerda does not dispute that she vented her frustration about missing work

due to Covid-19 concerns to her coworkers, or that she was paid for time that she

did not work. Rather, Cerda contends that she was terminated solely for time theft.

Additionally, Cerda argues that the time she did not work “should have been FMLA

protected.” Dkt. 31 at 14. Under Cerda’s theory, if her time was FMLA-protected,

then it cannot have been time theft, which would make Blue Cube’s reason for

firing her pretextual. Even if Cerda’s leave was not FMLA-protected, Cerda

maintains that time theft is nevertheless pretext for sex discrimination because

“literally 100% of males received zero punishment for extended lunches and 100%

of females were terminated for same.” Dkt. 31 at 24. Unrelated to her FMLA and

sex discrimination claims, Cerda also alleges that she suffered sexual harassment

and that her termination was retaliation for complaining of said harassment. I will

address each of Cerda’s claims in turn.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when “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 of material fact is “genuine” if the evidence would allow

a reasonable jury to find in favor of the nonmovant. See Rodriguez v. Webb Hosp.

Corp., 234 F. Supp. 3d 834, 837 (S.D. Tex. 2017). The movant “bears the initial

responsibility of informing the district court of the basis for its motion.” Brandon

v. Sage Corp., 808 F.3d 266, 269–70 (5th Cir. 2015) (quotation omitted). To defeat

a motion for summary judgment, the nonmovant must “present competent

summary judgment evidence to support the essential elements of its claim.”

Cephus v. Tex. Health & Hum. Servs. Comm’n, 146 F. Supp. 3d 818, 826 (S.D. Tex.

2015). The nonmovant’s “burden will not be satisfied by some metaphysical doubt

as to the material facts, by conclusory allegations, by unsubstantiated assertions,

or by only a scintilla of evidence.” Boudreaux v. Swift Transp. Co., 402 F.3d 536,

540 (5th Cir. 2005) (quotation omitted). Rather, the “nonmovant must identify

specific evidence in the record and articulate how that evidence supports that

party’s claim.” Brooks v. Houston Indep. Sch. Dist., 86 F. Supp. 3d 577, 584 (S.D.

Tex. 2015). In ruling on a motion for summary judgment, I must construe “the

evidence in the light most favorable to the nonmoving party and draw[] all

reasonable inferences in that party’s favor.” Darden v. Simplicity Fin. Mktg., Inc.,

No. 4:18-CV-1737, 2019 WL 6119485, at *1 (S.D. Tex. Nov. 18, 2019).

“Cross-motions must be considered separately, as each movant bears the burden

of establishing that no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law.” Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395

F.3d 533, 538–39 (5th Cir. 2004).

ANALYSIS

A. CERDA’S FMLA INTERFERENCE CLAIM

Cerda alleges that she “was entitled to FMLA leave to care for her father” and

that Blue Cube “interfered with Cerda’s entitlement to FMLA leave.” Dkt. 16 at 5.

The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny

the exercise of or the attempt to exercise, any right provided” by the FMLA. 29

U.S.C. § 2615(a)(1). To establish a prima facie FMLA interference claim, Cerda

must show that:

(1) [s]he was an eligible employee; (2) h[er] employer was subject to

FMLA requirements; (3) [s]he was entitled to leave; (4) [s]he gave

proper notice of h[er] intention to take FMLA leave; and (5) h[er]

employer denied h[er] the benefits to which [s]he was entitled under

the FMLA.

Caldwell v. KHOU-TV, 850 F.3d 237, 245 (5th Cir. 2017). In its own motion for

summary judgment, Blue Cube disputes only the fourth and fifth elements. In its

response to Cerda’s motion for partial summary judgment, however, Blue Cube

also disputes the first and third elements. I will address each disputed element of

Cerda’s FLMA interference claim in turn.

1. Cerda Was Eligible for FMLA Leave (Element 1)

Employees are not eligible for FMLA leave until they have been employed

“for at least 12 months by the employer with respect to whom leave is requested”

and have worked “at least 1,250 hours of service with such employer during the

previous 12-month period.” 29 U.S.C. § 2611(2)(A). Cerda does not dispute that she

only became eligible for FMLA leave again on August 7, 2019, having exhausted

her previous entitlement in February 2018. Blue Cube does not dispute that Cerda

was eligible for FMLA leave in 2020 during the time period in which Blue Cube

alleges that Cerda committed time theft and for which Blue Cube ultimately

terminated her employment. Accordingly, the parties do not actually dispute the

first element: Cerda’s FMLA eligibility.

What the parties disagree on is how Cerda’s FMLA eligibility affects the

fourth element: notice. Blue Cube argues that the fact “[t]hat [Cerda] made

Gibbons aware of her father’s health issues in 2018 . . . is irrelevant to her FMLA

interference claim, as she was not eligible for FMLA leave at all at the time.” Dkt.

