Williams v. Roy O Martin L L C

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 02-30401
Summary Calendar
_______________
ELVIN RAY WILLIAMS,
Plaintiff-Appellant,
VERSUS
ROY O. MARTIN LUMBER CO. LLC,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 01-CV-317
_________________________
September 30, 2002
Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Elvin Williams appeals a summary judgment
in favor of his former employer, Roy O.
Martin Lumber Co. LLC (“Martin”),1 on
* 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determined that this opinion should not be
published and is not precedent except under the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.
1 The caption in Williams’s complaint reads
“Elvin Ray Williams versus Roy O. Martin Lum-
ber Co., L.L.C., d.b.a. Colfax Creosoting Co.”
The actual name of the Colfax site is “Colfax
Treating Company.” Williams worked at Martin’s
Colfax site, so the parties and the district court
(continued...)

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Williams’s claim of retaliatory discharge under
the Family and Medical Leave Act (“FMLA”),
29 U.S.C. § 2601 et seq. Williams also
appeals three related procedural orders. We
find no error and affirm.
I.
Williams worked as a utility laborer for
Martin from July 1993 to April 2000. He fre-
quently missed work, from a few hours to a
few days, in part because his daughters suffer
from sickle cell anemia. For most of
Williams’s tenure at Martin, his supervisor,
Larry Lindsay, tried to accommodate
Williams’s absences. In particular, Lindsay
allowed Williams to used accrued annual leave
to care for his children; if Williams had no
annual leave, Lindsay would allow him to take
unpaid leave.
In December 1999, however, Martin began
to enforce its leave policy more vigorously be-
cause of high rates of absenteeism and tardi-
ness. These new measures fell especially hard
on Williams, not only because of his afflicted
daughters, but also because Martin suspected
Williams was performing odd jobs for other
employers on Martin’s time. Lindsay and Guy
Milazzo, the human resources manager, met
with Williams in late December to discuss his
excessive absences and tardiness. Lindsay and
Milazzo required Williams to begin accounting
for every time he missed work, not just the
times he missed because of his daughters’
affliction.
Williams nonetheless missed work five
times in January 2000, none related to his
daughters’ health. He twice missed part of the
workday to take his daughters to the dentist.
On the same day, he arrived late after taking
them to school and left early without ex-
planation. He also missed a day of work for a
court appearance. In late January, therefore,
Lindsay and Milazzo again met with Williams
and warned him that further absences or tar-
diness would result in progressive discipline of
a one-day suspension, then a three-day
suspension, then discharge.
This meeting did little to affect Williams’s
attendance; he missed work three times in the
first two weeks of February. Again, none was
related to his daughters’ physical problems.
After the third absence, Lindsay, Milazzo, and
Albert Johnson, the plant manager, met with
Williams to discuss these absences and to sus-
pend him for one day.
Williams then failed to report to work after
his one-day suspension, which promptly
earned him another meeting on February 25
with Lindsay, Milazzo, and Johnson; a three-
day suspension; and a warning that future ab-
sences or tardiness would result in discharge.
Lindsay, Milazzo, and Johnson also asked Wil-
liams whether he wanted to apply for FMLA
leave to care for his children, but Williams
specifically declined to request FMLA leave.
After Williams returned from his
suspension, his attendance improved briefly.
Aside from an authorized absence on March 1,
to care for his daughters, he did not miss any
work during March. He did arrive late for
work on April 5, but Martin excused the tar-
diness at the time because of Williams’s im-
proved attendance record in March.
With no earlier notice, Williams announced
1(...continued)
often referred to the defendant as “Colfax.” In this
appeal, however, the caption refers only to “Roy O.
Martin Co. LLC”; we therefore refer to the
defendant as “Martin.”

