Lutz v. Mario Sinacola & Sons

Case: 24-10235 Document: 50-1 Page: 1 Date Filed: 11/15/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________

FILED

November 15, 2024

No. 24-10235

____________ Lyle W. Cayce

Clerk

Debbie Lutz,

Plaintiff—Appellant,

versus

Mario Sinacola & Sons Excavating, Incorporated; Mike

Grimm,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:22-CV-837

______________________________

Before Wiener, Willett, and Duncan, Circuit Judges.

Per Curiam:*

Plaintiff-Appellant Debbie Lutz appeals the district court’s grant of

Defendants-Appellees’ motion for summary judgment and denial of her

motion for partial summary judgment. For the reasons set forth below, we

AFFIRM.

I.

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 24-10235

Defendant-Appellee Mario Sinacola & Sons Excavating, Inc.

(“MSSE”) is a company involved in many aspects of the construction

industry. Lutz began working for MSSE as an administrative assistant in

2012. She later requested that she no longer work in that position because of

issues she had with her supervisor, Jeff Larson. In 2014, MSSE transferred

Lutz to serve as an administrative assistant in its Fuel Oil and Grease

(“FOG”) Division. Her new direct supervisor was Jose Ambriz. Before Lutz

assumed the role, the administrative assistant position in the FOG Division

did not exist. MSSE created the role by taking responsibilities from existing

employees.

After sustaining a severe injury to her right hip from a domestic

violence incident, Lutz informed Ambriz and Tony Phillips, Vice President

of Human Resources at MSSE, that she needed surgery for a full hip

replacement and would need medical leave for a minimum of six weeks. Lutz

applied for Family and Medical Leave Act (“FMLA”) leave and short-term

disability benefits, which were approved by Cigna, MSSE’s insurer, from

the date of her surgery, February 6, 2020, until March 18, 2020. On or about

March 18, 2020, Lutz’s physician informed her that she would need to take

an additional six weeks of leave because she was recovering slowly. Lutz

submitted her request to Cigna, which then extended her FMLA coverage

to April 29, 2020, but denied her any further short-term disability benefits.

The COVID-19 pandemic triggered a decline in MSSE’s business

operations, causing it to eliminate several jobs in a reduction in force. To

determine which employees to include in the reduction in force, Defendant-

Appellee Mike Grimm, Vice President of MSSE’s Equipment Division,

asked Ambriz and other managers if there were any positions that could be

eliminated from their divisions. Ambriz recommended that Lutz’s role be

considered since it was “never needed.” Grimm then passed on the

recommendation to his supervisor, and on April 14, 2020, he informed Lutz

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that MSSE was eliminating her position because of a COVID-19 reduction

in force, thereby discharging her. Lutz concedes that she was not fired for any

performance-based reasons, but she contends that the only reason she was

discharged was because she was on FMLA leave.

Lutz filed suit against MSSE and Grimm, bringing FMLA

interference claims against both of them. Lutz additionally raised Americans

with Disabilities Act (ADA) and state law claims of disability discrimination

and retaliation but only against MSSE. Appellees moved for summary

judgment on all claims, and Lutz moved for partial summary judgment on her

FMLA interference claim. The district court granted Appellees’ motion and

denied Lutz’s motion, reasoning that MSSE’s reduction-in-force

justification was a legitimate reason to end Lutz’s employment. Lutz timely

appealed.

II.

On appeal, we review a district court’s grant of summary judgment de

novo. United States ex rel. Schweizer v. Canon, Inc., 9 F.4th 269, 273 (5th Cir.

2021). Summary judgment is proper when the record 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 genuine dispute of material

fact exists when “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). All facts and reasonable inferences are construed in favor of

the nonmovant. Deville v. Marcantel, 567 F.3d 156, 163–64 (5th Cir. 2009)

(per curiam).

III.