30 at 11–12. Cerda counters that Gibbons was aware of her father’s health issues

“[f]rom at least 2018 until her termination in 2020,” which put Blue Cube on notice

of her need for FMLA leave. Dkt. 37 at 11; see also Dkt. 29 at 9 (“Cerda informed

her supervisor that beginning at least as early as 2018 that her father had a serious

health condition . . . . Thus, there can be no question that Cerda provided

‘sufficient information’ to inform [Blue Cube] that she was caring for her ailing

father who was unable to perform normal daily activities and was incapacitated for

weeks following his hemorrhage.”). As I explain below, the fact that Cerda was not

eligible for FMLA leave when she first told Gibbons about her father’s health issues

is irrelevant to whether Cerda gave proper notice of her intention to take FMLA

leave because Cerda never requested or took leave of any kind—FMLA or

otherwise.

2. Cerda Was Entitled to FMLA Leave (Element 3)

The FMLA provides “a total of 12 workweeks of leave during any 12-month

period . . . [i]n order to care for the spouse, or a son, daughter, or parent, of the

employee, if such spouse, son, daughter, or parent has a serious health condition.”

29 U.S.C. § 2612(a)(1)(C). Blue Cube does not dispute that Cerda’s father has a

serious health condition. Rather, Blue Cube disputes whether Cerda’s lunchtime

visits to her father fall within the statutory meaning of “to care for.” “There are no

regulations specifically interpreting 29 U.S.C. § 2612(a)(1)(C). There is, however, a

regulation interpreting a closely related provision concerning health-care provider

certification.” Ballard v. Chicago Park Dist., 741 F.3d 838, 841 (7th Cir. 2014)

(citing 29 U.S.C. § 2613(b)(4)(A), which describes what is required for a medical

provider to certify that “the eligible employee is needed to care for” a family

member “for purposes of leave under § 2612(a)(1)(C)”). That regulation provides:

The medical certification provision that an employee is needed

to care for a family member or covered servicemember encompasses

both physical and psychological care. It includes situations where, for

example, because of a serious health condition, the family member is

unable to care for his or her own basic medical, hygienic, or nutritional

needs or safety, or is unable to transport himself or herself to the

doctor. The term also includes providing psychological comfort and

reassurance which would be beneficial to a child, spouse or parent

with a serious health condition who is receiving inpatient or home

care.

29 C.F.R. § 825.124(a).

Blue Cube advances two arguments for why Cerda was not entitled to FMLA

leave. First, Blue Cube argues that “the record evidence does not support that

Cerda qualified for FMLA leave related to her father’s serious health condition once

she became eligible in August 2019, as Cerda testified her father could largely care

for himself while she was still employed with Blue Cube.” Dkt. 30 at 12. Second,

Blue Cube argues that even “when [Cerda’s] father did need some assistance, he

had other caretakers during her employment, including her daughter, mother,

sisters, and a hired caregiver.”2 Id. The latter of these two arguments implicitly

concedes that, regardless of whether Cerda’s father could care for himself in 2018

or 2019, by the time Blue Cube terminated Cerda’s employment in 2020 for time

theft, Cerda’s father did, in fact, need assistance. This concession, coupled with the

fact that Blue Cube did not dispute Cerda’s entitlement in its own motion for

summary judgment, shows me that Blue Cube is not seriously disputing this

element. Regardless, at a minimum, Cerda’s testimony that she would take her

father to his medical appointments and visit him on her lunch breaks to “mak[e]

sure that he had something to eat” and to “take his medicine” and “to make sure

that he wouldn’t fall” creates a genuine fact issue as to whether Cerda’s father

suffered from a serious health condition that would have entitled Cerda to FMLA

leave in 2020. Dkt. 30-1 at 9.

3. Cerda Did Not Give Proper Notice of Her Intention to Take

FMLA Leave (Element 4)

The FMLA regulations state that “[a]n employee must provide the employer

at least 30 days advance notice before FMLA leave is to begin if the need for the

leave is foreseeable.” 29 C.F.R. § 825.302(a). “An employer may require an

employee to comply with the employer’s usual and customary notice and

procedural requirements for requesting leave, absent unusual circumstances.” Id.

§ 825.302(d). “An employee also may be required by an employer’s policy to

contact a specific individual.” Id. “Where an employee does not comply with the

employer’s usual notice and procedural requirements, and no unusual

2 There are numerous problems with this argument. To start, it’s utterly ridiculous for

Blue Cube to suggest that Cerda’s mother was an available caretaker once Cerda’s father

did need some assistance given that the record shows his condition worsened only after

Cerda’s mother died. I also find it quite problematic that Blue Cube just papers over the

fact that two of Cerda’s three sisters do not live anywhere near Freeport, Texas. One lives

approximately 200 hundred miles away in Austin, Texas, and the other lives more than

1,000 miles away in Flagstaff, Arizona. Finally, Blue Cube cites to no law—and I am

unaware that any law exists—suggesting that an employee is not entitled to FMLA leave

simply because they have a support network.

circumstances justify the failure to comply, FMLA-protected leave may be delayed

or denied.” Id.

The Fifth Circuit has explained the notice requirement as follows:

Although an employee need not use the phrase “FMLA leave,”

she must give notice that is sufficient to reasonably apprise her

employer that her request to take time off could fall under the

FMLA. This court does not apply categorical rules for the content of

the notice; instead we focus on what is practicable based on the facts

and circumstances of each individual. An employer may have a duty

to inquire further if statements made by the employee warrant it, but

the employer is not required to be clairvoyant.