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around noon on April 24 that he needed the
afternoon off to care for his daughters. Lind-
say refused to give permission, because he
needed Williams for a busy afternoon at the
site. Williams left anyway and did not return,
so Martin fired him the next day.
II.
Williams filed a complaint with the Equal
Employment Opportunity Commission, which
did not pursue the investigation but issued a
right-to-sue letter. Williams then sued Martin,
asserting claims for retaliatory discharge under
(1) title VII, (2) 42 U.S.C. § 1981, (3) the
FMLA, and (4) LA. REV. STAT. ANN.
§ 23.332. The district court entered a
protective order during pre-trial discovery to
restrict discovery of Martin’s employee
personnel files to records related to
absenteeism and FMLA leave. At the pre-trial
conference, the court confined the questions
for trial to the FMLA claim only.
The parties then filed cross-motions for
summary judgment. Just three days before the
court granted Martin’s motion for summary
judgment on the FMLA claim, Williams moved
to strike certain exhibits attached to Martin’s
motion for summary judgment and for
sanctions for discovery violations. The court
granted Martin’s motion for summary
judgment and dismissed, as moot, the motion
to strike and for sanctions.
III.
We review a summary judgment de novo
and apply the same standards as did the district
court. TIG Ins. Co. v. Sedgwick James, 276
F.3d 754, 759 (5th Cir. 2002). Summary
judgment is appropriate only if “the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits,
if any,” when viewed in the light most fa-
vorable to the non-moving party, “show that
there is no genuine issue as to any material
fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50 (1986). A dispute about a
material fact is “genuine” if the evidence
would permit a reasonable jury to return a
verdict for the non-moving party. Id. at 248.
The court must draw all reasonable inferences
in favor of the non-moving party. Id. at 255.
At the same time, not all disputes or all in-
ferences are reasonable, and the court is not
obliged to accept mere assertions. Thus, once
the moving party initially has shown “that
there is an absence of evidence to support the
non-moving party’s cause,” Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986), the non-
moving party must produce “specific facts”
showing a genuine factual issue for trial. FED.
R. CIV. P. 56(e); Matsushita Elec. Indus.
Corp. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). The non-moving party cannot
rest on mere conclusional allegations and de-
nials, speculation, improbable inferences, un-
substantiated assertions, and legalistic
arguments, none of which will substitute for
specific facts showing a genuine issue for trial.
TIG Ins., 276 F.3d at 759.
IV.
A.
Congress adopted the FMLA “to meet the
needs of families in a manner that
accommodates the legitimate interests of
employers.” Bocalbos v. Nat’l W. Life Ins.
Co., 162 F.3d 379, 382 (5th Cir. 1998); see
also 29 U.S.C. § 2601(b)(1)-(3). “The
enactment of the FMLA was predicated on
two fundamental concerns—the needs of the
American workforce, and the development of
high-performance organizations.” 29 C.F.R.
§ 825.101(b).

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The FMLA both gives employees certain
entitlements and forbids employers from inter-
fering with those entitlements.2 Bocalbos, 162
F.3d at 383. Among its entitlements, the
FMLA gives an eligible employee a right to
twelve weeks of unpaid leave within a twelve-
month period to care for a newborn or newly
adopted child, for a close family member who
has a “serious health condition,” or for oneself
if one has a “serious health condition.” 29
U.S.C. § 2612(a)(1). An employee may take
this leave intermittently if medically necessary.
29 U.S.C. § 2612(b)(1). After an employee
returns from FMLA leave, he is entitled to
return to the same or an equivalent job. 29
U.S.C. § 2614(a)(1). The FMLA also forbids
an employer from interfering with the exercise
of these rights and from discriminating among
employees who exercise these rights. 29
U.S.C. § 2615(a).
When an employee needs FMLA leave for
foreseeable medical treatment for himself or
family members, he has certain duties to his
employer. First, he must make a reasonable
effort to schedule the treatment to avoid undue
disruption to the employer’s operations. 29
U.S.C. § 2612(e)(2)(A). Second, he must
provide the employer with thirty days’ advance
notice of the treatment, or as much notice as
practicable if notice cannot be given thirty days
in advance. 29 U.S.C. § 2612(e)(2)(B).
B.
Williams alleges that Martin retaliated for
the exercise of FMLA rights. In Chaffin v.
John H. Carter Co., 179 F.3d 316 (5th Cir.
1999), we held that the McDonnell Douglas
burden-shifting scheme for federal anti-
discrimination claims applies to an FMLA
retaliatory discharge case.3 See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
McDonnell Douglas burden shifting has
three stages in an FMLA retaliatory discharge
case. First, the plaintiff must establish a prima
facie case of retaliation by showing that he (1)
exercised rights guaranteed by the FMLA and
(2) was discharged (3) as a result of exercising
those rights. Bocalbos, 162 F.3d at 383.
Second, once the plaintiff establishes a prima
facie case, the defendant must articulate a
legitimate and non-retaliatory reason for the
discharge. Id. Third, after the defendant of-
fers such a reason, the burden returns to the
plaintiff to “produce substantial probative evi-
dence that the proffered reason was not the
true reason . . . and that the real reason was
the plaintiff’s” exercise of FMLA rights.
Chaffin, 179 F.3d at 320. The plaintiff cannot
succeed merely by showing that the proffered
reason was pretextual, but must also show that
retaliation “was the real reason.” Id.
C.
2 The FMLA does not apply to all employers or
employees . For example, the act covers only
employers with more than 50 employees, 29 U.S.C.
§ 2611(4), and employees who worked at least
1,250 hours in the last twelve-month period, 29
U.S.C. § 2611(2)(A). The parties, however, do not
dispute that the FMLA applies to both Martin and
Williams.
3 We reserved the question whether McDonnell
Douglas burden shifting applies to a claim for de-
nial of the underlying FMLA benefits. 179 F.3d at
319 n.13. For a persuasive explanation why Mc-
Donnell Douglas burden shifting should not apply
to such a claim, see Diaz v. Fort Wayne Foundry
Corp., 131 F.3d 711 (7th Cir. 1997). Diaz also
concludes, however, that “[i]t is not clear what a
burden-shifting approach could add” to a retali-
ation case. Diaz, 179 F.3d at 713.

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As the district court did, and as so often
happens with McDonnell Douglas burden
shifting, we assume arguendo that Williams
presented a prima facie case of retaliatory dis-
charge. We therefore concentrate on two
main questions: (1) whether Martin articulated
a legitimate, non-retaliatory reason for the
discharge and (2) whether Williams raised a
genuine issue of material fact that any
proffered reason was pretextual and that the
true reason for his discharge was to retaliate
against him for exercising his FMLA rights.
We agree with the district court that Martin
articulated a legitimate and non-retaliatory rea-
son for Williams’s discharge, i.e., his habitual
and unexcused absences and tardiness. Martin
notified Williams of the new measures to
enforce its leave policies in late 1999. Nev-
ertheless, Martin missed work on eight
separate occasions in the first six weeks of
2000, unrelated to his daughters’ sickle cell
anemia.4
Moreover, Williams’s supervisors met with
him on four separate occasions to remind him
of the need for regular work attendance, to
discipline him for absences, and to warn him
that future violations would result in
discharge. Martin then excused Williams’s
first absence in April 2000 because of
Williams’s improved attendance in March
2000, but Martin apparently reached its wits
end when Williams disobeyed Lindsay’s direct
order not to leave work on April 24, 2000,
purportedly to care for his daughters.5 Against
this long record of absenteeism and tardiness,
Martin has more than satisfied its burden to
articulate a legitimate and non-retaliatory
reason for discharging Williams.
We further agree with the district court that
Williams produced no evidence to raise a gen-
uine issue of material fact that this proffered
reason was pretextual and that Martin really
discharged him for exercising his FMLA
rights. Though a scintilla of evidence will not
suffice to defeat a motion for summary
judgment, Williams could not produce even
that. As the district court aptly stated,
“[n]othing in the record suggests that [Martin]
harbored a secret motive to deny Williams[’]
FMLA rights or to retaliate against him for the
assertion of those rights.”
To the contrary, Martin seems the very pic-
ture of a family-friendly employer. Lindsay
flexibly allowed Williams to take off work
from 1993 through 1999 to care for his
daughters. Martin also gave Williams repeated
chances to improve his work attendance before
finally discharging him. Williams’s supervisors
even encouraged him to apply for FMLA
leave, but he refused their entreaties.6 That
Martin finally fired Williams after he claimed
to leave work to care for his daughters cannot
refute the overwhelming evidence of his poor
attendance record and Martin’s good faith;
otherwise, an employer could never discharge
4 Williams twice missed work to take his
daughters to the dentist, but a dental appointment
is not a “serious health condition” under the
FMLA. 26 U.S.C. § 2601(11); see also 29 C.F.R.
§ 825.114(b).
5 Williams failed to give reasonable notice to
Martin of his need for leave as required by the
FMLA. 29 U.S.C. § 2612(e)(2).
6 Martin was anything but a heartless employer.
At Martin’s request, Lindsay once bailed Williams
out of jail after he had been arrested outside of
work for driving while intoxicated.

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or even discipline an employee for good
reason in proximity to an allegedly protected
act.
V.
Williams appeals three procedural orders.
He contends that the district court improperly
entered (1) an order dismissing his motion to
strike and for sanctions as moot, (2) a pre-trial
order limiting the questions for trial to the
FMLA claim, and (3) a protective order
restricting discovery of Martin’s employee per-
sonnel files. We review each kind of order for
abuse of discretion.7
A.
Williams filed a motion to strike and for a
finding of contempt and sanctions three days
before the district court entered summary
judgment. Accordingly, the court dismissed
the motion to strike and for sanctions as moot.
Williams appeals the dismissal.
Williams primarily sought to strike five ex-
hibits related to Samuel Bass’s employment at
Martin, which exhibits were attached to
Martin’s motion for summary judgment.8
These exhibits came from Bass’s personnel
files. Martin used these five exhibits to
counter Williams’s claims of racial
discrimination. The exhibits show that Martin
fired Bass, who is white, for a similar record of
absenteeism at roughly the same time it fired
Williams, who is black.
Williams complained in his motion, and
Martin admits on appeal, that Williams did not
receive these documents during the initial
discovery phase before the parties submitted
their motions for summary judgment. Martin
explains that it failed to produce these
documents because of Bass’s unusually
complicated employment history at Martin.9
Martin had hired and released Bass three
times, so Bass had three separate personnel
files at Martin. Although Williams reviewed
and receive documents from at least one of
these files during discovery, he did not review
and receive documents from all three files.
Martin attributes this oversight to
inadvertence, which Williams does not dispute.
The district court did not abuse its
discretion by dismissing the motion as moot.
The Bass exhibits did not prejudice Williams,
because the court did not cite them in its
memorandum opinion, nor did it discuss Bass
at all. Moreover, it is not as if Martin stood by
and withheld evidence favorable to Williams.
7 United States v. $9,041,598.68, 163 F.3d
238, 252 (5th Cir. 1998) (orders on motions to
strike and for sanctions); Rushing v. Kansas City
S. Ry., 185 F.3d 436, 509 (5th Cir. 1999) (pre-trial
orders); Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 28 F.3d 1388,
1394 (5th Cir. 1994) (protective orders).
8 Williams also complained about failure to pro-
duce documents related to Keith McCain, Jared
Wittington, Terry Hazelton, and Patrick Clark,
also employees of Martin. Martin explains, how-
ever, that Williams either received or had the op-
portunity to inspect these documents if they ex-
isted. Williams does not controvert this explan-
(continued...)
8(...continued)
ation and hence has waived his claims on appeal
related to these four employees. United States v.
Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000).
9 Martin did not have an opportunity to respond
to Williams’s motion to strike, because the district
court dismissed the motion as moot three days after
Williams filed it. Martin now responds to the
motion in its brief, and Williams does not
controvert its explanation.

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The documents, after all, show that Martin did
not discriminate against black employees who
exercised their FMLA rights.
Williams, then, could not have used these
documents to aid his case. Moreover, he was
fully aware of Bass’s employment his-
torySSWilliams stipulated, before moving for
summary judgment, that Bass was a white em-
ployee whom Martin fired in early 2000 for
excessive absenteeism.
Finally, Williams had ample time to examine
these documents or request further discovery
after receiving them. Martin filed its motion
for summary judgment, with the Bass exhibits
attached, on January 31, 2002. Williams did
not file his response until March 8, and the
discovery phase was not scheduled to end until
April 7. Under these circumstances, any error
was harmless. FED. R. CIV. P. 61; Tagupa v.
Bd. of Dirs., 633 F.2d 1309, 1312 (9th Cir.
1980).
B.
After a pre-trial conference, the district
court entered an order limiting the questions
for trial to the FMLA claim. Williams argues
that this order effectively dismissed his racial
discrimination claims without adequate notice
and an opportunity to respond.
The court did not abuse its discretion. Rule
16, FED. R. CIV. P., vests particularly broad
authority in the district court to manage the
course of litigation with a pre-trial conference
and order. Barrett v. Atl. Richfield Co., 95
F.3d 375, 380 (5th Cir. 1996). The court had
good reason to limit the questions for trial to
the FMLA claim, because the record contains
no evidence whatsoever of racial
discrimination. Furthermore, Williams never
objected to the pre-trial order after the court
entered it, and we will not hear arguments or
objections not presented to the district court.
Little v. Liquid Air Corp., 37 F.3d 1069, 1071
n.1 (5th Cir. 1994) (en banc). We also note
that Martin briefed the racial discrimination
claims in its motion for summary judgment, so
the summary judgment can be construed as a
ruling on the racial discrimination claims as
well as the FMLA claim.
C.
In the early stages of discovery, Williams
moved to compel inspection of Martin’s em-
ployee personnel files, and Martin moved for
a protective order. The district court denied
Williams’s motion and entered a protective
order to limit discovery of the personnel files
to records of absenteeism and FMLA leave.
Williams argues that this order impeded his
discovery of relevant facts.
The court did not abuse its discretion. Wil-
liams apparently believes that he had an
inviolable right to rummage through these
files. Not so. Employee personnel files
contain much irrelevant but sensitive and
potentially embarrassing information, for
example, alimony and child support
garnishment, tax records, and drug test results.
Martin understandably wanted to protect its
employees’ privacy rights against needless
discovery.
Williams asserts that the protective order
prevented him from discovering relevant facts
about the kinds of leave taken by employees,
but this information comes within the rubric of
“absenteeism” in the order, and the record
shows that he received the information. In
short, the protective order judiciously balanced
the privacy rights of Martin’s non-party
employees with Williams’s right to relevant
and needed information.

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AFFIRMED.

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