Lutz appeals the district court’s decision to dismiss her interference

and discrimination claims against Appellees when it granted their motion for

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summary judgment and denied her motion for partial summary judgment on

her FMLA claim.1

a. Lutz’s FMLA Interference Claim

We first address Lutz’s contention that Appellees failed to plead

COVID-19 reduction in force as an “affirmative defense.” She contends

that the United States Department of Labor’s “regulations make clear that

[the fact that] an employee’s job would have been eliminated by a reduction

in force even absent FMLA leave is essentially an affirmative defense.”

Because Appellees only raised an affirmative defense of mitigation of

damages in their answers, Lutz asserts that the district court erred in refusing

to grant her partial summary judgment. We disagree. Lutz conflates

Appellees’ burden of providing a legitimate and nondiscriminatory reason for

employment termination with affirmative defenses. Richardson v. Monitronics

Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005) (describing burden-shifting

framework); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973),

holding modified by Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). She also

fails to point to any precedent that would require Appellees to plead

reduction in force as an affirmative defense, and we have not found a case

that supports her. We therefore hold that Appellees were not obligated to

raise a reduction-in-force affirmative defense in their pleadings.

Turning to the merits of the case, Lutz claims that Appellees violated

her rights under the FMLA because they terminated her position when she

was out on FMLA leave. Under the FMLA, eligible employees are entitled

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1

Even though she appeals the district court’s decision as a whole, Lutz’s brief does

not address her retaliation claims under the ADA or Texas Labor Code. We deem that

those arguments are waived. United Paperworkers Int’l Union AFL-CIO, CLC v. Champion

Intern. Corp., 908 F.2d 1252, 1255 (5th Cir. 1990) (“[A]ny issues not raised or argued in the

appellant’s brief are considered waived and will not be entertained on appeal.”).

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to a total of twelve weeks of leave during any twelve-month period to address

enumerated family and medical issues. 29 U.S.C. § 2612 (a)(1). To protect

this right, employers that “interfere with, restrain, or deny the exercise of or

the attempt to exercise” any right under the statute may be liable for FMLA

interference. 29 U.S.C. § 2615 (a)(1).

FMLA interference claims are analyzed under the McDonnell-

Douglas burden-shifting framework. Turner v. Bd. of Supervisors of Univ. of

La. Sys., No. 22-306515, 2023 WL 5092758 at *2 (5th Cir. 2023) (per curiam)

(“Claims of FMLA interference are analyzed under the McDonnell-Douglas

burden-shifting framework.”); Amedee v. Shell Chem., LP, 953 F.3d 831, 835

(5th Cir. 2020). Under this framework, once Lutz establishes her prima facie

case of interference,2 the burden then shifts to her employer to articulate a

legitimate and nondiscriminatory reason for her termination. Richardson, 434

F.3d at 332. If her employer is successful, the burden shifts back to Lutz to

demonstrate by a preponderance of evidence that her employer’s reason is

pretext for discrimination. Id. at 332–33.

When addressing the merits of Lutz’s FMLA claim, the district court

assumed arguendo that Lutz had established a prima facie case and started its

discussion at the next stage of the McDonnell-Douglas framework. We do the

same, and we take no position on whether Lutz actually established a prima

facie case for her FMLA interference claim.

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2

To establish a prima facie case of FMLA interference, Lutz must show that (1)

she was an eligible employee; (2) her employer was subject to FMLA requirements; (3)

she was entitled to leave; (4) she gave proper notice of her intention to take FMLA leave;

and (5) her employer denied her benefits to which she was entitled under the FMLA.

Caldwell v. KHOU-TV, 850 F.3d 237, 245 (5th Cir. 2017).

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We begin by discussing whether Appellees offer a legitimate,

nondiscriminatory reason for Lutz’s discharge. They contend that they

ended Lutz’s employment because of a company-wide reduction in force

since COVID-19 caused a decline in their business operations through

project shutdowns and loss of cash flow.

We have previously held that a reduction in force is a legitimate and

nondiscriminatory reason to terminate an employee’s position. Baumeister v.

AIG Glob. Inv. Corp., 420 F. App’x 351, 354 (5th Cir. 2011) (holding that the

employer “has proffered a legitimate, non-discriminatory reason for

terminating [its employee]” because “she was terminated as part of a

[reduction in force]”); Williams v. Sterling Healthcare Servs., Inc., 193

F. App’x 328, 330–331 (5th Cir. 2006) (per curiam) (holding that a downturn

in the employer’s business was a legitimate and nondiscriminatory reason for

discharge). Because Appellees maintain that they ended Lutz’s position

solely because of a reduction in force, we conclude that they have met their

burden at this stage.

We now address whether Lutz has demonstrated by a preponderance

of evidence that Appellees’ reduction-in-force justification for terminating

her position was pretextual. To do so, she must present “substantial

evidence.” Watkins v. Tregre, 997 F.3d 275, 283 (5th Cir. 2021). “Evidence

is substantial if it is of such quality and weight that reasonable and fair-

minded [triers of fact] in the exercise of impartial judgment might reach

different conclusions.” Laxton v. Gap Inc., 333 F.3d 572, 579 (5th Cir. 2003)

(internal quotation and citation omitted).

Lutz may meet this burden through either direct or circumstantial

evidence, including “evidence of disparate treatment or by showing that the

employer’s proffered explanation is false or unworthy of credence.” Jackson

v. Cal-W. Packaging Corp., 602 F.3d 374, 378–79 (5th Cir. 2010) (internal

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quotation and citation omitted). “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. “The ultimate determination . . . is whether, viewing

all of the evidence in a light most favorable to the plaintiff, a reasonable

factfinder could infer discrimination.” Crawford v. Formosa Plastics Corp.,

La., 234 F.3d 899, 902 (5th Cir. 2000). “[E]vidence must be of sufficient

‘nature, extent, and quality’ to permit a jury to reasonably infer

discrimination.” Owens v. Circassia Pharms., Inc., 33 F.4th 814, 826 (5th Cir.

2022) (quoting Crawford, 234 F.3d at 903).

Lutz advances three categories of evidence that she contends

demonstrate pretext. All of these arguments fail.

Lutz first claims that fact issues prevented the district court from

granting summary judgment in favor of MSSE and Grimm. She claims that

the true reason Appellees fired her is because she was on FMLA leave, as

she never had any performance issues or work violations. She also contends

that Appellees cannot point to any criterion that it used to evaluate its

employees when making its determinations of reduction in force. Appellees

insist that they have consistently explained to Lutz that the only reason why

she was fired was because of its reduction in force.

We have held that “evidence of ‘inconsistent explanations and the

absence of clear criteria’ in an employer’s decisionmaking can be enough to

survive summary judgment if, under the facts of a particular case, that

inconsistency and lack of criteria could lead to a reasonable inference of

pretext.” Owens, 33 F.4th at 830–31 (quoting Gosby v. Apache Indus. Servs.,

Inc., 30 F.4th 523, 528 (5th Cir. 2022)). Even though Lutz might be able to

prove that there was an “absence of clear criteria” as to why she was fired,

she has not directed us to any “evidence of inconsistent explanations” for

her termination since Appellees have consistently stated that her position

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was “never needed” and the company was facing a decline in business. Id.

We have also maintained that “[t]he lack of evidence of a meaningful

assessment process alone does not prove that [an employer] discriminated

against [an employee].” Gosby, 30 F.4th at 528 (emphasis added). As Lutz

does not assert that there was an absence of clear criteria in Appellees’

termination decision and that they provided inconsistent explanations, her

attempt to show pretext this way fails.

Second, Lutz claims that Appellees’ proffered reason is pretextual

because her job duties were redistributed to other MSSE employees and that

such redistribution is equivalent to being replaced by another employee. She

further argues that Elizabeth Moreno, another MSSE employee, took over

her job duties and title. On the contrary, Appellees argue that Lutz’s

responsibilities were returned to the employees who handled them before she

became an administrative assistant in the FOG division and that her position

was never replaced by anyone. We agree.

“[A] terminated employee has not been ‘replaced’ when his position

is eliminated and his former duties are distributed among other co-workers.”

Rexses v. The Goodyear Tire & Rubber Co., 401 F. App’x 866, 868 (5th Cir.

2010) (per curiam). Record evidence reveals that Lutz’s duties were either

given back to employees like Gregorio Gonzalez and Humberto Guzman,

who were previously responsible for the respective tasks before Lutz joined

the FOG division, or that they were given to other employees, such as

Ambriz and Moreno. While Lutz targets Moreno particularly, she has offered

no evidence, other than her own declarations, to support that Moreno in fact

took over the administrative assistant position in the FOG division.3 Lutz has

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3

Further, her only legal citation is to Spears v. Louisiana College, No. 20-30522,

2023 WL 2810057 (5th Cir. 2023) (per curiam) and even that case does not support her

position. There, we stated that “employers may not circumvent Title VII protections by

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thus not shown that Appellees’ proffered explanation is “unworthy of

credence.”

Finally, Lutz contends that her termination was pretextual because

she was more “qualified” than the employees who were not discharged. She

states that she had more seniority and more experience than employees who

were not fired, and that the only difference between her and the others was

that she took FMLA leave while the others did not. Appellees counter that,

despite making such assertions, she has not provided any evidence—other

than her own speculation—for support.

Plaintiffs may demonstrate pretext by providing evidence showing

that they were “clearly better qualified” than the chosen employees. EEOC

v. La. Off. of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995) (emphasis

added). To do so, Lutz must offer evidence “from which a jury could

conclude that ‘no reasonable person, in the exercise of impartial judgment,

could have chosen the candidate selected over the plaintiff for the job in

question.’” Moss v. BMC Software, Inc., 610 F.3d 917, 923 (5th Cir. 2010)

(quoting Deines v. Tex. Dep’t of Protective & Regul. Servs., 164 F.3d 277, 280–

81 (5th Cir. 1999)). Lutz has failed to meet this burden for two reasons. First,

she has not provided any record evidence that she was more qualified than

the employees whom MSSE chose to retain. Second, as stated above, Lutz

cannot back up her assertion that Moreno—or any employee for that

matter—replaced Lutz as administrative assistant in the FOG division.

Accordingly, Lutz’s unsupported contentions do not show that she was

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‘fractioning’ an employee’s job” among several employees. Spears, 2023 WL 2810057 at

*4. Spears is inapposite for two reasons. First, when we made that declaration, we were

discussing whether the plaintiff had established a prima facie discrimination claim—not

whether the employer’s reason for termination was pretextual. Id. Second, in Spears, new

employees were hired to take over the plaintiff’s job responsibilities, whereas here, the job

duties were given to employees who were already working at the company. Id. at *2.

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“clearly better qualified” than other MSSE employees. Her argument

therefore fails.

Because Lutz cannot prove by a preponderance of the evidence that

MSSE’s reason for her termination was pretext for discrimination, her

FMLA interference claims cannot survive summary judgment.

b. Lutz’s Discrimination Claims

Lutz also appeals the district court’s dismissal of her disability

discrimination claims. Such claims are also analyzed under the McDonnell-

Douglas framework. Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir.

1995). Here too, the district court only focused on whether Appellees’ reason

for Lutz’s discharge was pretextual and did not comment on the merits of

Lutz’s prima facie case for disability discrimination. As already stated,

because Lutz cannot prove by a preponderance of evidence that MSSE’s

reason for her termination was a pretext for discrimination, her

discrimination claims do not withstand summary judgment.

AFFIRMED.4

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4

We need not address whether Grimm could have been personally liable for Lutz’s

discharge for two reasons. First, our conclusion results in the dismissal of all Lutz’s claims

against both MSSE and Grimm. Second, the district court did not discuss that issue on the

merits, and we are a “court of review, not of first view.” Montano v. Tex., 867 F.3d 540,

546-47 (5th Cir. 2017).

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