Ferguson v. Extraco Mortgage Co.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 4, 2007
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 06-51453
Summary Calendar
BONNIE WILLENE FERGUSON,
Plaintiff-Appellant,
versus
EXTRACO MORTGAGE COMPANY,
Defendant-Appellee.
Appeal from the United States District Court for
the Western District of Texas
(USDC No. 6:05-CV-80)
_________________________________________________________
Before REAVLEY, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Bonnie Willene Ferguson appeals the district court’s summary judgment
dismissal of her claims of discrimination under the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621 et seq. and retaliation under the Texas Workers’
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Compensation Act, Tex. Lab. Code Ann. § 451.001 et seq. Reviewing the record de novo
under the same summary judgment standard as the district court, we affirm for the
following reasons:
1. Ferguson first asserts that the district court erred in failing to consider as
evidence of pretext its own orders and findings in two companion age
discrimination cases against her former employer, Extraco Mortgage
Company ("Extraco"). Specifically, while Ferguson failed to present any
competent summary judgment evidence related to the alleged age-related
terminations of the two other plaintiffs, she argues that the district court
should have taken judicial notice of its findings that those plaintiffs
established a prima facie case for an ADEA violation in their respective
cases. We disagree.
Federal Rule of Evidence 201 allows a court to take judicial notice
of an "adjudicative fact" if the fact is not subject to reasonable dispute in
that it is (1) generally known within the territorial jurisdiction of the trial
court, or (2) capable of accurate and ready determination by resort to
resources whose accuracy cannot be questioned. Taylor v. Charter Med.
Corp., 162 F.3d 827, 829 (5th Cir. 1998). A court may take judicial notice
of "a document filed in another court . . . to establish the fact of such
litigation and related filings," but generally cannot take notice of the
findings of fact from other proceedings because those facts are usually
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disputed and almost always disputable. Id. at 830. Under Rule 201,
judicial notice is discretionary by the district court, unless it is requested by
a party and the court is supplied with the necessary information. Fed. R.
Evid. 201(c) & (d).
Here, Ferguson did not request the district court to take judicial
notice of the other two cases and the district court's determination of a
prima facie case in the other two lawsuits is not the kind of adjudicative
fact that is subject to judicial review. The facts relevant to whether a prima
facie case was established in the other two cases were subject to reasonable
dispute, and were indeed disputed. That all three cases were before the
same district judge does not alter the nature of those facts nor impose a
higher duty of notice.
Finally, even had the district court taken judicial notice of the
establishment of a prima facie case of discrimination in the other two
lawsuits against Extraco, this would not have satisfied Ferguson's burden to
show pretext. We have acknowledged that other-acts evidence may be
relevant and admissible in a discrimination case to prove an employer's
intent or pretext. Vance v. Union Planters Corp., 209 F.3d 438, 445 & n.8
(5th Cir. 2000). However, that evidence must be presented in competent,
admissible form and is subject to factual contravention. Where, as here, all
three former employees failed to show pretext individually because the
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employer asserted legitimate nondiscriminatory reasons for its actions and
the former employees failed to show that the reason given was false, pretext
is not shown simply by aggregating the prima facie cases. See, e.g.
Cheatham v. Allstate Ins. Co., 465 F.3d 578 (5th Cir. 2006) (assuming
establishment of prima facie ADEA case by nine different plaintiffs, but
finding no showing that employer's legitimate reason for their terminations
was pretextual).
2. Ferguson next asserts that the district court erred in refusing to consider
circumstantial evidence that Extraco retaliated against her for filing a
workers’ compensation claim. This argument is without merit.
Under Texas law, an employee alleging that she was discharged in
retaliation for filing a workers' compensation claim must show that (1) she
filed a workers' compensation claim in good faith, and (2) a causal link
exists between the termination and the filing of the claim. Tex. Lab. Code
Ann. § 451.001. Circumstantial evidence sufficient to establish a causal
link between termination and filing a workers' compensation claim includes:
(1) knowledge of the compensation claim by those making the decision on
termination; (2) expression of a negative attitude toward the employee's
injured condition; (3) failure to adhere to establish company policies; (4)
discriminatory treatment in comparison to similarly situated employees; and
(5) evidence that the stated reason for the discharge was false. Cont'l
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Coffee Prods. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996).
In this case, the district court methodically considered Ferguson's
summary judgment evidence under the Cazarez elements and found she had
failed to circumstantially establish a causal link between her workers'
compensation claim and her termination. On appeal, the only evidence
Ferguson cites as ignored by the district court is the fact that she was
assigned to a different job role following her return to work after her first
work-related injury. However, throughout the underlying lawsuit, Ferguson
staked her retaliation claim on her second workers' compensation injury.
Ferguson presented her allegations of negative treatment following her first
injury for the purpose of establishing pretext in her ADEA claim. The
district court's summary judgment order makes clear that the court fully
considered this evidence in that context.
AFFIRMED.
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