United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 13, 2004
Charles R. Fulbruge III
Clerk
No. 03-10960
Summary Calendar
JOHNNA E. BURTON,
Plaintiff-Appellant,
versus
BUCKNER CHILDREN AND FAMILY SERVICES, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-415-P
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Before REAVLEY, JONES and PRADO, Circuit Judges.
PER CURIAM:*
Buckner Children and Family Services, Inc. (Buckner) hired
Johnna Burton (Burton) as a special events coordinator in 1995
and fired her in 2000. Burton, who was more than 40 years old
when she was fired, filed suit in a Texas court against Buckner
alleging age discrimination under the Texas Commission on Human
Rights Act (TCHRA) and retaliation for using leave under the
federal Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.
*
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that this opinion should not be published and is not precedent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.
No. 03-10960
-2-
Buckner removed the case to federal court on grounds that the
FMLA claims presented a federal question. 28 U.S.C. § 1331.
The district court granted summary judgment for Buckner on
grounds that Burton was fired for a legitimate nondiscriminatory
reason and not because of age discrimination or in retaliation
for her exercise of her FMLA rights. The court reasoned that
Burton’s attempts to contest Buckner’s summary judgment evidence
concerning age discrimination were vague and without foundation.
The court also concluded that Burton failed to establish a prima
facie case of retaliation under the FMLA, and that even if she
had, Buckner had established a legitimate nonretaliatory reason
for dismissing her. We affirm.
“Summary judgment is reviewed de novo, under the same
standards the district court applies.” Amburgey v. Corhart
Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991). Summary
judgment is proper when, viewing the evidence in the light most
favorable to the non-movant, “‘there is no genuine issue as to
any material fact and . . . the moving party is entitled to
judgment as a matter of law.’” Id. (quoting FED. R. CIV. P.
56(c)). We agree with the district court that Burton’s
conclusional allegations and speculation were insufficient to
establish a genuinely contested issue of material fact. See
Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th Cir. 2000).
No. 03-10960
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Buchner supported its motion for summary judgment with
affidavits and documents indicating that Burton was dismissed for
inadequate performance.
Burton’s allegations of discrepancies in Buckner’s summary
judgment evidence were either unsupported by the record or so
trivial as to be immaterial. See Michaels, 202 F.3d at 754-55
(mere conclusions and speculation inadequate to defeat summary
judgment motion); see also Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 148 (2000) (noting that “employer would be
entitled to judgment as a matter of law [if] plaintiff created
only a weak issue of fact as to whether the employer’s reason was
untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred”); Moore v. Eli
Lilly & Co., 990 F.2d 812, 815-16 (5th Cir. 1993) (plaintiff must
do more than cast superficial doubt on employer’s proffered
reason for dismissal). Summary judgment was proper on the age-
discrimination claims.
To support her claims of discrimination for exercising her
rights under the FMLA, Burton was required to show initially that
“(1) she was protected under the FMLA; (2) she suffered an
adverse employment decision; and either (3a) that she was treated
less favorably than an employee who had not requested leave under
the FMLA; or (3b) the adverse decision was made because she took
FMLA leave.” Hunt v. Rapides Healthcare Sys. L.L.C., 277 F.3d
757, 768 (5th Cir. 2001). As noted by the district court, Burton
No. 03-10960
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pointed to no summary judgment evidence that “she was treated
less favorably than an employee who had not requested leave under
the FMLA; or [that] the adverse decision was made because she
took FMLA leave.” Hunt, 277 F.3d at 768. Her references to the
treatment of fellow employee JoAnn Cole did not show either that
Cole had never used FMLA leave or that Cole’s infraction was
“nearly identical” to the infractions for which Burton was
dismissed. See Wallace v. Methodist Hosp. System, 271 F.3d 212,
220-21 (5th Cir. 2001) (compared employee’s conduct must be
“nearly identical” to plaintiff’s). Burton therefore did not
make a prima facie case of discrimination under the FMLA.
Even had Burton made a prima facie case, her claim would
fail because she did not create a genuinely contested issue of
material fact with respect to Buckner’s legitimate,
non-discriminatory reason for dismissing her. See Michaels v.
Avitech, Inc., 202 F.3d at 754-55; Moore, 990 F.2d at 815-16.
Summary judgment was proper on the FMLA claim.
AFFIRMED.