XAVIER RODRIGUEZ, District Judge.
On this day the Court considered Defendant's motion for summary judgment. Doc. No. 20. After careful consideration, the Court GRANTS the motion.
This case arises out of Plaintiff Lisa Reyes's employment relationship with Defendant Texas Health & Human Services Commission ("HHSC"). From January 5, 2009, until her termination on May 25, 2011, Ms. Reyes worked as a Texas Work Advisor in the Office of Eligibility Services ("OES") at HHSC. Ms. Reyes's primary responsibility was to review applications for state and federal benefit programs administered by HHSC. These include the Supplemental Nutrition Assistance Program, the Temporary Assistance for Needy Families program, and Medicaid. Of specific relevance to this case, Ms. Reyes was responsible for adjudicating applications for Medicaid benefits for pregnant women, known as "TP-40" benefits.
Ms. Reyes's has a daughter with disabilities who receives regular therapy. This led Ms. Reyes to request a modified work schedule. Due to the nature of their work, HHSC Work Advisors are generally not permitted to work flexible schedules, although individual managers retain discretion to make reasonable accommodations. Reyes Dep. at 33. Ms. Reyes initially worked under Ms. Maria Hernandez at OES. Although Work Advisors are expected to report by 8:00 A.M. to begin client interviews, Ms. Hernandez allowed Ms. Reyes to come in at either 8:15 A.M. or 8:30 A.M. Nevertheless, this work schedule was not acceptable to Ms. Reyes and she filed an administrative grievance on October 11, 2010. This grievance was resolved when Ms. Reyes was transferred to the supervision of Ms. Phyllis Scott in November, 2010. Ms. Scott was notified of Ms. Reyes' FMLA request for a modified work schedule. The relationship between Ms. Reyes and Scott was initially smooth, but deteriorated in the first months of 2011. Reyes Dep. at 47. Ms. Scott alleges that, despite her efforts to accommodate Ms. Reyes, she would come in late and accomplish less than her coworkers. Doc. No. 20, Ex. 3 at ¶ 3. Ms. Reyes contends that during February 2011 she considered filing a second grievance, but decided against doing so.
Since 2007, Ms. Reyes had been working intermittently as a bartender and waitress at the Cabo Tiki Lounge Bar and Grille ("Cabo"). While she worked at HHSC under Ms. Scott's supervision, Ms. Reyes also worked at Cabo every weekend and also sporadically during the week. Ms. Reyes argues that her job at Cabo never interfered with her performance at HHSC. Reyes Dep. at 118. In January 2011, Ms. Reyes discovered that she had become pregnant. At some point thereafter, she submitted her own application for TP-40 benefits. It is undisputed that Ms. Reyes's TP-40 application did not disclose any income from a second job at Cabo. Ms. Reyes's colleague, Ms. Mary Ann Esquivel, processed Ms. Reyes's TP-40 application. When Ms. Esquivel noticed that the application had been filed by a fellow HHSC employee, she followed protocol and forwarded the application to Ms. Scott. Ms. Scott, who knew that Ms. Reyes worked a second job, became suspicious that the TP-40 application omitted this secondary source of income. Ms. Scott confronted Ms. Reyes about this discrepancy and subsequently concluded that disciplinary measures were appropriate. On May 5, 2011, Ms. Scott met with her own supervisor, Ms. Lynne Moore, along with Ms. Grace Moser, the Regional Director of OES, to discuss discipline for Ms. Reyes. Ms. Scott claims that she initially recommended a reprimand and not dismissal. However, Ms. Reyes contends that Ms. Scott always had recommended that she be dismissed for falsifying information on her TP-40 application. Regardless, it appears undisputed that at the May 5 meeting Ms. Moser decided to terminate, subject to Ms. Reyes being given a chance to respond. Doc. No. 20, Ex. 2. On May 6, 2011, Ms. Reyes was placed on leave and given an opportunity to respond to the charges against her. After reviewing her response and consulting with Ms. Scott and Ms. Moore, Ms. Moser officially terminated Ms. Reyes effective May 25, 2011.
On September 26, 2012, Ms. Reyes filed an original complaint alleging that HHSC violated the Family and Medical Leave Act ("FMLA") by terminating her in retaliation for working under a modified schedule to care for her disabled daughter. On September 23, 2013, HHSC filed this motion for summary judgment. Doc. No. 20. On October 22, 2013, this case was transferred to this Court. Doc. No. 31.
Summary judgment is proper when the evidence 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-252 (1986). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails... to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
The court must draw reasonable inferences and construe evidence in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Although the evidence is viewed in the light most favorable to the nonmoving party, a nonmovant may not rely on "conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence" to create a genuine issue of material fact sufficient to survive summary judgment. Freeman v. Tex. Dep't of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004).
Ms. Reyes's only claim is that she was terminated in retaliation for engaging in protected FMLA activity. The FMLA entitles employees to take reasonable leave for medical reasons, either for themselves or their family members. 29 U.S.C. § 2601(b)(2). Additionally, the Act prohibits employers from discharging or in any other manner discriminating against an individual for opposing any practice made unlawful by the Act. 29 U.S.C. § 2615(a)(2). The Department of Labor has interpreted this statutory provision to forbid employers from terminating employees for having exercised or attempted to exercise FMLA rights. 29 C.F.R. § 825.220(c).
When a plaintiff does not produce direct evidence of discrimination, courts use the McDonnell Douglas burden shifting framework in FMLA cases. Lorentz v. Alcon Labs., Inc., 13-20049, 2013 WL 3368987 (5th Cir. July 8, 2013) (citing Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 768-69 (5th Cir. 2001). Under this framework, Ms. Reyes bears the initial burden of establishing a prima facie case. If she does so, HHSC must articulate a legitimate, nondiscriminatory reason for Ms. Reyes's termination. If HHSC does so, then the burden shifts back to Ms. Reyes to establish by a preponderance of evidence that HHSC's proffered reason is a pretext for discrimination. Id. Alternatively, Ms. Reyes can avoid summary judgment by showing by a preponderance of the evidence that "the employer's reason, although true, is but one of the reasons for its conduct, another of which was discrimination." Ion v. Chevron USA, Inc., 731 F.3d. 379 (5th Cir. 2013); Richardson v. Monitronics International, Inc., 434 F.3d 327, 333 (5th Cir. 2005) (Mixed-motive framework applies to FMLA cases). If the employee proves that discrimination was a motivating factor in the employment ...