Parker v. Georgia-Pacific Corp.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 10, 2007
No. 06-31219
Summary Calendar
Charles R. Fulbruge III
Clerk
MARY EUNICE PARKER
Plaintiff-Appellant
v.
GEORGIA-PACIFIC CORPORATION
Defendant-Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:05-CV-229
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Mary Eunice Parker appeals the district court’s summary judgment in
favor of Georgia-Pacific Corporation (“GP”), denying Parker’s claim that she was
terminated unlawfully on March 11, 2004 in violation of the Family and Medical
Leave Act (“FMLA”), 29 U.S.C. § 2601. GP files two motions with this court: (1)
to dismiss Parker’s appeal for failure to comply with 5TH CIR. R. 30, and (2)
to strike Parker’s record excerpts A-1 through A-3, A-5 through A-10,
*
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 R. 47.5, the court has determined that this opinion should not be published and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.
A-12 through A-13, and Appendix A to Parker’s brief.
Regarding GP’s motions, it is noted that Parker’s record excerpts A-1
through A-3, A-5 through A-10, A-12 through A-13, and Appendix A
to Parker’s brief were not filed with the district court and, therefore, are not
contained in the record on appeal. Parker’s actions on appeal are not
sufficiently egregious to warrant dismissal. However, “[t]his court’s inquiry is
limited to the summary judgment record before the trial court: the parties
cannot add exhibits, depositions, or affidavits to support their positions on
appeal. . . .” Topalian v. Ehrman, 954 F.2d 1125, 1131 n.10 (5th Cir. 1992).
Therefore, GP’s motion to strike is granted.
The district court found that Parker did not satisfy her burden of
production in rebutting each of GP’s proffered justifications for termination,
namely that Parker was fired for “dishonesty.” Furthermore, the district court
found that Parker did not establish that GP’s nondiscriminatory rationale for
termination was pretextual. Parker argues that the district court erred in
granting summary judgment to GP because there are genuine issues of material
fact concerning whether she was terminated for actions occurring during or
related to her FMLA-approved leave on the date of termination.**
This court reviews de novo the district court’s grant of summary judgment.
Melton v. Teachers Ins. & Annuity Ass’n of America, 114 F.3d 557, 559 (5th Cir.
1997). Summary judgment is appropriate only where there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Clark v. America’s Favorite Chicken Co., 110 F.3d 295, 297
(5th Cir. 1997).
**
Parker also argues for the first time that she was a pro se litigant and should have received additional
time to conduct discovery. This argument lacks merit because Parker was not a pro se litigant at any stage of
the district court proceedings.
Parker has not shown that the district court erred in granting summary
judgment in favor of GP as she has not shown that there were genuine issues of
material fact. The undisputed evidence established that Parker was granted
FMLA-approved leave beginning at 2:00 p.m. on March 11, 2004. The
undisputed evidence also showed that, before 2:00 p.m., Parker falsely claimed
a machine was repaired, was insubordinate towards her supervisors, neglected
her duties, and left her job earlier than requested or approved. These actions
support GP’s termination of Parker. Parker had the burden to bring forth
evidence that GP’s reason for termination, namely Parker’s “dishonesty,” was
“not the true reason for the employment decision and that the real reason was
the plaintiff’s participation in the protected activity.” Chafflin v. John H. Carter
Co., Inc., 179 F.3d 316, 320 (5th Cir. 1999). Parker has not met this burden.
Therefore, the judgment is
AFFIRMED; APPELLEE’S MOTION TO DISMISS DENIED;
APPELLEE’S MOTION TO STRIKE GRANTED.