Lanier v. Univ. of Tex. Sw. Med. Ctr., 527 F. App’x. 312, 316 (5th Cir. 2013)

(emphasis added) (cleaned up). I have emphasized the words “request to take time

off” because that is the one thing that Cerda indisputably never did—request or

take leave of any kind. Cerda’s arguments revolve entirely around Blue Cube being

on notice of her need for leave. It is true that Blue Cube is obligated to determine

whether requested leave qualifies under the FMLA, see 29 C.F.R. § 825.302(c),

but no employer has an obligation to offer an employee time away from work that

the employee has not requested. Cerda’s failure to request leave of any kind—

personal, medical, FMLA, or otherwise—is fatal to her claim.

Cerda argues that “[Gibbons]’s declaration was unequivocal that [Blue

Cube] had notice that Cerda needed time off to care for her ailing father.” Dkt. 31

at 7 (citing 29-7 ¶¶ 4–5). But the fact that Gibbons knew “that Cerda would

frequently visit [her father] during lunch and other times during work hours to

care for him and that she was responsible for taking him to his doctor’s

appointments” (Dkt. 29-6 at 2) is not the same thing as Cerda requesting leave—

again, leave of any kind, not just FMLA leave—to undertake these activities.

Critically missing from Gibbons’s declaration is any indication that Cerda ever

asked Gibbons to take time off to care for her father. To the contrary, Cerda

testified that she never asked Gibbons for FMLA leave to care for her father. See

Dkt. 28-2 at 12. Cerda also readily admitted that she never asked Gibbons for

additional time over the lunch break to see her father. See Dkt. 36-1 at 7. Indeed,

the most Cerda ever told Gibbons regarding her visits to her father was that she

“was going to make more of an effort to go on [her] lunch break to see [her father]

to make sure he had his medicines and something to eat . . . to hold him down until

[she] got off work.” Dkt. 30-1 at 8. But telling Gibbons that she was going to care

for her father on her lunch break is a far cry from requesting time off work

beyond her lunch break.

Cerda argues that “the federal regulations plainly put the burden on

employers to provide employees with FMLA-related notices and information,”

which were not provided to Cerda. Dkt. 31 at 11 (quoting 29 C.F.R. § 825.300)).

But the relevant text of those regulations betrays Cerda’s argument, for the

employer’s obligation is triggered only “[w]hen an employee requests FMLA

leave, or when the employer acquires knowledge that an employee’s leave may be

for an FMLA-qualifying reason.” 29 C.F.R. § 825.300(b)(1) (emphasis added). The

fact that Cerda repeatedly took time beyond her allotted 30-minute lunch break

and accepted pay for that time that she did not work, coupled with her failure to

muster any evidence suggesting that she asked Gibbons for leave of any kind

(vacation, sick leave, etc.) to care for her father, is dispositive of this element and

Cerda’s FMLA interference claim. See, e.g., Lanier, 527 F. App’x. at 317 (rejecting

plaintiff’s argument that her supervisor’s knowledge of her father’s poor health

“was sufficient to apprise [plaintiff’s supervisor] of her intent to request FMLA

leave to care for her father”).

Cerda makes much ado of Mulligan’s testimony that an “employee just

has to mention that they may have a serious health condition for

themselves . . . [or] a parent . . . that meets the [] qualifications for FMLA leave” to

put Blue Cube “on notice to follow up.” Dkt. 37 at 15 (emphasis in original) (quoting

Dkt. 29-4 at 71–72). Mulligan did say that, but Mulligan also testified that if an

“employee has a family member that they need to provide some form of care

for . . . they have to ask – or not – they need to request – make us aware

for their request or need for leave.” Dkt. 29-4 at 91 (emphasis added). Accordingly,

Cerda’s argument that she also “raised her father’s health to [Mulligan]” (Dkt. 29

at 3) is equally unavailing. “While [Cerda] did inform [Gibbons and Mulligan] of

her father’s serious diagnosis, she did not communicate that she needed time off

to care for him.” Nicholson v. Pulte Homes Corp., 690 F.3d 819, 827 (7th Cir. 2012)

(affirming summary judgment for employer where plaintiff’s conversations with

her supervisor regarding her father’s cancer “were too indefinite to put [the

employer] on FMLA inquiry notice”).

The bottom line is this: Cerda did not have to say that she wanted FMLA

leave, but she did have to request time off work. Nothing in the record indicates

that she ever made such a request to anyone at Blue Cube. Again—and really, I

cannot stress this enough—Cerda never took leave of any kind to care for her

father. She simply left at her lunch break, took longer than the time allotted, and

never accounted for the time for which she was not working but was being paid.

Against these facts, Cerda simply cannot establish that she provided proper notice

of her intention to take FMLA leave as required to succeed on her FMLA

interference claim.3 Because Cerda cannot establish this necessary element, I must

grant summary judgment to Blue Cube on Cerda’s FMLA interference claim.

