Petition for Writ of Certiorari — Tate Clark, Petitioner v. Southwest Airlines Company

App. 1

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________

No.: 17-51026

________________

TATE CLARK,

Petitioner,

v.

SOUTHWEST AIRLINES COMPANY

Respondent.

________________

Appeal from the United States District Court for the

Western District of Texas at Austin. Robert Pitman,

District Judge (1:16-CV-00910-RP)

________________

Submitted: January 18, 2018 Decided April 18, 2018

Before WEINER, DENNIS and Southwick, Circuit

Judges.

________________

Dismissed by unpublished per curiam opinion.

________________

App. 2

John F. Melton, The Melton Law Firm, P.L.L.C.,

Austin, Texas for Appellant. Bruce A. Griggs, with the

law firm of Ogletree, Deakins, Nash, Smoak &

Stewart, P.C., Austin, Texas for Appellee.

________________

Unpublished opinions are not binding precedent in this

circuit.

PER CURIAM:*

Plaintiff-Appellant Tate Clark appeals the

district court’s grant of summary judgment dismissing

with prejudice his retaliation action against his former

employer, Defendant-Appellee Southwest Airlines

Company. At the time that Southwest fired Clark from

his job as a customer service agent, he had been taking

time off from work under the FMLA because of chronic

migraine headaches. The parties do not dispute that

Clark was engaged in a protected activity and that his

firing by Southwest was a materially adverse action

against him. They do not agree, however, that there

was a causal link between Clark’s protected activity

and Southwest’s adverse action in firing him, even

though for years he had never been denied FMLA

leave. Southwest contends that Clark’s termination

had nothing to do with his FMLA absences, but was

based solely on Clark’s comments to a co-worker that

he wished he could order a black trench coat so that he

could bring his shotgun to work, a violation of

Southwest’s Zero Tolerance Workplace Violence Policy.

__________________

*

Pursuant to 5th Cir. R. 47.5 the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5th Cir. R. 47.5.4.

App. 3

We have reviewed the briefs of the parties and

Clark’s record excerpts, including the district court’s

detailed and extensive October 26, 2017 Order, fully

and accurately explicating (1) the background of this

case, (2) its framework under the FMLA, (3) Clark’s

prima facie case of retaliation, (4) Southwest’s reasons,

unrelated to the FMLA, for firing Clark, and (5) Clark’s

failure to establish pretext in the reasons given by

Southwest despite the proximity between his last

FMLA absence and the date he was fired. Regardless

of the cogent and highly professional argument

advanced in the brief filed herein by Clark’s counsel,

we are satisfied beyond cavil that the district court

properly dismissed Clark’s action with prejudice for

essentially the reasons set for in its above said Order.

AFFIRMED.

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

TATE CLARK,

Plaintiff,

v.

SOUTHWEST

AIRLINES COMPANY

Defendant.

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1:16-CV-00910-RP

ORDER

(Filed Oct. 26, 2017)

Before the Court is Defendant’s Motion for

Summary Judgment, (Dkt. 19), and the responsive

pleadings. Having reviewed the filings, the relevant

law, and the factual record, the Court grants the

Motion for Summary Judgment

I. BACKGROUND

The claims in this case arise out of Defendant

Southwest Airlines Company’s (“Southwest”)

termination of Plaintiff Tate Clark’s (“Clark”)

employment. Clark began working for Southwest in

2001 in Houston, Texas as a customer service agent.

(Clark’s deposition testimony, Dkt. 19-2, at 47). In

2010, Clark transferred to Austin, Texas and continued

his work as a customer service agent. (Id. at 47-48). In

2011, Clark applied for and was approved for

intermittent leave under the Family and Medical

Leave Act (“FMLA”) for his migraine headaches. (Id.

at 50-51). Clark’s intermittent leave continued until

his discharge, and he does not claim that was denied

App. 5

FMLA leave during his tenure with Southwest. (Id. at

51-52).

A.

