United States Court of Appeals
for the Fifth Circuit
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No. 23-40404
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Elizabeth Cerda,
Plaintiff—Appellant,
versus
Blue Cube Operations, L.L.C.,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:21-CV-214
______________________________
Before Willett, Wilson, and Ramirez, Circuit Judges.
Irma Carrillo Ramirez, Circuit Judge:
Former Blue Cube employee Elizabeth Cerda was fired for earning
wages for time she did not work and threatening to expose her co-workers to
COVID-19. She sued Blue Cube under the Family and Medical Leave Act
(FMLA) and Title VII of the Civil Rights Act (Title VII). The district court
granted summary judgment to Blue Cube. We AFFIRM.
I
Cerda worked for Blue Cube from 2006 until April 21, 2020.
Following rotator cuff surgery in 2017, she requested and was granted leave
United States Court of Appeals
Fifth Circuit
FILED
March 19, 2024
Lyle W. Cayce
Clerk
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under the FMLA. She exhausted the twelve weeks’ leave to which she was
entitled under the FMLA but remained on leave for a total of eighteen
months.
1
When she returned to work in late 2018, she told her supervisor,
Steven Gibbons, that she was going to visit her ailing father during her 30-
minute lunch breaks to “make sure he had his medicines and something to
eat.” Cerda regularly took longer than 30 minutes to visit her father,
however.
Meanwhile, the male employees at Blue Cube began teasing Cerda and
making what she maintains were inappropriate comments. They would
discuss having sex with their wives and post inappropriate surveys in their
workspace. They teased Cerda about another female employee, who they
believed to be homosexual and flirting with Cerda, and called Cerda
demeaning names such as “shorty,” “grandma,” and “Ratatouille.” One of
them blew kisses at her and tickled her palm on one occasion; another would
walk up behind his co-workers—male or female—and knee them in the
buttocks, yelling “corn dog!” Cerda once walked into a conference room and
found several of her male co-workers watching videos on their phones; while
they appeared to be discussing classic cars, Cerda believed they were
watching pornographic videos. When Cerda changed out of her work uniform
and into her regular clothes at work, her co-workers asked her where she was
going, and she informed them that she had a dentist appointment.
Thereafter, whenever she changed into her regular clothes, her co-workers
would comment that she must be going to the dentist. And on one occasion,
Gibbons needed to enter the women’s locker room, and he made a comment
about Cerda being fully clothed.
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1
Because Cerda exhausted her FMLA leave in 2017, she was not eligible for
additional FMLA leave until August of 2019.
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After Cerda had been visiting her father during her lunch breaks for
several months, Gibbons suggested Cerda ask Human Resources about her
eligibility for FMLA leave to care for him. Sometime in early 2020, Cerda
approached Blue Cube Human Resources manager Michelle Mulligan in a
hallway outside of a conference room as Mulligan was leaving another
meeting and briefly expressed her desire to explore “possibly getting FMLA
for [her] dad.” Cerda never discussed the matter with Mulligan again and
instead continued to exceed her allotted lunch break without reporting her
absences. Her co-workers complained, so Blue Cube initiated an
investigation, which revealed Cerda had been paid for at least 99 hours she
did not work.
During that investigation, Cerda missed work after she was exposed
to COVID-19. When Blue Cube required Cerda to use personal sick days to
justify her absence, she threatened to come to work and infect her co-workers
the next time she was sick.
Blue Cube terminated Cerda’s employment on April 21, 2020. Cerda
sued Blue Cube, asserting four claims. She alleged that the time she missed
from work to care for her father was FMLA-protected, so by terminating her
employment, Blue Cube either (1) interfered with her use of her FMLA
benefits or (2) retaliated against her for engaging in FMLA-protected
activities. Cerda also asserted (3) a sex discrimination claim because she was
punished for extended lunches while her male colleagues were not and (4) an
independent sexual harassment claim related to several incidents in which
male employees teased her. During the proceedings below, Cerda asked the
district court to reconvene Mulligan’s deposition on a second day; the
district court declined to do so, citing Federal Rule of Civil Procedure
30(d)(1). The parties filed cross-motions for summary judgment, and the
district court granted Blue Cube’s motion on all four claims. Cerda timely
appealed the district court’s discovery ruling and judgment.
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II
“We review a district court’s grant of summary judgment de novo,
applying the same standard on appeal as that applied below.” Rogers v.
Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary
judgment is warranted “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). We must draw all reasonable inferences and
construe all evidence in the light most favorable to Cerda as the nonmoving
party. See Rogers, 755 F.3d at 353.
We affirm the grant of summary judgment to Blue Cube on all claims.
A
Cerda did not adduce sufficient evidence of each of the elements of
her FMLA interference claim to survive summary judgment. To establish a
prima facie case of FMLA interference, a plaintiff must show “(1) [s]he was
an eligible employee; (2) h[er] employer was subject to FMLA
requirements; (3) [s]he was entitled to leave; (4) [s]he gave proper notice of
h[er] intention to take FMLA leave; and (5) h[er] employer denied h[er] the
benefits to which [s]he was entitled under the FMLA.” Caldwell v. KHOU-
TV, 850 F.3d 237, 245 (5th Cir. 2017).
