IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-11411
Summary Calendar
_____________________
PATRICIA D. SHAW,
Plaintiff-Appellant,
versus
FANNING, HARPER & MARTINSON;
MARC FANNING; JACK E. EWING,
Defendants-Appellees.
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Appeal from the United States District Court for the
Northern District of Texas
USDC No. 3:95-CV-2862-G
_________________________________________________________________
June 15, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
After reviewing the record and studying the briefs, we
conclude that the plaintiff has failed to adduce any evidence of
discrimination on the basis of race, sex, or pregnancy. Nothing in
the record supports even the slightest inference that white, male,
or non-pregnant employees were treated any differently than the
plaintiff. Responding to the plaintiff’s bare allegations, the
defendants articulated a legitimate nondiscriminatory reason for
*
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this opinion should not be published and is not precedent except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.
discharging the plaintiff, namely, that the plaintiff failed to
return to work following the expiration of her leave of absence
under the Family Medical Leave Act (“FMLA”) and that the
plaintiff’s position had to be filled with a full time employee for
the smooth running of the defendant’s operations. Indeed, the
plaintiff was replaced by a black female. The summary judgment
evidence produced by the plaintiff--consisting merely of affidavits
from her and her doctor--makes absolutely no reference to disparate
treatment of any sort. “It is more than well-settled that an
employee’s subjective belief that [s]he has suffered an adverse
employment action as a result of discrimination, without more, is
not enough to survive a summary judgment motion, in the face of
proof showing an adequate nondiscriminatory reason.” Douglass v.
United Serv. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en
banc) (citing cases). Thus, the plaintiff’s claims of
discrimination on the basis of race, sex, and pregnancy were
properly dismissed on summary judgment.
Summary dismissal of the plaintiff’s claim of hostile work
environment was likewise proper. Even assuming the plaintiff’s
allegations that an attorney at the firm made sexually harassing
remarks on two occasions would be sufficient to sustain a hostile
work environment claim, but cf. DeAngelis v. El Paso Police
Officers Ass’n, 51 F.3d 591, 593-94 (5th Cir.) (describing the high
evidentiary standard required to prove an objectively hostile work
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environment), cert. denied, 116 S.Ct. 473 (1995), the plaintiff
failed to include this claim in her EEOC complaint, which, in any
event, was filed more than 300 days after any alleged harassment
occurred. Thus, the plaintiff failed to exhaust her administrative
remedies and, even if she had, her hostile work environment claim
is time barred. As a result, summary judgment on this claim was
proper. See Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995)
(exhaustion required); Griffin v. City of Dallas, 26 F.3d 610, 612
(5th Cir. 1994) (discrimination charge must be made within 300 days
of alleged incident).
The plaintiff’s newly-sprung FMLA claim, even if it were
properly before the district court (which it was not), was also
appropriately dismissed. An employee is entitled to return to her
position under the FMLA only if she returns to work within the
maximum 12-week leave period. See 29 U.S.C. § 2612; 29 C.F.R.
§ 825.214. The plaintiff failed to return within this time and,
consequently, had no continuing right to employment. Thus, the
plaintiff failed to state an FMLA violation.
Finally, for the reasons stated in its July 1, 1997 memorandum
and order, the district court’s denial of the plaintiff’s motion to
amend the complaint was not an abuse of discretion. And having
properly dismissed all of the plaintiff’s federal claims, the
district court did not abuse its discretion in dismissing her state
claims. Very little, if any, discovery had been completed, and the
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plaintiff has shown no prejudice by having the case sent to state
court.
For the foregoing reasons, the judgment of the district court
is
A F F I R M E D.
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