FMLA events

After his FMLA intermittent leave began, Clark

alleges that two events occurred. First, his supervisor

“gave him a poor evaluation due to his attendance,”

and those missed days were “almost exclusively days

approved for FMLA leave.” (Clark’s state-court

petition, Dkt. 1-1, at 3). Clark also alleged that his

union representative “heard that management was

trying to establish a pattern of his FMLA use to

reprimand him for it.” (Id.). When he testified in his

deposition, Clark remembered the negative review was

given by Oscar Hernandez (“Hernandez”), a supervisor,

but he did not remember which year it was given.

(Clark’s deposition testimony, Dkt. 19-2, at 57-58).

Hernandez did give him an annual review in 20131 and

that review did mention absences, although Clark,

after looking at the review in his deposition, could not

confirm that that was the review he claimed was the

problem. (Id. at 57-58, 61). After he received the

problematic review from Hernandez–which may or

may not have been in 2013–Clark testified that he

asked Hernandez about the use of FMLA leave in the

review and Hernandez said Clark was not being

“graded” on FMLA absences, “but that that was a

factor” and they “would like to see [Clark] more at

1 Other supervisors gave Clark reviews in 2012 and 2014, and

those reviews negatively reviewed his attendance, but again,

Clark did not claim those reviews were about FMLA leave and

instead claimed that only the review given by Oscar Hernandez

addressed his FMLA leave. (Clark’s deposition testimony, Dkt. 192, at 54-55, 59–60).

App. 6

work.” (Id. at 58–59).

Second, Clark found a note in his box that said

“Leave” and was with a stack of transfer request forms.

(Clark’s state-court petition, Dkt. 1-1,at 3).

Management allegedly treated the situation “like a

joke,” and Clark submitted a complaint to human

resources but “not much was done about it.” (Id.)

Clark testified that management interviewed

employees who had worked when the note was put in

his box and then distributed or posted a memo stating

that people were not to put things in other people’s

boxes absent an instruction to do so.

(Clark’s

deposition testimony Dkt. 19-2, at 68). Unhappy with

how it was handled, Clark went to a supervisor who

“laughed it off like it was some kind of joke.” (Id. 69).

Although not alleged in his state-court petition,

Clark testified that his SOPI complaints also played a

role in his discharge. (Id. at 105). At Southwest, an

employee could file an SOPI complaint to skip over

local management and lodge a complaint directly with

someone at the headquarters in Dallas. (Id. at 102).

Clark filed them frequently, approximately once a

month, (id.) explaining that he “was sort of a stickler

for the rules, . . . more avid in reading my union

guidebook and knew what the procedures were. I

complained about it quite frequently and I don’t believe

that they liked that because I was one of the people

that complained the most.” (Id. at 105).

B.

Termination

Southwest terminated Clark’s employment on

March 9, 2015. (Id. at 163). Southwest claims Clark

was discharged for “making threatening comments

[while at work] about obtaining a trench coat so that

App. 7

he could bring a shotgun to work.” (Defendant’s

Motion for Summary Judgment, Dkt. 19, at 5). Per his

testimony, Clark worked on the night of February 25,

2015, into the early morning hours of February 26.

(Clark’s deposition testimony, Dkt. 19-2,at 109). He

worked alone with his co-worker Kate Rutz (“Rutz”).

(Id. at 109–10). He visited the Lands’ End website and

viewed among other things, a trench coat.) (Id. at

117–18). Rutz asked him if was going to order the

coat, and he responded that he was not. (Id. at

119–20).

In her deposition testimony, Rutz recalls a

different scenario. According to Rutz, Clark said he

was not going to order the coat but that he wished it

came in black so he could bring his shotgun in. (Rutz’s

deposition testimony, Dkt. 19-6, at 27–28). Rutz

responded, “dude, don’t even joke about something like

that [and Clark] just kind of chuckled and didn’t say,

oh I’m not kidding or anything like that.” (Id. at 28).

The next day, Rutz texted their co-worker Diane

Largent (“Largent”) about Clark’s alleged comment,

saying it made her uncomfortable and she wasn’t sure

if she should inform management. (Id. at 29–30).

Largent advised her to inform management. (Id. at 30).

Rutz and Largent testified that they both were

concerned about Clark’s alleged comment because they

had seen Facebook posts of his that were derogatory

about women and “a lot of things about guns.” (Id. at

30–31; Largent’s deposition testimony, Dkt. 19-7, at

44).