B. CERDA’S FMLA RETALIATION CLAIM

In addition to alleging interference with her FMLA rights, Cerda alleges that

her termination was in retaliation “for issues that should have been protected as

FMLA leave.” Dkt. 16 at 5. “To make a prima facie case [of retaliation under the

FMLA], [Cerda] must establish three elements: (1) she engaged in FMLA-

protected activity, (2) [her employer] discharged her, and (3) a causal link between

3 For this reason, I need not discuss the fifth element. Blue Cube cannot have denied Cerda

leave that she never requested. Nor do I reach Cerda’s argument that Blue Cube failed to

comply “with the requirements of the stop-gap regulation, 29 C.F.R. § 825.301(d).” Dkt.

31 at 12. The stop-gap regulation also requires that an employee “state a qualifying reason

for the needed leave and otherwise satisfy the notice requirements,” 29 C.F.R.

§ 825.301(b), which Cerda categorically has not done.

the protected activity and the discharge.” Watkins v. Tregre, 997 F.3d 275, 284

(5th Cir. 2021).

FMLA discrimination and retaliation claims follow the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Watkins, 997 F.3d at 283–86 (applying the McDonnell Douglas burden-shifting

framework to both Title VII and FMLA claims). Under that framework, the plaintiff

must first establish her prima facie case of discrimination or retaliation. Then, the

burden shifts to the employer “to proffer a legitimate, nondiscriminatory [or

nonretaliatory] reason” for its adverse employment action. Id. at 281. If the

employer proffers such a reason, “the presumption of discrimination [or

retaliation] disappears, and [the plaintiff] must then produce substantial evidence

indicating that the proffered . . . reason is a pretext for discrimination [or

retaliation].” Id. at 282 (cleaned up). “The plaintiff must put forward evidence

rebutting each of the nondiscriminatory [or nonretaliatory] reasons the employer

articulates.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001)

(emphasis added).

“A plaintiff may establish pretext either through evidence of disparate

treatment or by showing that the employer’s proffered explanation is false or

unworthy of credence.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)

(quotation omitted). “[T]o establish disparate treatment a plaintiff must show that

the employer gave preferential treatment to another employee under nearly

identical circumstances; that is, that the misconduct for which the plaintiff was

discharged was nearly identical to that engaged in by other employees.” Okoye v.

Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001) (cleaned

up). “An explanation is false or unworthy of credence if it is not the real reason for

the adverse employment action.” Laxton, 333 F.3d at 578.

1. Prima Facie Case: Cerda Did Not Engage in an

FMLA-Protected Activity and Cannot Establish a Causal

Link

Having already found that Cerda did not provide proper notice of her

intention to take FMLA leave, I cannot find that Cerda engaged in an

FMLA-protected activity. See Render v. FCA US, LLC, 53 F.4th 905, 920 (6th Cir.

2022) (“It is the request that is protected activity.”); Abdulbaki v. Regent Care Ctr.

of San Antonio II, Ltd. P’ship, No. SA-11-CV-00211, 2012 WL 1076206, at *12

(W.D. Tex. Mar. 29, 2012) (“Plaintiff did not engage in a protected activity because

he never actually applied for FMLA leave.”); Knox v. City of Monroe, No. CIV. A.

07-606, 2009 WL 57111, at *7 (W.D. La. Jan. 8, 2009) (granting summary

judgment to employer on plaintiff’s FMLA retaliation claim where the plaintiff “did

not request, attempt to request, or give notice of her intent to apply for FMLA leave

any time prior to her termination”). Nevertheless, Cerda cites Watkins for the

proposition that “apprising an employer of a parent’s serious health condition—

even if the employee does not specifically request ‘FMLA leave’—constitutes

protected activity under the FMLA.” Dkt. 31 at 13. It is true that the plaintiff in

Watkins did not specifically request FMLA leave, but she did give her bosses a

“doctor’s note stating that . . . she required three days off per week” and sent them

“an email asking when her requested medical leave was supposed to start.” 997

F.3d at 284. In stark contrast here, Cerda never requested any leave of any kind—

personal, medical, FMLA, or otherwise. Cerda’s failure to request time off work is

fatal to both the first and third elements of her prima facie FMLA retaliation claim.

Because Cerda did not engage in an FMLA-protected activity, she cannot establish

a causal link between that nonexistent activity and her termination. Thus, Cerda

cannot establish a prima facie case of FMLA retaliation.

But even if I assume that Cerda engaged in FMLA-protected activity and

could make out a prima facie case, there is a separate and independent reason for

granting summary judgment to Blue Cube on Cerda’s FMLA retaliation claim:

Cerda has not produced substantial evidence that Blue Cube’s legitimate,

nonretaliatory reasons for terminating her employment are pretext.

2. Cerda Has Not Offered Substantial Evidence of Pretext

Blue Cube argues that it discharged Cerda for two legitimate, nonretaliatory

reasons: time theft and threatening her coworkers. Cerda does not dispute that

time theft and threatening coworkers are legitimate, nonretaliatory reasons for

discharging an employee. Rather, Cerda offers 11 reasons why Blue Cube’s

proffered reasons for terminating her are pretextual. See Dkt. 37 at 26–27. I will

address each argument in turn.

Reason (1): “the evidence shows that Mulligan was the [true]

decisionmaker.” Id. at 26. As noted, Blue Cube maintains that three individuals

(Cunningham, Shelton, and Fleck, collectively) made the decision to terminate

Cerda. Cerda responds by arguing that she can establish pretext because Mulligan

was actually the person who decided to terminate Cerda. This argument is based

on nothing more than the fact that Mulligan is the one who processed Cerda’s

termination in Olin/Blue Cube’s HR Central Data Management system. See Dkt.