Cerda’s FMLA interference claim fails because she did not provide
evidence showing she gave Blue Cube adequate notice of her need or intent
to take leave—that is, time away from work in addition to her 30-minute
lunch breaks. Even when an employee is in all respects eligible for FMLA
leave, “the employee must give his employer notice of his intention to take
leave in order to be entitled to it.” Acker v. Gen. Motors, L.L.C., 853 F.3d 784,
788 (5th Cir. 2017) (emphasis added). When giving notice, an employee need
not “expressly invoke[]” the FMLA. Manuel v. Westlake Polymers Corp., 66
F.3d 758, 762 (5th Cir. 1995). “The critical question is whether the
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information imparted to the employer is sufficient to reasonably apprise it of
the employee’s request to take time off for a serious health condition.” Id. at
764. But “[w]hile an employer’s duty to inquire may be predicated on
statements made by the employee, the employer is not required to be
clairvoyant.” Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 980 (5th Cir.
1998). Additionally, employers may “condition FMLA-protected leave
upon an employee’s compliance with the employer’s usual notice and
procedural requirements, absent unusual circumstances[,]” and
“[d]iscipline resulting from the employee’s failure to do so does not
constitute interference” with the employee’s FMLA rights. Acker, 853 F.3d
at 789 (citation omitted).
At oral argument, Cerda acknowledged that the extent of the record
evidence arguably establishing that she had provided notice was (1) her
testimony regarding the brief conversation with Mulligan as she was leaving
the conference room and (2) Gibbons’s affidavit establishing that he was
aware of the severity of Cerda’s father’s ailments and the extensive care he
required. Cerda also testified, however, that she never actually requested
leave of any kind from Blue Cube. She told Gibbons that she could care for
her father on her lunch breaks and therefore did not need to take additional
time away from work. Indeed, Gibbons was the one who first mentioned the
possibility of Cerda obtaining FMLA leave; Cerda did not initiate any
conversations regarding her need for leave.
Even drawing all inferences in Cerda’s favor, the record shows, at
most, that Cerda sought to meet with Mulligan to obtain more information
about Cerda’s potential FMLA eligibility. She concedes she did not express
an intent or desire to take leave. That is insufficient to put Blue Cube on
notice that Cerda intended to take leave and that that leave qualified for
FMLA coverage. See id.; see also Satterfield, 135 F.3d at 980. Cerda knew how
to obtain leave, as she had successfully done so in the past, and she
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indisputably did not comply with Blue Cube’s internal procedures for
requesting FMLA leave here. See Acker, 853 F.3d at 789. And even if Cerda
adduced sufficient evidence of notice triggering Gibbons’s obligation to
provide additional FMLA information to her, Gibbons fulfilled that
obligation by referring her to Mulligan. See Greenwell v. State Farm Mut. Auto
Ins. Co., 486 F.3d 840, 843 (5th Cir. 2007) (holding that the supervisor’s
invitation for the employee “to clear the absence under FMLA . . .
discharged [the employer’s] duty to inquire based on the facts provided by
an employee”). For these reasons, Cerda’s FMLA interference claim fails.
B
Additionally, Cerda’s FMLA retaliation and Title VII sex
discrimination claims were properly dismissed because she did not identify a
genuine dispute of material fact with respect to the issue of pretext.
2
Cerda’s
FMLA retaliation and sex discrimination claims are both evaluated under a
version of the McDonnell Douglas burden-shifting framework. See Richardson
v. Monitronics Int’l, Inc., 434 F.3d 327, 332–33 (5th Cir. 2005) (applying
burden-shifting framework to FMLA retaliation claim); Risher v. Aldridge,
889 F.2d 592, 596 & n.11 (5th Cir. 1989) (applying burden-shifting framework
to sex discrimination claim). At the last step of that analysis, the burden is on
Cerda to show that the non-retaliatory, non-discriminatory justifications for
her termination provided by Blue Cube were pretextual. See Risher, 889 F.2d
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2
Her FMLA retaliation claim fails for another reason: to make a prima facie
showing of retaliation, Cerda must point to evidence that she engaged in protected activity.
See Watkins v. Tregre, 997 F.3d 275, 284 (5th Cir. 2021). Because Cerda did not adduce
evidence of notice sufficient to give rise to an FMLA interference claim, she likewise failed
to show that she engaged in FMLA-protected activity. See, e.g., Harrelson v. Lufkin Indus.,
Inc., 614 F. App’x 761, 764 (5th Cir. 2015) (per curiam) (holding that an employee’s
“failure to substantiate his interference claim [was] inconsistent with his retaliation
claim”).
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at 596 n.11. “Pretext can be proven by any evidence that casts doubt on the
credence of the employer’s proffered justification for the adverse
employment action.” Harris v. FedEx Corp. Servs., Inc., 92 F.4th 286, 297
(5th Cir. 2024) (citation omitted).
Here, Blue Cube presented evidence that it fired Cerda because she
earned wages for time that she did not work and threatened to expose her
co-workers to COVID-19. Cerda offers several reasons why Blue Cube’s
proffered justifications were pretextual, but none are supported by the
record. She contends that Mulligan was the one who ultimately decided to
terminate her employment and that her decision was based on a flawed
investigation. But affidavits in the record show that three directors at Blue
Cube made the decision to fire Cerda. Cerda also notes that she was initially
told she was being fired only for being paid for hours she did not work; that
statement is not fatally inconsistent with a statement that she was fired both
for that reason and because she threatened her co-workers, however. Cerda
also maintains that other employees—most of whom were male—took
extended lunch breaks and were never punished. But Cerda fails to point to
evidence that these other co-workers were similarly situated: there is no
evidence that those employees took as many extended lunch breaks as Cerda
or threatened their co-workers. Because Cerda fails to adduce sufficient
evidence of pretext, her FMLA retaliation and sex discrimination claims
were properly dismissed.
C
We also conclude that Cerda did not present evidence of each of the
elements of her sexual harassment claim. Title VII recognizes two types of
sexual harassment claims: quid pro quo claims and hostile work environment
claims. Newbury v. City of Windcrest, 991 F.3d 672, 675–76 (5th Cir. 2021)
(citing Casiano v. AT&T Corp., 213 F.3d 278, 283 (5th Cir. 2000)); see also
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Simmons v. Lyons, 746 F.2d 265, 269–70 (5th Cir. 1984) (noting that sexual
harassment is a form of employment discrimination violative of Title VII).
This case involves only the latter. A prima facie hostile work environment
claim under Title VII requires proof of the following elements: (1) the
plaintiff is a member of a protected class; (2) the plaintiff was subjected to
unwanted or unwelcome sexual harassment; (3) the harassment was based on
sex; (4) the harassment affected a term, condition, or privilege of
employment; and (5) the employer knew or should have known about the
harassment and failed to act promptly to address it. See Jones v. Flagship Int’l,
793 F.2d 714, 719–20 (5th Cir. 1986) (citing Henson v. City of Dundee, 682
F.2d 897, 903–905 (11th Cir. 1982)); see also Waltman v. Int’l Paper Co., 875
F.2d 468, 477 (5th Cir. 1989).
Here, several of the incidents Cerda complains of were not “based
upon sex[.]” See Jones, 793 F.2d at 719. For example, discussions about male
employees having sex with their wives were not directed at Cerda, and the
record is devoid of evidence that they were motivated by her sex. And the
demeaning names that her co-workers called her were, according to Cerda’s
own testimony, based on her height and the fact that she could crawl under
the equipment at work rather than on her sex. Moreover, some of the
incidents did not alter the conditions of her employment because they were
not adequately severe or pervasive. See id. at 719–20. For instance, the
incident in which Gibbons needed to enter the women’s locker room and
mentioned something about Cerda being fully clothed happened only once
and was not patently offensive. Finally, Cerda failed to point to evidence that
Blue Cube had knowledge of the remaining conduct to which she objects.
For these reasons, Cerda’s Title VII sexual harassment claims cannot
survive summary judgment.
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III
Cerda lastly challenges the district court’s denial of her request to
reconvene Mulligan’s deposition on a second day. Discovery rulings are
reviewed for abuse of discretion. JP Morgan Chase Bank, N.A. v.
DataTreasury Corp., 936 F.3d 251, 255 (5th Cir. 2019). “A trial court enjoys
wide discretion in determining the scope and effect of discovery, and it is
therefore unusual to find an abuse of discretion in discovery matters.” Id.
(quoting EEOC v. BDO USA, L.L.P., 876 F.3d 690, 698 (5th Cir. 2017)).
“Even if a district court abuses its discretion, the reviewing court will not
overturn its ruling unless it substantially affects the rights of the appellant.”
Id. (citing N. Cypress Med. Ctr. Operating Co., Ltd. v. Aetna Life Ins. Co., 898
F.3d 461, 481 (5th Cir. 2018)).
We hold that the district court did not abuse its discretion in denying
Cerda’s request to reconvene Mulligan’s deposition. Cerda did not request
to depose Mulligan until one week before the discovery deadline. Blue Cube
repeatedly informed Cerda that Mulligan had to leave the deposition by 3:00
PM, yet Cerda never asked to conduct the deposition on a different day,
chose to start the deposition at 10:00 AM, and took frequent and extended
breaks. A party cannot rely on Rule 30(d)(1) to compel a witness to spend
multiple days sitting for a deposition when that party’s own choices
precluded completion of a seven-hour deposition in one day. Cf. Walker v.
Harris County, 477 F. App’x 175, 180 (5th Cir. 2012) (“[A] party who does
not diligently pursue discovery is not entitled to relief.” (citing Beattie v.
Madison Cnty. Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001))). The district
court did not abuse its “wide discretion,” JP Morgan, 936 F.3d at 255, in so
concluding.
AFFIRMED.
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