On February 27, 2015, Rutz emailed Southwest

Customer Service Manager Roger Molina (“Molina”)

and Station Manager Tim McGee (“McGee”), stating:

App. 8

“Hi guys, I wasn’t sure if I should share

this but the more I thought about it, the

more it bothered me. On Wednesday

night, when Tate & I were working

together, he was looking at the Lands

End uniform web site. There was a

picture of the trench coat and I asked him

if he was going to order it. He said no, but

I wish they made it in black. I asked him

why and he said so he could bring in his

shotgun. I told him not to joke about

something like that and he just sat there

chuckling. I’m not necessarily afraid, but

it wasn’t the first time he referred to his

guns in that manner.”

(Rutz’s deposition testimony, Dkt. 19-6, at 26; Rutz’s

email, Dkt. 19-8). In addition, Largent spoke with

either Molina or McGee about the alleged incident and

asked airport security about reporting “a possible

threat to the workforce.” (Largent’s deposition

testimony, Dkt. 19-7, at 38–42).

On March 1, 2015, Southwest suspended Clark with

pay. (Clark’s deposition testimony, Dkt. 19-2, at

157–58). Several days later, on March 5, Southwest

held a hearing. (Id. at 158–59). Present at the hearing

were: Clark, a union representative, Molina, McGee,

and a note-taker. (Id.). Clark denied making the

comment about bringing in a shotgun and did not

answer questions about whether he owned a shotgun2

(Hearing Notes, Dkt. 19-16). Prior to the hearing,

Southwest—through its IT department—reviewed

what Clark had viewed online on February 25, 2017.

2 In his subsequent deposition, Clark stated that he owned a shotgun, a

rifle, and a pistol. (Clark’s deposition testimony, Dkt. 19-2, at 123).

App. 9

(McGee’s deposition testimony, Dkt. 19-11, at 30–31).

At his deposition, Clark looked at the webpages

Southwest had pulled and agreed that they

represented his online searches that night for rifle

scopes, air rifles, and air pistols. (Clark’s deposition

testimony, Dkt. 19-2, at 122–24). He also had posted on

Facebook that night that he had made a “cold weather

. . . impulse buy” of a twenty-five round magazine and

a black knit Ruger Firearms beanie cap. (Id. at

130–32).

On March 9, Southwest held another meeting

with Clark and, at that meeting, terminated his

employment. (Id. at 163). Southwest maintains that

Clark was discharged for violating Southwest’s Zero

Tolerance Workplace Violence Policy that prohibited

threatening workplace violence. (Defendant’s Motion

for Summary Judgment, Dkt. 19, at 15).

C.

Procedural History

On June 27, 2016, Clark sued Southwest in the

345 Judicial District of Travis County. (Clark’s statecourt petition, Dkt. 1-1). Southwest removed the case

to federal court on July 27 based on the federal

question presented. (Defendant’s Notice of Removal,

Dkt. 1). Southwest filed its Motion for Summary

Judgment on July 12, 2017. (Dkt. 19). The motion was

fully briefed as of August 25, 2017. (Dkt. 24). After

Clark filed his response to the summary judgment

motion, Southwest filed a Motion to Strike Plaintiff’s

Summary Judgment Evidence. (Dkt. 23). That motion

was referred to the Magistrate Judge Andrew Austin,

who denied it. (Dkt. 26).

th

II. STANDARD OF REVIEW

App. 10

A.

Summary Judgment

Summary judgment is appropriate under Rule

56 of the Federal Rules of Civil Procedure only “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” only if 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, 254 (1986). “A fact issue is ‘material’ if its

resolution could affect the outcome of the action.”

Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir.

2012).

The party moving for summary judgment bears

the initial burden of “informing the district court of the

basis of its motion, and identifying those portions of

[the record] which it believes demonstrates the absence

of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). “[T]he moving party

may [also] meet its burden by simply pointing to an

absence of evidence to support the nonmoving party’s

case.” Boudreaux v. Swift Transp. Co., 402 F.3d 536,

544 (5th Cir. 2005).

The burden shifts to the

nonmoving party to establish the existence of a

genuine issue for trial. Matsushita Elec. Indus. Co.,

Ltd. V. Zenith Radio Corp., 475 U.S. 574, 585–87

(1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d

193, 195 (5th Cir. 1995). “After the non-movant has

been given the opportunity to raise a genuine factual

issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted.” Miss.