31-7 at 2. Mulligan testified that she did not make the decision to terminate Cerda—

she completes this form simply “to notify benefits and payroll that an employee

has been separated so that they can then make sure that the employee is paid in a

timely manner and sen[d] the COBRA notices that are necessary.” Dkt. 29-4 at

128–29. The summary judgment evidence conclusively establishes that

Cunningham, Shelton, and Fleck—not Mulligan—made the decision to terminate

Cerda. See Dkt. 28-18 at 2; Dkt. 28-19 at 2; Dkt. 28-20 at 3. The fact that Mulligan

processed Cerda’s termination within an HR system is not substantial evidence of

pretext.

Reason (2): “Mulligan was the driving force of the termination.”

Dkt. 37 at 26. In support of this argument, Cerda cites to her termination

documentation and the fact that Mulligan recommended Cerda’s termination at

the Employee Review Meeting. Dkt. 31 at 15–16. But the driving force of Mulligan’s

investigation was that Gibbons reported Cerda to Mulligan for suspected time

theft. See Dkt. 28-3 at 5 (“Gibbons came to [Mulligan] to report that some of

Cerda’s coworkers had complained about Cerda disappearing from work during

shifts, leaving her coworkers to perform her work.”). Moreover, Cerda has failed to

produce any evidence to suggest that Cunningham, Shelton, and Fleck did not

make the decision to terminate Cerda’s employment. But even if Mulligan was the

driving force of Cerda’s termination, I fail to see how that demonstrates that Blue

Cube’s stated reasons for terminating Cerda’s employment are pretext. Cerda has

not even attempted to articulate retaliatory animus or motive on Mulligan’s part,

as required to sustain a “cat’s paw theory of liability.” Zamora v. City of Houston,

798 F.3d 326, 331 (5th Cir. 2015).

Reason (3): “Gibbons and Mulligan both claim that Cerda was

terminated [only] for ‘theft of time.’” Dkt. 37 at 26. Cerda claims that two

pieces of evidence support this argument. First, Cerda points to an isolated

sentence in Gibbons’s first declaration in which he states that “Cerda was

terminated for theft of time in April 2020.” Dkt. 29-6 at 2. This sentence is not

substantial evidence of pretext because (1) Gibbons was not one of the individuals

who made the decision to terminate Cerda; and (2) even if he were, stating that

Cerda was terminated for theft of time is not mutually exclusive with

Cunningham’s, Shelton’s, Fleck’s, and Mulligan’s statements that Cerda was also

terminated for threats against her coworkers.

Second, Cerda points to Mulligan’s deposition, in which Mulligan remarked

that “[w]hat led to [Cerda’s] termination was theft of time.” Dkt. 29-4 at 117. Again,

this statement is not mutually exclusive with having also terminated Cerda for

threats against her coworkers. Moreover, reading this testimony in context shows

that Cerda’s counsel was questioning Mulligan about “issues with [Cerda’s] gate

logs,” not anything having to do with the threats against Cerda’s coworkers. Id.

Substantial evidence is required to controvert the sworn affidavits stating that the

“decision to terminate Ms. Cerda’s employment was based entirely on [Mulligan]’s

investigation showing months of time-theft by Cerda and that she had threatened

her coworkers.” Dkt. 28-18 at 3; Dkt. 28-19 at 3 (same); see also Dkt. 28-20 at 3

(“Shelton, Fleck, and I then discussed Mulligan’s findings and determined that

Cerda’s behavior violated several Olin/Blue Cube policies and warranted

termination of her employment.”). Cerda has not pointed to any evidence that

would show Cunningham, Fleck, and Shelton terminated Cerda solely for theft of

time and not also for making threats to her coworkers.

Reason (4): “during the grievance hearing, only ‘theft of time’ was

addressed.” Dkt. 37 at 26. Cerda argues that in a grievance proceeding she filed

after her termination, “the lone reason for her termination [was] theft of time.”

Dkt. 31 at 18 (citing Dkt. 29-3 at 182). This argument is based on Cerda’s testimony

that “It was about my time is what I was terminated . . . because of taking longer

lunches during company time.” Dkt. 29-3 at 182. This argument is unavailing for

many reasons. First, reading the testimony in context shows that the questioner

expressly disclaimed asking about the grievance meeting. See id. at 181 (“I think

you may be thinking about a grievance meeting later. I’m talking about the day that

you were suspended.”). Moreover, Cerda cut the questioner off as the questioner

asked: “Was there any discussion in that meeting that you can recall about the

reasons for termination, about, you know, other people taking long lunches

or --” Id. at 182 (emphasis added). Two, Cerda testified that she discussed

comments related to Covid-19 at that meeting. Dkt. 29-3 at 181; see id. at 182 (“The

only thing I could think of is whenever I was talking to them and she was telling

me that these people felt like I was – well I’m sorry if they think that, but that’s not

intentions. I would never hurt anybody in any way with COVID, you know. And

that’s what – I was trying to refer to that.”). Finally, Cerda’s testimony that she

“was terminated . . . because of taking longer lunches during company time,” id., is

not mutually exclusive of her also being terminated for threats against her

coworkers. It certainly is not substantial evidence that the affidavits of

Cunningham, Fleck, and Shelton are pretextual.