River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th

Cir. 2000).

App. 11

The parties may satisfy their respective burdens

by tendering depositions, affidavits, and other

competent evidence. Topalian v. Ehrman, 954 F.2d

1125, 1131 (5th Cir. 1992). The Court will view the

evidence in the light must favorable to the non-movant,

Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993), and

should “not make credibility determinations or weigh

the evidence.” Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 150 150 (2000).

B.

FMLA and Mixed-Motive Framework

FMLA entitles employees to take reasonable

leave for medical reasons. 29 U.S.C. § 2601 (b)(2). The

act prohibits employers from discharging an employee

for opposing any practice made unlawful by the act.

Id. § 2615(a)(2). The Department of Labor interpreted

that provision to forbid employers from firing

employees for having exercised FMLA rights. 29 C.F.R.

§ 825.220(c).

In the absence of direct evidence, the Fifth

Circuit applies the mixed-motive framework to FMLA

retaliation claims.3

3 Clark presents facts, not as direct evidence, but instead to

establish a prima facie case and pretext. See Dkt. 22, at 7. Clark

also admits that he relies only on his subjective belief that his

FMLA leave was the reason for his termination and does not have

any “evidence, documents, [or] testimony that supports” his belief.

(Clark’s deposition testimony, Dkt. 19-2 at 195). The Court also

does not find any direct evidence of discriminatory intent. To the

extent that Clark’s briefing could be construed as arguing that

Hernandez’s alleged remarks to Clark about Clark’s FMLA

absences are direct evidence, his comments do not constitute

direct evidence. Clark cannot direct the Court to when Hernandez

made the alleged comments. Garcia v. Penske Logistics, LLC, 165

F. Supp. 3d 542, 557 (S.D. Tex. 2014), aff’d sub nom. Garcia v.

App. 12

To survive summary judgment under this burdenshifting framework, an employee must first make a

prima facie case of FMLA retaliation. Richardson v.

Monitronics International, Inc., 434 F.3d 327, 333 (5 th

Cir. 2005). The burden then shifts to the employer to

articulate a legitimate, nondiscriminatory reason for

the adverse employment action. Id. If the employer

carries this burden, the burden shifts once more to the

employee to offer sufficient evidence to create a

genuine issue of fact that the employer’s reason is a

pretext for discrimination or that discrimination was

one of several reasons, including the employer’s given

reason. Id. If an employee meets that burden, an

employer may still escape liability by proving that it

would have taken the same adverse employment action

despite its retaliatory motive. Id. “The employer’s final

burden is effectively that of proving an affirmative

defense.” Id. (internal quotation marks omitted).

Southwest urges this Court to adopt a slightly

different standard pursuant to two Supreme Court

decisions–University of Texas Southwestern Medical

Center v. Nassar, 133 S.Ct. 2517 (2013), and Gross v.

FBL Financial Services, Inc., 557 U.S. 167 (2009)–that

limited the applicability of the mixed-motive frame

work in cases involving Title VII and the Age

Discrimination in Employment Act. (Defendant’s

Motion for Summary Judgment, Dkt. 19, at 10–11). In

those cases, the Supreme Court held that plaintiffs

Penske Logistics, L.L.C., 631 F. App’x 204 (5th Cir. 2015). Based on

the evidence presented, the most recent annual review conducted

by Hernandez was in 2013, so even assuming he made his

comments then, that is years before Clark’s termination and

therefore the comments were not proximate in time. Id. at

557–58.

App. 13

alleging Title VII retaliation or ADEA discrimination

must allege that their protected activity was the “but

for” cause of the employer’s adverse employment

action. See Nassar, 133 S.Ct. At 2534; Gross, 557 U.S.

at 176. In Ion v. Chevron USA, Inc., the Fifth Circuit

acknowledged the change in law for those other types

of discrimination cases but declined to consider

whether the Nassar approach applied to FMLA

retaliation claims. 731 F, 3d 379, 389–90 (5th Cir.

2013).

In their Motion for Summary Judgment,

Southwest claims that the Fifth Circuit “recently

opined that the heightened ‘but for’ causation standard

for Title VII retaliation claims may also apply to FMLA

retaliation claims,” (Defendant’s Motion for Summary

Judgment, Dkt. 19, at 15), citing Wheat v. Florida Par.

Juvenile Justice Comm’n, 811 F.3d 702 (5th Cir 2016).

This Court disagrees with Southwest’s implication. In

Wheat, the Fifth Circuit was clear in its conclusion that

it would not apply the “but for” causation standard

because “[n]either this Court, nor the Supreme Court,

has decided whether the heightened ‘but for’ causation

standard required for Title VII retaliation claims

applies with equal force to FMLA retaliation claims.”

Id. at 706. This Court therefore rejects Southwest’s

suggestion, follows Fifth Circuit precedent as it now

stands, and proceeds with the mixed-motive analysis

for FMLA retaliation claims.

III. DISCUSSION

The question before this Court is whether

Southwest discharged Clark as retaliation for taking

App. 14

FMLA leave.4 Using the mixed-motive framework, this

Court starts with determining whether Clark has

established a prima facie case of FMLA retaliation. To

do so, the plaintiff employee must show that: “(1) she

engaged in protective activity; (2) the employer took a

materially adverse action against her; and (3) a causal

link exists between her protected activity and the

adverse action.” Id. at 705. Southwest does not dispute

the first and second elements and focuses its argument

on the third and final element of causation.

(Defendant’s Motion for Summary Judgment, Dkt. 19,

at 12).

A.

Prima Facie Case of FMLA Retaliation

The Fifth Circuit has recognized that the burden

of establishing this “causal link” element of a prima

facie case is not an onerous burden. See Sherrod v.

American Airlines, Inc., 132 F.3d 1112, 1122n.8 (5th

Cir. 1998); Martin v. J.A.M. Distributing Co., 674 F.

Supp. 2d 822, 843–44 (E.D. Tex. 2009); Vincent v. Coll.

of the Mainland, No. CV G-14-048, 2016 WL 5791197,

at *10 (S.D. Tex. Sept. 30, 2016), aff’d, No. 16-41465,

2017 WL 2927630 (5 th ir. July 7, 2017).

In this case, Clark intermittently and

continuously used FMLA leave for years before his

termination, and he admitted that he was never denied

FMLA leave even when he went over his allotted

number of days per month. (Clark’s deposition

testimony, Dkt. 19-2, at 51–54). To the extent Clark

now claims that his FMLA leave on February 27, 2015,

4 Clark does not allege FMLA interference and admitted in his

deposition that Southwest did not deny him FMLA leave. (Clark’s

deposition testimony, Dkt. 19-2, at 51–54).

App. 15

is connected to his March 9, 2015, termination, Clark

shows temporal proximity between his day of FMLA

leave and his termination. Clark Cty. Sch. Dist. V.

Breeden, 532 U.S. 268, 273 (2001) (“The cases that

accept mere temporal proximity between an employer’s

knowledge of protected activity and an adverse

employment action as sufficient evidence of causality

to establish a prima facie case uniformly hold that the

temporal proximity must be very close.”) (internal

quotation marks omitted).

Southwest argues that the temporal proximity

in this case is not sufficient to constitute a causal link

between Southwest terminated Clark’s employment

when he violated the Workplace Violence Policy and

his leave on February 27 was merely incidental.

Southwest compares the instant set of facts to those of

Jarjoura v. Ericsson, Inc., 266 F. Supp. 2d 516 (N.D.

Tex. 2003), aff’d, 82 F. App’x 998 (5th Cir. Dec. 17,

2003) (per curiam). In Jarjoura, the court considered

a case where the employee was terminated shortly

after he was placed on full FMLA leave but because the

employee had violated the employer’s policy regarding

use of corporate credit card. Id. at 531. The Court

reasoned that because the “conclusively reveal[ed]

some other nonretaliatory reason for Ericsson’s

decision to terminate,” the temporal proximity was

“simply too slender a reed to support an inference that

retaliation occurred because [the employee] took FMLA

leave.” Id. This Court agrees the Jarjoura court’s

reasoning. Temporal proximity alone “sometimes”