Reason (5): “Mulligan ‘conducts sham investigations to support

predetermined conclusions.’” Dkt. 37 at 26. This statement comes from

Gibbons’s second declaration. The full paragraph reads:

I am familiar with Mulligan conducting workplace

investigations. In my experience, Mulligan starts her investigation

with a conclusion and then attempts to build an investigative file that

supports her already-made conclusion. She then asks interviewees

leading questions to obtain answers she desires. Based on my

experience as a supervisor and participating in numerous workplace

investigations, such investigations must be performed carefully so as

to not inform the interviewee about the nature of the information

sought to the extent possible.

Dkt. 31-1 at 1. This statement, even if true, is irrelevant, because it has no

connection to Mulligan’s investigation of Cerda’s time theft or threats against her

coworkers. Gibbons does not state that Mulligan’s investigation of Cerda’s time

theft—an investigation that was initiated based on his report to Mulligan—was a

sham, or that the numerous witness affidavits that Mulligan gathered regarding

Cerda’s threats against her coworkers were fabricated. This statement is not

relevant, and it certainly is not substantial evidence that the affidavits of

Cunningham, Fleck, and Shelton are pretextual.

Reason (6): “[Blue Cube] spoliated important evidence.” Dkt. 37 at

26. This is a very serious allegation that, if Cerda’s counsel actually believed it to

be true, should form the basis of a motion for sanctions. A review of the record,

however, shows that this allegation is entirely baseless. Cerda argues that she “was

informed that if they pulled everyone’s ‘gate logs,’ the entire Texas Cell Services

group would be terminated.” Dkt. 31 at 19. This argument is based on a portion of

Cerda’s own deposition testimony. This testimony is inadmissible hearsay. Cerda

is repeating something said to her by Charles Singletary (“Singletary”), who was

the “main guy from the union department, from Union 564.” Dkt. 29-3 at 122.

Singletary was not a Blue Cube employee. See id. Accordingly, his statements are

not the statement of a party opponent and are thus inadmissible hearsay. But even

if this statement were admissible, it is irrelevant because Singletary was not

speaking as a Blue Cube employee or as a legal representative of Blue Cube

responding to Cerda’s discovery requests. Accordingly, this baseless allegation

does not establish pretext.

Reason (7): “[Blue Cube] violated its own retention policies.” Dkt.

37 at 26. Cerda argues “that the ‘gate logs’ were not preserved by [Blue Cube]” even

though “[Blue Cube]’s own policy states that the ‘gate logs’ should have been

retained for eight (8) years.” Dkt. 31 at 20. This is, again, an entirely baseless

argument as it overlooks Mulligan’s affidavit, which states:

Although Olin purchased the plants from Dow in 2015, Dow still

owns the land and the overall worksite. Dow controls access to and

from the worksite using manned security gates at the front entrance

that Blue Cube employees are required to drive through and swipe

their badge. The gate logs that are created reflecting the

dates and times of entry and exit belong to Dow and do not

belong to Blue Cube or Olin. If Blue Cube wishes to see the logs

for a particular individual, we have to request them and pay Dow a

nearly $3,000 fee for someone at Dow to compile the logs.

Additionally, my understanding is that the logs only go back

three months, so we are limited in what we can receive in response

to our request.

Dkt. 28-3 at 5 (emphasis added). Accordingly, it would be patently unreasonable

for a jury to “infer that [Blue Cube] intentionally destroyed the records as part of a

cover-up,” Dkt. 31 at 20, because Blue Cube indisputably does not control the

records in question. This argument does not move the pretext needle at all.

Reason (8): “there were approximately 223 times that employees

other than Cerda took longer than thirty-minute lunches.” Dkt. 37 at 26.

In support, Cerda attaches to her response a

subset of data [that] consists of “gate logs” for sixteen (16) employees

who were members of the Texas Cell Services group and is limited in

time to the months leading up to Cerda’s termination and part of

2022, when [Blue Cube] changed its practice of allowing one-hour

lunches to a strict practice of only thirty-minute lunches.

Dkt. 31 at 21. Cerda argues that in this subset, “there were approximately 223 times

that employees other than Cerda took lunches that were longer than thirty (30)

minutes.” Id. Cerda makes this argument in an attempt to establish disparate

treatment, which is one way to establish that Blue Cube’s proffered reasons for

terminating Cerda are pretext. To establish disparate treatment, Cerda must show

that these employees are “nearly identical” to her. Okoye, 245 F.3d at 514

(collecting cases).

Cerda contends that all 16 of these employees reported to Gibbons, were

subject to the same lunch policy as Cerda, and worked the same shift as Cerda, yet

none of these employees adjusted their time after taking longer than a 30-minute

lunch break. I will assume this is true,4 but it does not establish that these

employees were similarly situated to Cerda. First, Cerda does not state whether any

of these employees also made threats against their coworkers. See id. (“[T]o

establish disparate treatment a plaintiff must show that the employer gave

preferential treatment to another employee under nearly identical circumstances;

that is, that the misconduct for which the plaintiff was discharged was nearly

identical to that engaged in by other employees.” (cleaned up)).

Second, in “64 days of time data collected,” Cerda “was paid for 99 hours

and 10 minutes that she did not work.” Dkt. 28-17 at 5–6. But Cerda tellingly does

not include her own gate logs in the subset of data that she attaches to her response.

Nor does she offer an analysis of how much time each of these 16 employees

allegedly stole. Thus, there is no way to compare Cerda’s undisputed time theft of

more than two weeks’ worth of work with the alleged time theft of these other

workers. For example, did these other employees steal anything close to 99 hours

and 10 minutes of time, or were they all a few minutes late every now and again,

such that their total stolen time was de minimis? Without this information, there

is no way to know whether any of these employees are suitable comparators.

Reason (9): “no one else was disciplined or fired for long lunches

despite the 223 times that other employees did so.” Dkt. 37 at 26. I will

4 I will also overlook the fact that time entries from 2022—more than a year after Cerda

was terminated—are entirely irrelevant to this lawsuit.

assume, arguendo, that this statement is true, but for all the reasons stated above,

it does not suggest pretext. Without more information, there is simply no way of

knowing whether any of these other employees are fair comparators to Cerda.

Remember, at this stage, it is Cerda who bears the burden to come forward with

substantial evidence showing that the legitimate, nonretaliatory reasons for

terminating her employment are pretext. See Watkins, 997 F.3d at 282.

Reason (10): “since the gate logs have been produced, [Blue Cube]

still has not disciplined any of those employees, because it is not a real

policy violation.” Dkt. 37 at 26–27. Again, I will assume, arguendo, that this is

a true statement, but absent evidence showing that these employees are nearly

identically situated to Cerda, it simply does not matter.

Reason (11): “the temporal proximity is a matter of days.” Id. at 27.

This argument appears to relate to this assertion from Cerda’s response to Blue

Cube’s motion for summary judgment: “given the short two-week gap between her

termination and her complaints of sexual harassment, causation is satisfied by

temporal proximity alone.” Dkt. 31 at 25. But Cerda must establish “a causal link

between the [FMLA] protected activity and the discharge.” Watkins, 997 F.3d at

284. Complaining of sexual harassment is not an FMLA-protected activity. Thus,

the fact that Cerda complained of sexual harassment days before being terminated

for time theft and making threats to her coworkers bears no relation whatsoever to

Cerda’s FMLA retaliation claim.5

Cerda makes one final attempt at demonstrating pretext, arguing that

“[n]one of the declarations of the alleged ‘decisionmakers’ indicate that the

supposed COVID threats alone were sufficient for Cerda’s termination,” meaning

5 Even if Cerda’s complaint of sexual harassment had some bearing on her FMLA

retaliation claim, temporal proximity between termination and protected activity is

sufficient only for a prima facie case, as the cases that Cerda cites acknowledge. See Dkt.

31 at 25–26 (collecting cases). But we are at the point in the burden-shifting framework

where it has come back to Cerda to proffer “substantial evidence” that Blue Cube’s reasons

are pretext. Temporal proximity does not get Cerda over that hump.

that “the two purported reasons were not independently sufficient for

termination.” Dkt. 37 at 27 (emphasis in original). I appreciate the creativity of this

argument, but there is tellingly no case law cited in support. More importantly, this

argument rests upon the assumption that “Cerda has dismantled the theft of time

reason.” Id. at 28. Because Cerda has not provided a nearly identical comparator,

she has not dispensed with the theft of time reason. So, it matters not whether theft

of time and making threats against coworkers are independent and sufficient

reasons for terminating Cerda’s employment. Cerda cannot establish that Blue

Cube’s proffered legitimate, nonretaliatory reasons for terminating her

employment—time theft and threats to her coworkers—are pretext.6 Accordingly,

I must award summary judgment to Blue Cube on Cerda’s FMLA retaliation claim.

C. CERDA’S TITLE VII SEX DISCRIMINATION AND RETALIATION CLAIMS

Cerda also brings claims of sex discrimination and retaliation under Title

VII. I assume, arguendo, that Cerda can prove a prima facie sex discrimination

claim because she was the only female terminated for taking long lunches, whereas

men who took long lunches were not terminated. I also assume, arguendo, that

Cerda can prove a prima facie retaliation claim because she complained about

sexual harassment and was terminated shortly thereafter. Nevertheless, Cerda’s

sex discrimination and retaliation claims necessarily fail for the same reason as her

FMLA retaliation claim: Cerda does not have substantial evidence that Blue Cube’s

legitimate, nonretaliatory reasons for terminating her employment—time theft

and making threats to her coworkers—are pretext. Accordingly, I must award

summary judgment to Blue Cube on these claims as well.

6 I have not reached Cerda’s argument regarding the “mixed-motive” standard for FMLA

retaliation claims because that standard applies only “when there is evidence that both

legitimate and illegitimate motives played a role in the challenged employment action.”

Stanton v. Jarvis Christian Coll., No. 20-40581, 2022 WL 738617, at *7 (5th Cir. Mar. 11,

2022). Here, both of Blue Cube’s proffered reasons are legitimate and Cerda has not

shown otherwise.