establishes a causal link, Porter v. Houma Terrebonne

Hous. Auth. Bd. Of Commr’s, 810 F. 3d 940, 948 (5th

Cir. 2015), but not always. Clark was not exempted

from Southwest’s employee policies because he took

FMLA leave, and, without more, the closeness between

App. 16

the final day Clark took FMLA leave and his

termination may not establish a causal link. See

Jarjoura, 266 F. Supp. 2d at 531 (“An

antidiscrimination or retaliation statute does not

exempt an employee from violations of company work

rules or job requirements.”); Hoogstra v. W. Asset

Mgmt., Inc., 560 F. Supp. 2d 515, 523–24 (E.D. Tex.

2006) (quoting Jarjoura for the proposition that

“timing alone is not enough to support retaliation when

evidence shows that the employer’s actions were

justified”).

While the Court believes the instant case is one

where mere temporal proximity could arguably be

insufficient to show a causal link, the Court finds that

the close proximity between Clark’s discharge and his

protected activity minimally establishes the causation

element of Clark’s prima facie case of FMLA

retaliation. Accordingly, the Court turns to the next

stem of the analysis–whether Southwest has met its

burden of showing a non-discriminatory reason for

Clark’s discharge.

B.

Southwest’s Non-Retaliatory Reasons for

Terminating Clark’s Employment

Because Clark satisfies the first requirement,

Southwest “must articulate a legitimate, nondiscriminatory reason for the adverse employment

action.” Richardson, 434 F.3d at 333. Southwest

maintains Clark was discharged because he violated

its Zero Tolerance Workplace Violence Policy that

prohibited making threats of workplace violence.

(Defendant’s Motion for Summary Judgment, Dkt. 19,

at 15). Clark’s coworker Kate Rutz testified that Clark

told her he wished a trench coat, for sale online, came

App. 17

in black so that he could bring in his shotgun. (Rutz’s

deposition testimony, Dkt. 19-6, at 27–28), She sent an

email to her managers expressing her concern about

Clark’s comments, (Rutz’s deposition testimony, Dkt.

19-6, at 26; Rutz’s email, Dkt. 19-8), and then

Southwest suspended Clark and began their

investigation which included an IT review of his online

activity on the night in question and also two meetings

with Clark and a hearing, (Clark’s deposition

testimony, Dkt. 19-2, at 122–24, 157–59). After

completing their investigation, Southwest terminated

Clark’s employment.

In his deposition, Clark testified that he had

been aware of Southwest’s workplace violence policy

and had received training on it. (Id. at 168). He also

said he had understood that it was a “zero tolerance”

policy, conceding that there was “no room” “to have any

sort of excuse for that.” (Id. at 169). He further

admitted that he had been aware that making a threat

violated the policy. (Id.). Clark also agreed that, if he

had made it, his comment about bringing in a shotgun

would have violated the policy and would have been

grounds for termination. (Id. at 121).

Since Southwest has produced a legitimate, nondiscriminatory reason for discharging Clark, the

burden shifts back to Clark to offer sufficient evidence

to create a genuine issue of fact that Southwest’s nondiscriminatory reason was pretext for discrimination.

C.

Clark Fails to Establish Pretext

Clark’s denial that he made the comment about

bringing in a shotgun does not create a genuine issue

of fact that would defeat Southwest’s Motion for

App. 18

Summary Judgment. The Court need not determine

whether Clark actually said that or whether Southwest

made a correct decision in firing Clark but whether

Southwest was motivated by retaliation. In

determining whether an employer engaged in

discrimination in using allegations of misconduct

lodged by another employee, “[t]he real issue is

whether the employer reasonably believed the

employee’s allegation and acted on it in good faith, or

to the contrary, the employer did not actually believe

the co-employee’s allegation but instead used it as a

pretext for an otherwise discriminatory dismissal.”

Waggoner v. City of Garland, Tex., 987 F. 2d 1160,

1165 (5th Cir. 1993).

Reviewing Clark’s briefing and the evidence

charitably, Clark presents three events to show

pretext: (1) his poor performance evaluation that was

based on his use of FMLA leave; (2) the “Leave” note

left in his employee box; and (3) his frequent SOPI

complaints.5 See supra Section I.A.

First, Clark relies on a performance evaluation

given by Oscar Hernandez that negatively reviewed

Clark’s performance based on absences that, according

to Clark, were, at least in part, FMLA absences.

During his deposition, Clark was presented with

evaluations from different years including a 2013

review by Hernandez, but Clark could not confirm

whether the 2013 review by him was the problematic

review. (Clark’s deposition testimony, Dkt. 19-2, at

5 Clark did not raise his SOPI complaint allegations in his state-court

petition, but this Court considers them without deciding whether they are

properly before the Court for the purpose of deciding the Motion for

Summary Judgment.

App. 19

57–58). Clark’s 2012 and 2014 reviews were not given

by Hernandez, (id. at 54, 59–60), and the Court

excludes those reviews from its analysis since Clark

asserts that only the (unidentified) Hernandez review

shows discriminatory motivation, (id. at 55–56, 60).

After Clark received the 2013 Hernandez review, he

told Hernandez that he “shouldn’t be docked for [the

listed dates that he was on FMLA leave].” (Id. at 58).

According to Clark, Hernandez responded that Clark

was not being “graded” on FMLA absences, “but that

that was a factor” and they “would like to see [Clark]

more at work.” (Id. at 58–59). Even assuming the 2013

review and Hernandez’s comments about it show

discriminatory intent, the 2013 review was an “end-ofyear performance review” that Clark signed in

November, 2013, (id. at 56), long before Southwest

terminated Clark’s employment in 2015, and

presumably Hernandez’s comments were made around

the same time. Similarly, the “Leave” note, that was

with a stack of transfer forms, was left in his box in

July 2013, even longer before the termination took

place. (Id. at 64). After both of those events, Clark

continued to use his FMLA leave for long periods of

time and does not claim he was denied FMLA leave one

time.

Assuming without deciding that Hernandez

review and subsequent comments and the “Leave” note

show discriminatory motivation, both of the events lack

temporal proximity to the adverse employment action.

Although Clark does not specify when he received the

Hernandez review or when Hernandez made his

comments, the Court assumes the complained-of

review is the 2013 review, which would be the most

recent Hernandez review. That review and the “Leave”

note occurred more than one year before the

termination. The “Leave” note was left in Clark’s box

App. 20

at least 1.5 years prior to the termination, and the

2013 review was given at least fifteen months prior.

The spans of time between the alleged discriminatory

acts and the adverse employment action are too great

to constitute sufficient evidence of retaliation. See

Garcia v. Penske Logistics, L.L.C., 631 F. App’s 204,

211–12 (5th Cir. 2015) (determining the comments

made two years before an adverse decision were not

proximate in time and therefore were not sufficient

evidence of retaliation).

The SOPI complaints appear to have been

continuous throughout Clark’s employment, but Clark

does not show that they related to his FMLA leave. In

his deposition, Clark stated that he did not remember

filing a SOPI related to his FMLA leave. (Clark’s

deposition testimony, Dkt. 19-2, at 103). While he does

not exclude the possibility that the SOPI complaints

dealt with his FMLA leave, he makes clear that his

complaints were about union rules: “I was sort of a

stickler for the rules . . . I was more avid in reading my

union guidebook and knew what the procedures were.”

(Id. at 105). When asked if his SOPI complaints were

about union issues, Clark responded: “Things of that

nature, yeah.” (Id.) Having produced no SOPI

complaint that related to his FMLA leave, Clark

cannot rely on them to show a causal link between his

SOPI complaints and Southwest’s alleged FMLA

retaliation.

Clark additionally raises a “cat’s paw theory:”

that Kate Rutz and Diane Largent believed Clark

abused his FMLA leave and influenced the decision

makers to terminate Clark’s employment and therefore

their discriminatory attitudes may be imputed to the

formal decision maker. (Plaintiff’s Response to Motion

for Summary Judgment, Dkt. 22 at 3–4, 7–8, 11).

App. 21

Clark’s cat’s paw theory is equally unavailing. As to

Rutz, in one vein, Clark argues that she had a problem

with Clark using FMLA leave, (id. at 11), and then in

another vein, Clark complains that, when the

termination decision was made, management “did not

ever talk to Kate Rutz about what she alleged Tate

Clark had said.” (Id. at 10). Clark’s main complaint

with respect to Rutz seems to be a lack of

communication with management. To the extent Clark

contends Rutz complained about Clark, he lacks

supporting evidence. In his deposition, Tim McGee,

the person who purportedly made the termination

decision, testified that some employees were frustrated

when a coworker took FMLA leave. (Tim McGee’s

deposition testimony, Dkt. 22-4, at 76). When asked if

Rutz was of the employees who complained, McGee

said she may have been, but he did not remember her

“explicitly telling me anything like that.” (Id. at

76–77).

With respect to Largent, McGee testified that

Largent complained about Clark “calling in sick” and

that “it wasn’t fair.” (Id. at 20). Largent testified that

she was inconvenienced, but not upset, by Clark’s

absences–because she and other coworkers would be

called in to work his shifts–and that she was not in a

position to judge the validity of his medical reason to

miss work. (Diane Largent’s deposition testimony,

Dkt. 22-6, at 24–25, 68). Clark fails to demonstrate,

however, that Largent’s complaints to McGee about

Clark’s absences impacted the termination decision. In

fact, in his deposition, McGee stated that not only that

it was not a problem for employees to use FMLA leave

but that it was their “right.” (Tim McGee’s deposition

testimony, Dkt. 22-4, at 20).

To succeed with his cat’s paw theory, Clark must

App. 22

submit evidence sufficient to establish that: (1) a

coworker exhibited discriminatory animus, and (2) the

same co-worker possessed leverage, or exerted

influence, over the titular decisionmaker. Roberson v.

Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004)

(internal quotation marks omitted); Jones v. Children’s

Hosp., 58 F. Supp. 3d 656, 665 n.68 (E.D. La. 2014)

(applying the cat’s paw analysis in FMLA retaliation

case). In her email to McGee and Roger Molina on

March 6, 2015–after Clark allegedly made his shotgun

comment and before he was terminated–Largent stated

that she had received a text from Rutz about the

comment and then described why she found it

“disturbing and uncomfortable.” (Diane Largent’s

email, Dkt. 22-6). She went on to describe Clark’s

Facebook posts about guns and violence. (Id.).

Nowhere in that email does she mention Clark’s

absences or his use of FMLA leave. And McGee

testified that Clark’s attendance had nothing to do

with why he was discharged.6 (Tim McGee’s deposition

testimony, Dkt. 22-4, at 72). Clark also does not allege

that Largent (or Rutz) possessed “leverage, or exerted

influence, over” McGee or Molina.

Moreover, Southwest’s undisputed record of

6 In his response to the Motion for Summary Judgment, Clark states that

“McGee wrote an email which stated that Tate Clark ‘wasn’t the best with

attendance.’” (Dkt. 22, at 11). Clark argues that that phrase shows McGee

had a problem with Clark’s attendance. Clark provided a one-page excerpt

of McGee’s testimony to support his assertion. (Tim McGee’s deposition

testimony, Dkt. 22-4, at 72). From what can be construed from the

testimony, McGee wrote the email in response to someone who was asking

about Clark’s work schedule, and McGee was “trying to elicit to her, I don’t

know for sure if he’ll be here,” and he specified that he said that only

because of “the context” (Id.). He was then asked whether attendance had

anything to do with why Clark was terminated. He responded, “no.” (Id.).

App. 23

approving Clark’s FMLA leave for years before his

termination counsels against a finding of pretext. In

Garcia v. Penske Logistics, LLC, the court grappled

with that very issue. 165 F. Supp. 3d 542, 561 (S.D.

Tex. 2014), aff’d sub. nom. Garcia v. Penske Logistics,

L.L.C., 631 F. App’x 204 (5th Cir. 2015). The employee

had taken FMLA leave twenty-five times from 2005 to

2011, and the employer approved each request. Id.

The court noted that courts have found that “prior

approval of numerous FMLA requests counters against

attempts to establish pretext through proximity in

time.” Id.

IV. CONCLUSION

For the reasons, IT IS ORDERED that

Defendant Southwest Airlines Company’s Motion for

Summary Judgment is GRANTED.

SIGNED on October 26, 2017.

Robert Pitman

United States District Judge