D. CERDA’S TITLE VII SEXUAL HARASSMENT CLAIM

Cerda claims that Blue Cube subjected her “to a sexually harassing hostile

work environment.” Dkt. 16 at 4. Cerda must prove five elements to prevail on her

hostile work environment claim:

(1) that [she] belongs to a protected class; (2) that [she] was subject to

unwelcome sexual harassment; (3) that the harassment was based on

sex; (4) that the harassment affected a “term, condition, or privilege”

of employment; and (5) that the employer knew or should have known

of the harassment and failed to take prompt remedial action.

Shepherd v. Comptroller of Pub. Accts. of State of Tex., 168 F.3d 871, 873 (5th Cir.

1999). Blue Cube concedes the first and second elements. In contesting Cerda’s

sexual harassment claim, Blue Cube bulletizes all nine possible instances of

harassment that Cerda mentioned in her deposition testimony. See Dkt. 28 at 28–

29. Importantly, Blue Cube highlights Cerda’s testimony that she did not report

eight of these nine incidents. See id. In her response, Cerda focuses exclusively on

the one instance that she did report; she does not contest her failure to notify Blue

Cube of the eight other incidents, nor does she argue that Blue Cube had

constructive notice of these eight unreported incidents. Accordingly, the only

allegation of harassment properly before me is the one that Cerda reported.7

In her response, Cerda argues that in the two weeks leading up to her

termination, she was constantly “harassed by co-workers about a newly hired

employee named ‘Cristi,’ who was supposedly homosexual.” Dkt. 31 at 24. Cerda

testified that her coworkers would say: “Oh look, she’s hitting on you. She is going

to try to hit on you in the bathroom,” and “[S]he is looking at you. She . . . started

checking you out and . . . oh, wait until you go to the restroom, the ladies room,

7 Rule 56(e)(2) provides: “If a party . . . fails to properly address another party’s assertion

of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for

purposes of the motion.” Blue Cube argues that it “was not on notice of Cerda’s alleged

sexual harassment concerns.” Dkt. 28 at 30. Cerda does not contest this fact for any

instance of alleged harassment, save for the comments concerning a female coworker

named Cristi. Accordingly, I consider it undisputed that Blue Cube did not know, nor

should it have known, of the eight instances of harassment for which Cerda testified that

she did not notify anyone.

and stuff like . . . that.” Dkt. 29-3 at 24–25. Blue Cube acknowledges that Cerda

testified that she “reported this teasing to the technical advisors and to Gibbons.”

Dkt. 28 at 28. Because Blue Cube concedes the first two elements of a sexual

harassment claim; because this harassment was clearly based on sex, given that

Cerda, the only other female, was the only employee subject to this teasing;8 and

because Cerda indisputably reported this harassment to Blue Cube, the only issue

for me to resolve is whether this harassment was sufficiently severe or pervasive to

alter the terms or conditions of Cerda’s employment.

“For conduct to be sufficiently severe or pervasive, it must be both

objectively and subjectively offensive.” Bye v. MGM Resorts Int’l, Inc., 49 F.4th

918, 924 (5th Cir. 2022). In determining whether the alleged harassment was

objectively offensive, a district court must “consider the totality of the

circumstances, including (1) the frequency of the discriminatory conduct; (2) its

severity; (3) whether it is physically threatening or humiliating, or merely an

offensive utterance; and (4) whether it interferes with an employee’s work

performance.” Badgerow v. REJ Props., Inc., 974 F.3d 610, 618 (5th Cir. 2020)

(quotation omitted). Here, every factor but the first weighs against Cerda.

Cerda testified that her coworkers would harass her about Christi “about

every day . . . whenever they got a chance.” Dkt. 29-3 at 28. This is certainly

frequent. Yet, Cerda’s response focuses exclusively on the frequency of the conduct

and the fact that she reported it. Cerda does not point to any evidence showing—

indeed, Cerda does not even argue—that this conduct was severe, physically

threatening or humiliating, or that it interfered with Cerda’s work performance. To

be clear, these types of comments are certainly offensive. But that is all they are.

Because Cerda cannot establish that these comments about Christi were

sufficiently severe or pervasive, I must grant summary judgment to Blue Cube on

8 “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed

to disadvantageous terms or conditions of employment to which members of the other

sex are not exposed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)

(quotation omitted).

Cerda’s hostile work environment claim. See, e.g., Harvill v. Westward Commc’ns,

L.L.C., 433 F.3d 428, 434 (5th Cir. 2005) (“For sexual harassment to be actionable,

it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s]

employment and create an abusive working environment.’” (quoting Meritor Sav.

Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986))); Shepherd, 168 F.3d at 874

(collecting cases and holding that comments about the plaintiff’s nipples and

thighs, though “boorish and offensive,” did not physically threaten the plaintiff,

unreasonably interfere with her work performance, or “undermine [her] workplace

competence,” and thus did not affect a term of her employment).

CONCLUSION

For all the reasons stated above, Blue Cube’s motion for summary judgment

(Dkt. 28) is GRANTED, and Cerda’s motion for partial summary judgment (Dkt.

29) is DENIED. I will enter a final judgment separately.

SIGNED this 9th day of June 2023.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE