Johnson-Luster v. Secretary of the Army

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BARBARA JOHNSON-LUSTER CIVIL ACTION

VERSUS NUMBER: 19-2235

CHRISTINE WORMUTH, SECTION: “F” (5)

SECRETARY OF THE ARMY, ET AL.

ORDER

Before the Court is the Motion for Summary Judgment (Rec. doc. 45) filed by

Defendant, Christine Wormuth, Secretary of the Army (“Defendant”). Plaintiff, Barbara

Johnson-Luster, has filed an opposition to the motion. (Rec. doc. 66). Having reviewed the

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Ip.l eadinBgas cakngdr tohuen cdase law, the Court rules as follows.

On April 20, 2015, the U.S. Army Corps of Engineers (“USACE”), New Orleans

District, Construction Division hired Plaintiff as an Office Automation Assistant, GS-0326-

05. (Rec. doc. 45-4 at p. 116; Rec. doc. 45-10 at p. 360). She was hired through the

Louisiana Vocational Rehabilitation Service, which connects disabled employees with

employers. (Rec. doc. 45-10 at p. 362-63). To participateI di.n the program, Plaintiff was

required to demonstrate evidence of a severe disability. ( at p. 374). Plaintiff suffers

from dysthymia, or chronic depression, and her doctor has diagnosed her with an

“adjustment disorder” based on her depression. (Rec. doc. 45-3 at p. 46; Rec. doc. 45-10 at

p. 370).

Steve Conravey, Deputy Chief oIfd C. onstruction Division, GS-0810-14, interviewed and

selected Plaintiff for the position. ( at pp. 368, 582). At the time of Plaintiff’s hire,

Conravey was aware of Plaintiff’s disability and her designation as a “Schedule A”

appointment, which referred to the federal regulation concerniIndg. the hiring of employees

with intellectual, severe physical, or psychiatric disabilities. ( at pp. 367-68, 535-36).

Conravey ackIdn.owledged, however, that Plaintiff was able to perform the essential functions

of her job. ( at p. 653). Conravey was Plaintiff’s first-level supervisor; her second-level

supervisor was Stuart Waits, Chief of Construction Division. (Rec. doc. 45-4 at p. 108).

Plaintiff’s primary job duties were typing, distributing m ail, maintaining the copier,

researching, and other administrative duties. (Rec. doc. 45-5 at pp. 125-30). On June 8,

2015, Plaintiff was placed on a 30- to 60-day informal detail from the Construction Division

to the New OrleaIdn.s Area Office (“NOAO”). The NOAO was in the same building but on a

different floor. ( at pp. 133-34). The 30- to 60-day detail was intended to train Plaintiff

toId g.ain knowledge of administrative duties from the more senior administrative specialists.

( ). During the detail, Plaintiff reported to Chris Wagner, Assistant Area Engineer, NOAO,

although Conravey remained her supervisor of record. (Rec. doc. 45-10 at pp. 392-93).

In late May 2015, Plaintiff complained to Conravey about a co-worker, Marianna

Zimmerman, who reprimanded her in front of Waits and also allegedly mIda.de inappropriate

comments about Plaintiff to another employee, James St. Germain. ( at pp. 457-63).

Conravey discussed these matters with Zimmerman, St. Germain, and Waits. (Rec. doc. 45-

9 at pp. 310-12).

On or about June 11, 2015, Conravey met with Plaintiff to discuss several work

issues, including training. (Rec. doc. 45-3 at pp. 57-59). During the discussion, Conravey

asked Plaintiff if she would consider a “downgrade” to a GS-04 trainee position, but Plaintiff

– believing the “downgrade” to be an actual demotion – stated that she was not interested

in any “downgrade.” (Rec. doc. 45-10 at pp. 446-57).

On July 6, 2015, Plaintiff filed an informal Equal Employment Opportunity (“EEO”)

complaint. (Rec. doc. 45-3 at pp. 26-27). On July 17, 2015, after six weeks, Conravey

ended Plaintiff’s informal detail to the NOAO and returned her to the Construction Division.

(Rec. doc. 45-5 at pp. 133-34; Rec. doc. 45-10 at pp. 656-58). On July 23, 2015, Conravey

met with Plaintiff and her co-worker, Patsy Mefferd, to discuss a distribution of

administrative duties between the women. (Rec. doc. 45-10 at p. 615).

On July 24, 2015, Christopher Moore, EEO Manager, met with Plaintiff and Conravey

in Conravey’s office to informally resolve Plaintiff’s concerns outlined in her EEOC

complaint. (Rec. doc. 45-9 at pp. 303-06). Shortly after that meeting, Plaintiff took leave on

August 3, 2015. (Rec. doc. 45-6 at p. 178). On August 17, 2015, Plaintiff submitted a letter

from her physician, in which he recommended that she be moved to a different supervisor.

(Rec. doc. 45-3 at pp. 45-46). Also on August 17, 2015, Plaintiff filed a formal complaint of

discrimination with the Equal Employment Opportunity Commission (“EEOC”) in which

she alleged that she was subjected to discrimination by Defendant on tIhde. basis of race, sex,

disability, and retaliation for having filed her original EEO complaint. ( at pp. 19-21).

On August 20, 2015, Defendant offered to reassign Plaintiff to the Engineering

Division and asked her if this would resolve of her formal EEO complaint, but Defendant

did not agree to grant Plaintiff administrative leave for her leave without pay. (Rec. doc.

45-6 at p. 175). The next day, August 21, 2015, Plaintiff submitted a notice of resignation,

claiming constructive discharge to Conravey via text message. (Rec. doc. 45-5 at 136-39;

Rec. doc. 45-6 at pp. 177-200). On September 2, 2015, Plaintiff added the claim of

constructive discharge to her formal EEOC complaint. (Rec. doc. 45-3 at 48-52; Rec. doc.

45-9 at 308). An investigation was requested and the Investigations and Resolutions

Directorate (“IRD”) held a fact-finding conference. (Rec. doc. 45-9 at pp. 316-40). At the

conclusion of the investigation, Plaintiff was provided a copy of the investigative report and

requested a hearing before an AJ, but the EEOC declined to set a hearing in the matter.

(Rec. doc. 45-11). The EEOC entered a final decision and judgment on March 20, 2017,

prernimdaer fiancgi ejudgment in favor of Defendant and finding that Plaintiff had failed to establish a

case that similarly-situated individuals outside her protected class of disability

were treated more favorably with regard to race discrimination, sex discrimination,

retaliation, and constructive discharge. (Rec. doc. 45-11). Plaintiff received her Notice of

Right to Sue from the EEOC on December 14, 2019. (Rec. doci.n 1t eart apl. i1a3).

On March 8, 2019, Plaintiff filed etth isse qla.wsuit under, , Title VII of the Civil

Rights Act of 1964, 42 eUt. Ss.eCq. .§ 2000e , and the Americans with Disabilities Act of

1990, 42 U.S.C. § 12112 , against Defendants Secretary of the Army, Steve Conravey,

Richard Hansen, Austin Appleton, Christopher Moore, Jacqueline Johnson, Marian

Askegren, Marianna Zimmerman, Robert Barton, and Angela Atkins. (Rec. doc. 1).

Plaintiff alleges discriminatory conduct in the form of terminating her, failing to promote

her, failing to accommodate her disability, unequal terms and conditions of empIldo.yment,

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retaliation, and harassment based one xh pear rrtaece, color, sex, and national origin. ( ). On

August 18, 2021, this Court – on the /consent motion of Defendant – dismissed all

individual Defendants, leaving Defendant Christine Wormuth, Secretary of the Army, as the

sole defendant. (Rec. doc. 50).

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II. Summary Judgment Standard

Summary judgment is warranted when “the movant shows that there is no genuine

dispute as to any matseerei aall sfaoc Ct ealnotde xth Ceo mrpo. vva. nCta itsr eetnttitled to judgment as a matter oLfi tltalew v.”.

FLieqdu. iRd . ACiirv . CPo. r5p6.(a); , 477 U.S. 317, 322-23 (1986);

, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). “When

assessing whether a dispute to any material fact exists, [the Court] consider[s] all of the

evidence in theD reelctao r&d Pbiunte rLeafnradi nC[os.] v f. rNoamti omnawkiidneg Acgrreidbiubsiilniteys sd Ientes.r Cmoi.nations or weighing

the evidence.” , 530 F.3d 395, 398-

99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party,

but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and

conclusions Goaf lilnawdo’ va.r eP riencsisuifofnic iAemnt. Ctoo repi.ther support or defeat a motion for summary

judgment.” , 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

10A Charsleees aAllsaon L Wittrlieght & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed.

1983)); , 37 F.3d at 1075. “No genuine dispute of fact exists if the record

tEaEkOeCn va. sS iam wbahkoil,e L tcdo.uld not lead a rational trier of fact to find for the nonmoving party.”

, 767 F.3d 475, 481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the burden of

proof at trial, the moving party “must come forward with evidence wIhnitc'hl Swhoourtlsdt o‘epn, tIintlce. vit.

Rtoa laly d’si,r Iencct.ed verdict if the evidence went uncontroverted at tGroialdl.’e”n Rule Ins. Co. v. Lease

, 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting ,

755 F. Supp. 948, 951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by

either countering with evidence sufficient to demonstrate the “existence of a genuine

dispute of material fact,” or by “showing that the moving party’s evidence is so sheer that it

may notI dp.ersuade the reasonable fact-finder to return a verdict in favor of the moving

party.” at 1265.

If the dispositive issue is one on which the nonmoving party will bear the burden of

proof at trial, the moving party may satisfy its burden by pointing out that the evidence in

the recoSrede Cise liontseuxfficient with respect to an essential element of the nonmoving party’s

claim. , 477 U.S. at 325. The burden then shifts to the nonmoving party, who

must, by submSieteti nidg. or referring to evidence, set out specific facts showing that a genuine

issue exists. at 324. The nonmovant may not rest upon theS epe,l eea.gd.i,n igds. bLuittt lme ust

identify specific facts that establish a genuine issue for resolution. ; , 37

F.3d at 1075 (“Rule 56 ‘mandates the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential toC etlhoatte xparty’s case, and on which that party

wIIIil. l beaTrh teh eM bcuDrodnenne olfl pDroouogf laats t Sritaaln.’”d a(qrdu oting , 477 U.S. at 322 (emphasis added)).

McDonnell Douglas Corp. v. Green

The burden shifting framework of , 411 U.S. 792

(1973), and its progeny establish the respective burdens and standards for plaintiffs and

defendants on a motDiounn cfoarn svu. mUmniav.r yo fj uTdegxmase Hnte afoltrh c aSucis. eCst ro.f aatc tHioonu sutnonder Title VII and the

Rehabilitation Act. Septimus v. Univ. of Houston , 469 F. App’x 364,

368 & n.6 (5th Cir. 2012); , 399 F.3d 601, 6p0r8im (5a thfa cCiier. 2005).

Under this framework, Plaintiff bears the initial burden of provinMg caD onnell Doug lcaasse of

retaliation or discriminatiopnr bimy aa fparceieponderance of the evidence. McDonnell Dou, g4l1a1s

U.S. at 802. To establish a case of discrimination under the

burden-shifting framework, “an employee must demonstrate that she ‘(1) is a member of a

protected group; (2) was qualified for the position at issue; (3) was discharged or suffered

some adverse employment action by the employer; and (4) was replaced by someone

outside his protected group or was treateGda lrersisso nfa vvo. rTarbeglyr ethan other similarly situated

employees outside the protected group.’” Morris v. To, wNno .o Cf VIn 1de9p-1en3d0e0n8t, 2021 WL

6050179, at *2 (E.D. La. Dec. 21, 202W1i)ll i(sq uvo. tCinlegc o Corp. , 827 F.3d

396, 400 (5th Cir. 2016) (quoting , 749 F.3d 314, 319-20 (5tphr iCmira.

2fa0c1ie4)). An individual who alleges a retaliation claim under Title VII establishes a

case by demonstrating that: (1) she engaged in a protected activity; (2) an adverse

employment action occuSrerpetdim; aunsd (3) a causal link existed between the protected activity

and the adverse action.p rima faci,e 399 F.3d at 609.

To establish a case of discrimination under the Rehabilitation Act, a

plaintiff must show that she was: (1) disabled within the meaning of the Act; (2) subjected

to an adveDrsuen acactnion solely by reason of her disability; and (3) otherwise qualified for the

program. , 469 F. App’x at 368. To be covered by the Rehabilitation Act, a person

must have a “physical or mental impairment that substantially limits one or more life

activities.” p 4r2im Ua.S f.aCc. i§e 12102(1)(A).

If a case is made, a presumption of retaliation/discrimination arises, and

the burden then shifts to the employer to proBdruocaed wa aleyg vit. iUmnaittee,d n Sotnadteissc Driempi’tn aotfo Hryo mreealasonnd

fSoerc .the alleged adverse employment action.

, Civ. A. No. 04-1902, 2006 WL 2460752, *3R e(eEv.Des. vL.a S. aAnudge.r s2o2n, P2lu0m06b)i.n g“D Perfoednsd.,a Inntc’s.

burden is one of production, not persuasion. . . .” ,

530 U.S. 133, 142 (2000). A defendant must merely set forth, through admissible evidence,

reasons for its actions which, if believed by the trier of fact, would support a finding that

St. Mary’s Honor Ctr.

uv.n lHaiwckfusl discrimination was not the cause of the employment action.

, 5S0m9 itUh. Sv.. A5a0r2o, n5’s0 I7n c(.1993). This causes the presumption of discrimination to

dissipate. , 325 F. Supp. 2d 716, 724 (E.D. La. 2004).

At the third stage of the burden-shifting framework, the plaintiff is given a “full and

fair opportunity to demonsPtrraictee ”v .t hFaetd . tEhxep dreesfsendant’s proffered reason is a pretext for

iHnitceknstional discrimination. , 283 F.3d 715, 721 (5th Cir. 2002) (citing

, 509 U.S. at 507-08). On summary judgment at the third step, the plaintiff must

substantiate her claim of pretext throuPgrhic eevidence demonstrating that discrimination lay at

the heart of the employer’s decision. , 283 F.3d at 721. Even when such a showing is

made, however, it will not always be enough to prevent summIda.ry judgmReenevt eisf no rational

factfinder couRlede cvoesn clude that the action was discriminatory. (citing , 530 U.S. at

148). As the court explained,

The ultimate question is whether the employer intentionally discriminated,

and proof that the employer’s proffered reason is unpersuasive, or evdeins

obviously contrived, does not necessarily establish that the plaintiff’s

proffered reason . . . is correct. In other words, it is not enough . . . to

believe [sic] the employer; the factfinder must believe the plaintiff’s

explanation ofp irnitmena tfiaocniael discrimination.

. . . Certainly there will be instances where, although the plaintiff has

established a case and set forth sufficient evidence to reject the

defendant's explanation, no rational factfinder could conclude that the action

was discriminatory. For instance, an employer would be entitled to

judgment as a matter of law if the record conclusively revealed some other,

nondiscriminatory reason for the employer's decision, or if the plaintiff

created only a weak issue of fact as to whether the employer's reason was

untrue and there was abundant and uncontroverted independent evidence

that no discrimination had occurred. . . .

530 U.S. 146-48 (internal citations omitted). “Whether summary judgpmriemnat ifsa caipepropriate

depends on numerous factors, including the strength of the plaintiff’s case, the

probative value of the proof that the employer’s explanation is false, and anIyd . other

eIVv.i dencAen tahlayts siuspports the employer’s case and that properly may be considered.”

A. Re asonable Accommodation

An employer’s failure to provide a disabled employee with a reasonable

accommodation that would enable her to perform her job constitutes discrimination. As

defined by the ADA, the term “discrimination” includes “not making reasonable

accommodations to the known physical or mental limitations of an otherwise qualified

individual with a disability.” 42 U.S.C. §12112(5)(A).

To prove a failure-to-accommodate claim, a plaintiff must demonstrate that she is

“(1) a qualified individual with a disability, (2) the disability is known to the employer, and

S(3to) ktehse v .e Nmipellsoeyner failed to make a reasonable accommodation for the known disability.”

, 751 F. App'x 451, 454 (5th Cir. E2.0E1.O8.)C. . Av. cLlHaiCm G fropr. ,f Ianilcu.re to accommodate

is distinct from a claim of disparate treatment. , 773 F.3d 688, 703

(5th Cir. 2014).

To meet her burden of articulating a suitable accommodation, a plaintiff neKeadr loikn lvy.

Csuoglvgienst an accommodation, the costs of which, facially, do not exceed the benefits.

, 15 F. Supp. 3d 700, 709 (E.D. Mich. 2014) (recognizing reasonable accommodations

may include environmental mitigation and employee communication). Reasonable

accommodations are “[m]odifications or adjustments that enable a covered entity’s

employee with a disability to enjoy equal benefits and privileges of employment as are

enjoyed by its other similarly situated employees without disabilities.” 29 C.F.R. §

1630.2(o)(1). To be reasonable, the accommodation must not impose an “undue hardship”

see

on the employer. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. §§ 1630.2(o), (p) (“An agency is

required to make reasonable accommodation to the known physical and mental limitations

of a qualified individual with a disability unless the agency can show that accommodation

would cause an undue hardship.”). “[I]n the Borredainuaxr vy. cBaosleli nthgeer t rSiheirp oyaf rfadcs,t Ld.eLc.Cid. es whether

a suggested accommodation is reasonable.” Alford v. Teleplex, I, nNco.. CV-16-

2331, 2018 WL 3329059, at *14 (E.D. La. July 5, 2018) (citing , 95 F.3d

48, at *2 (5th Cir. 1996)).

Whether a plaintiff is qualified for a given job – factor (1) – is based on whether (1)

the individual can perform the essential functions of the job and (2) if not, whether

rSeaapspo nv.a Dbloen aochcooemmodation by the employer would enable her tCoh apnedrfloerr mv. tChiotys eo ff uDnacltliaosns.

, 539 F. App’x 590, 595 (5th Cir. 2013) (citing , 2

F.3d 1385, 1393-94 (5th Cir. 1993)). A plaIind.tiff bears the burden of showing a failure to

accommodate under the Rehabilitation Act. at 596.

The Army concedes that Plaintiff is disabled and admits that Plaintiff and Conravey

discussed reasonable accommodations in her initial job interview, in which Conravey

determined that Plaintiff was qualified for the position. (Rec. doc. 45-1 at p. 19). Indeed,

Conravey specifically acknowledged that Plaintiff was able to perform the essential

functions of her job. (Rec. doc. 45-10 at p. 653). Plaintiff contends that the Army argues

only that it met its obligation to provide reasonable accommodations. (Rec. doc. 45-1 at pp.

3

19-20).

3

Plaintiff contends that the Army does not argue that her EEOC complaint fails to adequately preserve her

accommodation claim. Plaintiff is correct. While Defendant mentions that Plaintiff failed to include the claim

i.e.

Plaintiff cites Conravey’s failure to accommodate ( , alter) his behavior as evidence

of Defendant’s failure to accommodate her disability. Plaintiff notes that Conravey knew

from the initial interview that she has a psychiatric disability involving increased stress

and anxiety, although he was unclear as to the exact nature of her disability. (Rec. doc. 45-

10 at pp. 582-83). She maintains that he reasonably should have undertaken efforts to help

control her work environment so that she could work effectively. Instead, she argues that

he gratuitously and repeatedly commented on her mental stability in front of others,

stating that she had not completed her “psych eval,” using her as an example of a suicidal

employee, and twice stating that she should not be allowed near the cake knives. (Rec. doc.

45-3 at p. 27; Rec. doc. 45-10 at pp. 440, 500). She asserts that he failed to intervene after

another employee (Marianna Zimmerman) yelled at and belittled her for asking a work-

related question to a supervisor despite knowing that Plaintiff’s disability required clear

and detailed instructions and the opportunity to ask questions of her supervisors. (Rec.

doc. 45-10 at pp. 434-35). Plaintiff contends that Conravey also refused to meet with her

and Wagner to discuss Plaintiff’s disability and accommodations while Plaintiff was on an

informaIld .training detail overseen by Wagner, stating that it was not his “management

style.” ( at pp. 391-92). This behavior, she maintains, failed to accommodate her known

psychiatric dIdis.ability – and further exacerbated it when Conravey told Plaintiff, “no one

likes you.” ( at pp. 422, 427-28).

Contrary to Plaintiff’s assertions, DefendanItd n. otes that Plaintiff and Conravey talked

about accommodations during her interview. ( at pp. 371-72). Specifically, Plaintiff

testified that she asked for flextIidm.e during lunch, downtime, and instructions in writing as

reasonable accommodations. ( at 389-91). She also requested to be present to discuss

her condition with a new supervisor. The parties discussed these accommodations duIdri. ng

her interview, and again when they reviewed her performance plan on May 5Id, .2015. ( at

394-95). Plaintiff acknowledged that Conravey agreed to her requests. ( at 400-01).

Plaintiff later testified that she asked for an ergonomic chair, that DefenIdda. nt was

attempting to obtain with vocational rehabilitation when Plaintiff resigned. ( at 402,

525-26)I.d .Indeed, Conravey himself called Verniece Brown to obtain Plaintiff’s ergonomic

chair. ( at pp. 592-93). Plaintiff also testified that there were no other similarly-situateIdd.

employees who were treated more favorably than her with regard to accommodations. (

at p. 406).

The evidence of recofordr wrehviecahl sP ltahiantt iDff eafeskneddant reasonably accommodated Plaintiff

for those accommodations . This is a crucial distinction between

Plaintiff’s argument and the case law on which she relies. If an employee fails to inform her

employer that she needs a reasonable accommodation iSne ea, ec.egr.,t Eai.En. Oa.rCe. av,. Cith iesv rnoont Pshimillpiplys

Cphreesmu.m Ceod. that an employer should know of such a need.

, LP, 570 F.3d 606, 621 (5th Cir. 2009) (“This court has recognized that ‘where the

disability, resulting limitations, and necessary reasonable accommodations, are not open,

obvious, and apparent to the employer, the initial burden rests primarily upon the

employee . . . to specifically identify the diTsaaybliolirt yv . aPnrdin rceipsaull tFining. lGimrpi.t, aItnico.ns, and to suggest

the reasonable accColomumatorde avt.i oRnusn.’y” o(nciting , 93 F.3d 155, 165

(5th Cir. 1996)); , 82 F. App'x 972, 973 (5th Cir. 2003) (“Even if one

assumes that Clouatre effectively notified the employer of his mental disability, an

Memonptlogyoemee rhy avs. Baanr robligation to state how the employer may accommodate him.”);

, 507 F. Supp. 3d 711, 727 (N.D. Tex. 2020) (“To prevail on a failure to

accommodate claim, a plaintiff must show that the entity knew of the disability and its

consequential limitations, either because the plaintiGffr ereenq uve. sMteedd caon H aeaccltohm Smolos.d oaft iToenx aosr,

bL.eLc.Cau. se limitation's nature was open and obviouas.f”f)'d; sub nom. Green v. Medco Health Sols.

of Tex, a9s4, 7L .FL.. CS.,u pp. 2d 712, 726 (N.D. Tex. 2013) ,

560 F. App'x 398 (5th Cir. 2014) (“Defendants cannot be made responsible

for failing to accommodate Plaintiff at that timTe asyilnocre no specific accommodations were

requested by Plaintiff. . . .”). As the Court held in ,

Once such a request [for an accommodation] has been made, “[t]he

appropriate reasonable accommodation is best determined through a

flexible, interactive process that involves both the employer and the qualified

individual with a disability.” 29 C.F.R. § 1630.9, App. (1995). In other words,

once an accommodation is properly requTehsutes,d i,t itsh teh er eesmppolnosyiebei'lsi tiyn itfioarl

fraesqhuieosnt infogr a arne aasoccnoamblme oadccaotimonm owdhaictiho nt riisg sghearrs etdh be eetwmepelony tehre's eombplilgoayteioen a ntdo

epmarptilcoiypeart.e i2n9 t hCe.F i.nRt. e§r a1c6ti3v0e. 9p,r oAcpepss. (o1f 9d9e5te).r m ining one. If the employee fails

to request an accommodation, the employer cannot be held liable for failing to

provide one.

93 F.3d at 165 (emphasis added).

While it is uncontroverted that Defendant knew of Plaintiff’s psychiatric disability at

the time of her interview and initial hire, it is also uncontroverted that Plaintiff never

explained the precise nature of her psychiatric disability to Defendant. Indeed, Colvaney

testified that he had never heard of dysthymia until Plaintiff’s former counsel sent him a

letter in which she used the term. (Rec. doc. 45-10 at pp. 582-83). Plaintiff asked for

certain, specific accommodations that Defendant pthroavt idsheed raesq ubeesstte dit could, and Plaintiff

does not complain of any of the accommodations . Plaintiff complains

only of Conravey’s failure to accommodate or alter his behavior toward her, but there is no

allegation in Plaintiff’s complaint, nor any argument in her brief, that she brought the need

for any such specific accommodation to the attention of anyone at her place of employment.

Having failed to bring this failure to accommodate to the attention of anyone precludes her

from bringing such a claim now, as her failure to request the accommodation means that a

need toB p. rovidDei istp waarsa tnee Tverre tartimggeenret d. This claim fails.

1. Unequal Work

Plaintiff also asserts a disparate-impact claim, alleging that Defendant treated her

less favorably than other employees without a psychiatric disability. When a plaintiff

MclaciDmosn ndeilslp Daoruagtela tsreatment and relies on circuWmastdaen vti. aBl reenvindaennce, the Court applies the

burden-shifting framewoarfkf'.d , Civ. A. No. 13-5442, 2015

WL 3849310, at *9 (E.D. La. June 22, 2015), , 647 F. App'x 412 (5th Cir. 2016). Plaintiff

also alleges through her deposition testimony that she presents direct evidence of

discrimination because Conravey offered her a demotion to a GS-04 employee because he

did not understand her disability when he hired her. (Rec. doc. 45-10 at p. 446). In short,

she maintains that once Conravey understood the nature of her disability, he sought to take

adverse action against her. prima facie

As noted above, a plaintiff establishes a case of discrimination by

demonstrating that: (1) she suffers from a disability and is qualified for the job; (2) she was

subject to an adverse Deamigplleo yvm. Leinbet ratcyt iLoinfe; Iannsd., (C3o). she was treated less favorably than non-

disabled employees. , 70 F.3d 394, 396 (5th Cir. 1995). There

is no dispute that Plaintiff has a disability and was qualified – at least in Conravey’s opinion

– to perform t he functions of her job. Accordingly, only the second and third elements are

at issue here.

Adverse employment actions are those relating to ultimate employment decisions

sPuecghra mas v.h Hiroinnge,y wgerlaln, Itnincg. leave, discharging, promoting, deBmreoatuinx gv, . Caintdy ocf oGmaprleannsdating.

, 361 F.3d 272, 282 (5th Cir. 2004); , 205

F.3d 150, 157 (5th Cir. 2000). Additional examples of adverse employment actions include

negative performance evaluations affecting the plaintiff’s conditions of employment,

modification of Fjoebn ndeuyt ive.s D, aankdo thao, sMtiilnen wesoortkai n&g Ec.o nRd.Ri.t iCoon.s that inhibit the plaintiff’s ability

to do her job. , 327 F. 3d 707, 717-18 (8th Cir.

2003) (holding that employee subject to conditions creating a Vcaolnes tvr.u Gctrievaet dNisecchka rWgea toerr

Pcoonllsuttriuocnt Civoen tdreoml Doitsito.n suffered adverse employment action)L; ong v. Thomson Inc.

, 80 F. Supp. 3d 426, 434 (E.D.N.Y. 2015); Hernandez-T, oNrore. s9 9v-.

CInVt-e1r6co9n3t,i n2e0n0t0al WTrLa d1in5g8,6 I0n7c.8, at *6 (E.D. Pa. Oct. 24, 2000) (citing

, 158 F.3d 43, 47 (1st Cir. 1998). Employment actions that do

not affect job duties, compensation, or Pbeegnreafmits are not adverse actions within the context

of the disparate treatment analysis. , 361 F. 3d at 282. Evidence of disparate

treatment includes when the empSloeyee ee.sg .,a rDeu trrue avt. eCdit yle sosf fHaovuosrtaobnly in terms of discipline,

training, and work assignments. , 30 F.3d 1494 (5th Cir.

1994) (holding employer liable when it “subjected [plaintCiflfa] yt vo. Udnisipteadr aPtaer ctreel aStemrve.,n Itn cin.

training, work assignments, evaluations, and promotions.”); ,

501 F.3d 695, 711 (6th Cir. 2007) (finding evidence that “UPS deprived [plaintiff] of

training to which he was entitled on the basis of his MraccDeo nwnaesll eDvoiudgelnacse of disparate

treatment”). The general inquiry under this part of the framework is

whether Plaintiff was treated less favorably than “other similarly situated employees who

Daigle

were not members of the protected class, under nearly identical circumstances.” , 70

F.3d at 396.

Plaintiff alleges that Defendant gave her more work than any other GS-05

administrative employee. (Rec. doc. 45-10 at 169-76). Specifically, she claims that she was

the only GS-05 employee expected to manage credit card accounts, reconcile bank

statements, process Purchase Requests and Commitments (“PR&Cs”), keep up with all the

loIdg. books, and process travel orders, in addition to all her other administrative duties.

( ). Plaintiff argues that when Defendant argues that Plaintiff performed “most” of the

tasks of her “predecessor,” it is actually comparing her to a higher-rated GS-07 employee,

not a similarly-situated GS-05 employee. (Rec. doc. 45-1 at p. 10). Plaintiff compares

herself to Patsy Mefferd (white, female, disabled), Marion BIrda.kel (white, female), Jan

Detwiler (white, female), and Helois Alphonse (black, female). ( ). All of these employees

were GS-05 administrative personnel who worked for Conravey’s suIbdo.rdinate supervisors,

except for Mefferd, who worked directly for Conravey like Plaintiff. ( ).

Plaintiff also contends that Conravey suggested that she accept a demotion to a GS-

04 employee with less pay and, when she declined, urged her to reconsider and reminded

her that he would be writing her review as a higher-ranked GS-05 employee instead of a

lower-ranked GS-04 employee. (Rec. doc. 45-10 at p. 446). She maintains that Conravey’s

offer was an ultimatum requiring her to choose between two adverse employment actions

– either a demotion or a negative review that would likely affect her ability to transition

from an “overhire” into a permanent GS-05 position. Plaintiff further argues that she was

subject to working conditions in which she could not reasonably function as a person with

a psychiatric disability because she was repeatedly ridiculed and belittled and told “no one

likes you.” Being subject to such conditions prevented her fromFe npneeryforming her work and

compelled her to resign – itself an adverse employment action. , 327 F.3d at 717-18.

While Defendant does not dispute that Plaintiff is a member of a protected class

(black, female, and disabled), it argues that Plaintiff is not similarly situated to any of the

comparators that she cites except for Mefferd. A “comparative employee,” or comparator,

is a similarly-Bsrityuaantte dv . iCnodmivpiadsusa lG rwp.h oU SAis Innco.t in the same protected group as the

complainant. , 413 F.3d 471, 478 (5th Cir. 2015). An

employee who proffers a fellow employee as a comparator must demLoenes.t vr.a Ktea nthsaast Ctihtey

eS.m Rpyl.o Cyom. ent actions were taken “under nearly identical circumstances.”

, 574 F.3d 253, 260 (5th Cir. 2009) (internal quotation omitted). “The employment

actions being compared will be deemed to have been taken under nearly identical

circumstances when the employees being compared held the same job or responsibilities,

shared the same supervisor or had their employment status detIedr.mined by the same

person, and have essentially comparable violation histories.” (internal citations

omitted).

Plaintiff worked as a GS-05 Office Automation Assistant directly under Conravey.

Brakel, Detwiler, and Alphonse all worked in the area office downstairs for Conravey’s

subordinate supervisors. (Rec. doc. 45-10 at 472). Pursuant to case laLwe,e these third parties

simply cannot be comparators as they were supervised by others. , 574 F.3d at 260.

Only Mefferd was directly under Conravey’s supervision. (Rec. doc. 45-10 at p. 508). In

addition, all of the alleged comparators are female. Plaintiff has failed to identify a male

employee who was treated more favorably under similar circumstances. Moreover,

prima facie

Mefferd is disabled. Thus, Plaintiff can only establish a case of discrimination

based on race and only as it relates to Mefferd, who is white. prima facie

Defendant does not truly dispaurtgeu tehnadto Plaintiff ha s established a case of

discrimination. Defendant assumes , however, that it has proffered a legitimate

non-discriminatory reason for its distribution of administrative duties. Plaintiff’s

supervisor, Conravey, explained that Mefferd was initially assigned the timekeeping duty

for approximately 60 employees because timekeeping was much more labor-intensive and

specialized. (Rec. doc. 45-10 at p. 607). Based on Mefferd’s intent to retire, Conravey has

bIede. n reluctant to start her on anything new, so she primarily performs timekeeping duties.

( at p. 610). Her timekeeping duties generally keep her busy durinIgd .the whole day,

although she does have other duties, like checking the copy machines. ( at pp. 613-14).

Conravey explained that on July 23, 2015, after Plaintiff returned from her detail,I dh.e met

with Plaintiff and Mefferd to discuss distribution of the administrative duties. ( at p.

615). The three discussed all of the administrative tasks in the office (based on Mefferd’s

intent to retire), and ConIrda. vey asked Plaintiff and Mefferd for their input on who would

perform which duties. ( Id.at p. 615). It was agreed that Plaintiff would take on some of

the timekeeping duties. ( ). At the end oIfd .the meeting, Conravey thought that everyone

had agreed to the distribution of duties. I d(. at pp. 65-26). He only later discovered that

Plaintiff was not happy with her duties. ( ).

With regard to the other administrative employees on the lower levels of the

building who work for Conravey’s subordinate supervisors, they service approximately 70

employees, the majority of them field employees and contractors, as opposed to PIlda.i ntiff’s

focus on servicing three offices on the third floor and high-level visitors to Waits. ( at pp.

617-18). While these employees are at the Isda.me GS-05 level as Plaintiff, their interactions

and responsibilities entail different tasks. ( at pp. 617-21). According to Conravey, it is

more difficult to make sure the field employees have their time registered, and there is

more travel involvedI d–. that is why the division has more administrative personnel than

Plaintiff’s division. ( ). Conravey explained that it is simpIldy. a different distribution of

duties between GS-05 employees than in PlaiIndt.iff’s division. ( ). However, all of the work

is distributed between GS-05 employees. ( ). Conravey explained that his intent with

Plaintiff when he sent her on the detail to NOAO was so she could learn otherI dd.uties in the

event that she occasionally had to perform such duties after Mefferd retired. ( ). Id.

Waits also testified that not all GS-05 employees perform the same work. ( at p.

4

561). Some perform scanning duties, AE Idfi.ling and logging, timekeeping and other

functions, credit cards, and travel orders. ( ). He explained that with Plaintiff in the

office, Conravey was getting ready to divide up the work tIod .alleviate Mefferd’s workload

and to reassign some work to both Plaintiff and Mefferd. ( at p. 562). This would give

Plaintiff some expeIrdie.nce in timekeeping and it would keep everyone from being hounded

at the same time. ( at pp. 562-63). He also corroboraItde.d testimony that timekeeping for

45 people was an eight-hour per day job for Mefferd. ( at p. 563). The evidence reveals

that Plaintiff performed most of the tasks that her predecessor performed, and that thSeeree

iwda. s actual work that Plaintiff’s predecessor performed that was not assigned to her. (

).

Plaintiff also argues that she can be compared to the other, non-disabled GS-05

employees even though they worked in the NOAO rather than the Office of the Chief. She

maintains that Conravey directly or indirectly supervised all of the GS-05 employees,

rotated GS-05 employees through the Office of the Chief until Plaintiff was hired, hired

Plaintiff to potentially replace any one of three GS-05 employees preparing to retire, and

“swapped” Plaintiff with Brakel as part of her training with no formal change in assignment

or supervision. (Rec. doc. at p. 595). She recognizes that while comparative employees

must work in “under nearly identical circLuemestances,” courts do not interpret “nearly

identical” as synonymous with “identical.” , 574 F.3d at 260-61. She contends that

courts properly compare the treatment between employees “when the employees being

compared held the same job or responsibilities, shared the same supervisor or had their

employment status dHeetgegrmemineeiedr bv.y Ctahlde wsealml Cet yp.,e Trseoxn. , and have essentially comparable

violation histories.” , 826 F.3d 861, 868 (5th Cir. 2016).

She asserts that the evidence reveals that Conravey treated the GS-05 employees as

essentially interchangeable for most purposes, except that he treated Plaintiff worse.

This is no more than a conclusory argument. Stating that “I was treated worse than

other employees” does not equate to evidence to prove the truth of the statement itself. It

is, in effect, tautology at its finest. The actual evidence of record reveals that not all GS-05

employees performed the same functions, that Plaintiff performed essentially the same

functions as her predecessor, and indeed, performed even fewer functions than her

predecessor. T2h. is doOesf fneort o cfo Dnsetmituotteio wno rse treatment than the any other GS-05 employee.

Plaintiff also notes that on June 11, 2015, Conravey offered her a “demotion” to a GS-

04 trainee position. She notes that Conravey stated that he did not understand her

disability before he hired her. She considers Conravey’s offer of a demotion to be of a

harassing nature based on her race, sex, and disability. She also claims that this was an act

of reprisal because it happened right after she told Chris Moore about the “cake knives”

5

comment. prima facie

Defendant argues that Plaintiff has failed to establish a case of disparate

treatment or reprisal discrimination on this claim because she did not suffer an adverse

employment action concerning a term, condition, or privilege of employment. Title VII’s

antiretaliation provision protects aBnu irnlidnigvtiodnu aNl .n &o tS farnotma Falel Rreyt. aClioa. tvio. nW, hbiutet from retaliation

that produces an injury or harm. , 548 U.S. 53, 67

(2006). To establish an adverse employment action, a plaintiff must demonstrate that “a

reasonable employee would have found the challenged action materially adverse, which in

this context means it well might have dIidss. uaded a reasonable worker from making or

supportinmg aat ecrhiaarllgye of discrimination.” at 68. The requirement that the challSeeneg eidd.

action be adverse is important to separate significant from trivial harms.

(emphasis added). “An employee’s decision to report discriminatory behavior cannot

immunize that employee from those petty slightsI do.r minor annoyances that often take

place at work and that all employees experience.” Courts apply the objective standard

of a “reasonable” employee to “avoid uncertainties and unfair discrepaIndc.ies that can plague

a judicial effort to determine a plaintiff’s unusual subjective feelings.” at 68-69.

An “offer” of a demotion – by its own definition – is not a “demotion” and does not

constitute an adverse employment action. Moreover, Plaintiff declined the offer of

“demotion” to a GS-04 position, so she ultimately did not suffer a harm or loss with respect

to a term, condition, or privilege of her employment. She has also failed to identify a

5

similarly-situated employee who was treated more favorably under similar circumstances.

And with regard to any claim of reprisal, Plaintiff has not established that Conravey was

aware of her protected EEOC activity. Plaintiff did not file her informal complaint until July

6, 2015 and Conravey testified that he was not aware of her EEOC activity until the meeting

with Moore on July 24, 2015. (Rec. doc. 45-10 at pp. 584-85).

Defendant also argues that Conravey articulated a legitimate non-discriminatory

reason for his actions. Conravey testified that he met witIhd .Plaintiff because she needed

instructions in writing, and it was his plan to do that. ( I da.t pp. 635-40). During the

discussion, Plaintiff raised her need for computer training. ( ). As an Office Automation

Assistant, heI fde.lt that Plaintiff should have already possessed these skills and brought them

to the job. ( ). Conravey only asked her if she would consider voluntarily agreeing to a

GS-04 trainee positionI ds.o that he would be rating her as a trainee rather than at the full

performance level. ( ). Plaintiff needed more training than he expected on normal

administrativIed .duties and automation, and he was trying to avoid rating her low as a GS-05

employee. ( ). When he told her that she would be paid less in the GS-04 positIido.n,

Plaintiff said she was not interested, and that was the end of the conversation. ( ).

Plaintiff thus never suffered an adverse employment action as she remained in her GS-05

position with her same pay. Conravey denies offering the GS-04 position to Plaintiff to

harass her based on her Irda.ce, sex, medical condition, or prior EEOC activity (about which

he did noot fefevren know). ( at pp. 584-85, 609). The Court finds that Plaintiff cannot prove

that this of a change in position, which she rejected without any adverse results and

instead maintained her GS-05 position, is a valid claim for disparate treatment, reprisal, or

6

harassmC.e nt. RTheeta Clioautrito fninds no merit in this argument.

To establish a retaliation claim, a plaintiff must first demonstrate that: (1) she

engaged in an activity protected by the ADA; (2) she suffered an adverse employment

action; aSnede (D3e)B tlahnerce v .i sS ta. Tcaaumsmala cnoyn Pnaerc.t iSocnh .b Betdw. een the protected act and the adverse

action. Seaman v. CSPH, Inc. , 640 F. App’x 308, 312 (5th Cir. 2016)

(quoting , 179 F.3d 297,301 (5th Cir. 1999)). An “adverse action” for

the purpose of a retaliation claim is any action that might dissuade a reasonable worker

from making or suppoMrticnCgo ya vc. hCaitryg eo f oSfh rdeisvcerpiomrtination, whether related to the ultimate

MtecrDmosn onfe ellm Dpoluogylmase nt. , 492 F.3d 551, 559 (5th CiSr.e p2t0i0m7u)s. The

burden shifting framework applies to retaliation claims. , 399

F. 3d at 608.

An individual engages in a protected activity when she opposes any act or practice

made unlawful by the ADA. 42 U.S.C. § 12203(a). A causal connection can be established

by showing “cloSswe atnimsoinn gv .b Geetwn. eSeenr vasn. Aedmmpilno.yee's protected activity and an adverses eaec tailosno

aMgoalidnesnt [vh. eEra]s.”t Baton Rouge Par. Sch. Bd. , 110 F.3d 1180, 1188 (5th Cir. 1997);

, 715 F. App’x 310, 318 (5th Cir. 2F0e1i7st) .v . TLhae. DFeifpt’ht

oCfi rJcuustitic hea, sO fhfiecled otfh tahte c Alotstoer tnimeyi nGge nm. ay include a period of several months.

, 730 F.3d 450, 454 (5th Cir. 2013).

6 offer

Plaintiff argues that Defendant’s legitimate non-discriminatory reason is pretextual. This argument ignores

Plaintiff maintains that she engaged in protected activity when she spoke to

Christopher Moore, Defendant’s EEO manager, on June 10, 2015, and when she submitted a

discrimination complaint on July 6, 2015, both regarding Conravey. One day after Plaintiff

first contacted Moore, on June 11, 2015, Conravey held a meeting at which he suggested

that Plaintiff should accept a demotion or else she would receive a negative performance

review as a GS-05 employee. (Rec. doc. 45-10 at pp. 446-48). Eight days after Plaintiff

submitted her written complaint, Conravey terminated her training detail and, shortly

thereafter, assigned her approxIidm. ately 40% of another employee’s total workload without

reducing her existing duties. ( at pp. 489-90, 803-04). According to Plaintiff, Conravey

then toIldd. Plaintiff, in a meeting to discuss her complaint on July 24, 2015, “no one likes

you.” ( at p. 42).

Conravey testified that he did notI dk.now about Plaintiff’s EEOC activity until he met

with her and Moore on July 24, 2015. ( at pp. 584-85). Plaintiff alleges that although

Conravey denies he was aware of plaintiff’s activity when he “offered” to demote Ihder, his

June 10, 2015 email to Plaintiff expressly states he had just spoken to Moore. ( . at p.

498). But this is no more than Plaintiff’s self-serving testimony at her deposition. Notably,

there is no citation in her pleading to the actual email in which Conravey and Moore

allegedly engaged. Plaintiff also contends that while Conravey denies that he was aware of

the July 6, 2015 complaint, under Army Regulation 690-600, § 3-8(a), he should have been

contacted by the assigned EEO counselor – Waits – within 10 days of her filing the

complaint, around the sSaemee time that he terminated Plaintiff’s training detail without

speaking to Thompson. Army Reg. 690-600, § 3-8(a) (“Usually such inquiries are to be

completed within 10 days of assignment of the precomplaint to the EEO counselor.”). But

this is no more than supposition on Plaintiff’s part. Moore declared under penalty of

perjury that he met with Plaintiff and Conravey on July 24, 2015 to informally resolve

Plaintiff’s claim. (Rec. doc. 45-9 at p. 305). There is no other evidence in the record – and

Plaintiff cites this Court to none – to establish that Conravey knew of Plaintiff’s EEOC

complaint before July 24, 2015. And while Conravey told her that “no one likes you” at the

meeting with MIdo.ore, Moore admonished him, telling him that such a comment was

inappropriate. ( ).

Finally – in what is a crucial blow to Plaintiff’s claim for retaliation – Plaintiff

suffered no adverse employment reaction as a result of any of these alleged actions on

Defendant’s part. Title VII’s antiretaliation provision protects anB iunrdliinvigdtuonal ,N n. o&t Sfaronmta aFlel

rReyt.a Clioa.tion, but from retaliation that produces an injury or harm.

, 548 U.S. 53, 67 (2006). To establish an adverse employment action, a plaintiff must

demonstrate that “a reasonable employee would have found the challenged action

materially adverse, which in this context means it well might haIvde. dissuaded a reasonable

worker from making or supportminagt aer ciahlalyrg ea dovfe drissecrimination.” at 68. The requirement

that the challeSnegee idd .action be is crucial to separate significant from

trivial harms. “An employee’s decision to report discriminatory behavior cannot

immunize that employee from those petty slights Iodr. minor annoyances that often take

place at work and that all employees experience.” Conravey’s statement that “no one

likes you” is no more than a petty slight or minor annoyance. Plaintiff experienced no

adverse employment action because of it – she was not fired, demoted, discFiaprliangehde, ro vr.

aCfifteyc otfe dB oinca a Rnayt wonay. Title VII is not a “general civiliOtyn ccaoldee v”. fSourn tdhoew wneorr kOpfflsahcoer. e Servs., Inc.

, 524 U.S. 775, 788 (1998) (citing ,

523 U.S. 75, 80 (1998)). Properly applied, courts filter out of Title VII complaints attacking

“the ordinary tribulations of the workplace, suIdch. ( qaus otthien gs poradic use of abusive language,

gender-related jokes, and occasional teasing.” B. Lindemann & D. Kadue, Sexual

Harassment in Employment Law 175 (1992) (footnotes omitted)). A recurring point in

Supreme Court opinions is that simple teasing, offhand comments, and isolated incidents

(unless extremely serious) wIdil.l not amount to discriminatory changes in the terms and

conditions of employment. (internal citations and quotations omitted). The evidence

of record reveals that Plaintiff suffered no adverse employment action as retaliation for her

filing ofD h. er EEHOoCs ctiolme Wplaoirnkt bEuntv oirnolyn msueffnetr ed the ordinary tribulations of a workplace.

Plaintiff also alleges a claim for hostile work environment under Title VII.

Specifically, Plaintiff alleges that on two different occasions, her co-worker, Marianna

Zimmerman, exhibited harassing behavior in the office. She claims that Zimmerman yelled

at her in front of Waits about asking him questions. (Rec. doc. 1 at p. 14). She also claims

that Zimmerman made inappropriate comments to another emplIody.ee, James St. Germain,

Chief of Contracts Management Branch in Construction Division. ( ). Plaintiff also asserts

that on June 19, 2015, Conravey taught a Suicide Prevention Training class, in which he

used Plaintiff as an example of a “Suicidal Co-Worker” when he Idm.ade a reference about

cake knives in her possession before she had her “psych eval.” ( at pp. 9-10). SIhde. also

asserts that on July 24, 2015, Mr. Conravey commented that “no one likes her.” ( at p.

17).

To establish a claim of hostile work environment under Title VII, a plaintiff must

prove that she (1) belongs to a protected group; (2) was subjected to unwelcome

harassment; (3) the harassment complained of was based on race; (4) the harassment

complained of affected a term, condition, or privilege of employment; (5) the employer

knew or should Hhaervnea knndeozw vn. Yoefl lothwe Thraarnassps.m, Inecn.t in question and failed to take prompt

rReammesdeyia lv a. cHtioennd. erson , 670 F.3d 644, 651 (5th Cir. 2012) (citing

, 286 F.3d 264, 268 (5th Cir. 2002) (citations omitted)). It is

undisputed that Plaintiff belongs to a protected group as a black, disabled female. The

other factors are not so clear.

Harassment affects a “term, condition, or privilege of employment” if it is

“sufficiently severe or pervasive to alter tRhea mcosenyditions of the victim's employment and

create an abusive working environment.” , 286 F.3d at 268 (quotaItdio. n marks and

citations omitted). Workplace conduct “is not measured in isolation.” (quotation

marks and citation omitted). To deem a work enviIrdo. n ment sufficiently hostile, “all of the

circumstances must be taken into consideration.” This includes “the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or

a mere offensive utteIrda.nce; and whether it unreasonably interferes with an employee's

work performance.” (quotation marks and citations omitted). To be actionable, the

work environment must be “both objectively and subjectively offensive, one that a

reasonable person wFaorualgdh efirnd hostile or abusive, and one that the victim in fact did

perceive to be so.” , 524 U.S. at 787 (citation omitted). While a claim of hostile

work environment entails an objective test, the Court sSheoeu, eld.g .n, Loot wdei svr. eAgmar. dE uprloacionptitfef’rs,

Ld.iLs.aCb.ility in assessing the severity of defendant’s conduct.

, No. 1:10CV24-A-D, 2010 WL 5232523, at *9 (N.D. Miss. Dec. 16, 2010) (finding

hostile work environment when plaintiff was harassed for parking in handicap parking

spot, treated differently from other employees based on obesity, and forced to perform

additional work stated claim for hostile work environment).

Plaintiff argues that Defendant created a hostile work environment when it failed to

accommodate her disability, treated her less favorably than others, retaliated against her

protected activity, and exacerbated her disability through repeated harassing comments

concerning her mental health. Having reviewed the record, the Court cannot find that the

conduct about which Plaintiff complains was so “sufficiently severe or pervasive Rtoa malsteeyr

the conditions of [her] employment and create an abusiveH warorriks ivn. gF oernkvliirfto Snyms.e, nInt.c”. ,

286 F.3d at 268 (quotation marks and citations omitted); , 510 U.S.

17, 21 (1993) (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (“[M]ere

utterance of an . . . epithet which engenders offensive feelings in an employee,” . . . does not

sufficiently affect the conditions of employmiseonlat tteod implicate Title VII.”)).

Plaintiff complains of a handful of instances of harassment. Plaintiff was

reprimanded by Zimmerman, and Zimmerman allegedly said something derogatory to St.

Germain about Plaintiff. Thnee vCeorurt notes that an employee cannot truly expect to work at a

place of employment and expect a reprimand in some form or another. Moreover,

this Court has no idea of the content of either the reprimand or the statement to St.

Germain as Plaintiff only alleges that the reprimand and the statement occurred, not what

the content was. There is no evidence that the reprimand or the statement to St. Germain

constituted harassment or referenced Plaintiff’s race, sex, or disability. That leaves only the

statements by Conravey concerning the cake knives and that “no one likes her” – the only

comments about which this Court knows the content. While certainly inappropriate and

demeaning – and this Court would never condone such behavior or speech – these

statements in and of themselves are simply too isolated and do not constitute severe and

pervasive conduct that permeated Plaintiff’s workplace. They constitute no mor e than

mere uttEe.r ancCeso nonst trhuec tpiavret Dofi sac phaarrtgiceularly insensitive individual. This claim fails.

Plaintiff was not fired; she resigned. A resignation is actionable under Title VII,

allowing the plaintiff to seek compensatory damages foFra eruvekni tvs. Pafatresro tnhse resignation only if

the resignation qualifies as a constructive discharge. , 123 F.3d 315, 319

(5th Cir. 1997). To prove a constructive discharge, a “plaintiff must establish that working

cIdo.nditions were so intolerable that a reasonable employee would feel compelled to resign.”

To determine whether a reasonable employee would feel compelled to resign, the Fifth

Circuit has considered the relevancy of the following events:

(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities;

(4) reassignment to menial or degrading work; (5) reassignment to work

under a younger supervisor; (6) badgering, harassment, or humiliation by

the employer calculated to encourage the employee's resignation; or (7)

offers of early retirement [or continued employment on terms less favorable

Brown tvh. aKni nthnee ye mShpoloe yCeoer'sp .former status]. . . . Brown v. Bunge

Corp. , 237 F.3d 556, 566 (5th Cir. 2001) (quoting Barrow v. New

Orlea,n 2s 0S7t eFa.3mds h7ip7 6A, s7s8'n2 (5th Cir. 2000) (alteration in original) (quoting

requires a greater degr,e e1 0of Fh.a3rda s2s9m2e, n2t9 t7h a(n5 tthh aCti rr.e q1u9i9r4e)d) .b y Cao hnostsrtuilcet ievnev idriosnchmaergnet

claim Benningfield v. City of Houston

. , 157 F.3d 369, 378 (5th Cir. 1998). Discrimination

aBlooznee v, .w Birtahnosutte tatgegrravating factors, is insufficient for aL calnaidmgr oaff vco. UnsStIr Fuiclmtiv Per doidssc.harge. . . .

, 912 F.2d 801, 805 (5th Cir. 1990); , 968 F.2d

427, 429-30 (5th Cir. 1992).

This Court makes short shrift of this claim. Because this Court finds that Plaintiff did

not work in a hostile work environment, this Court cannot find that any alleged harassment

aBreonsnei ntgof iesludch a degree as to justify any claim by Plaintiff for constructive discharge.

V. Concl, u1s5i7o nF.3d at 378. This claim too fails.

FITo rI Sth OeR foDrEeRgoEiDng reasons,

that Defendant’s Motion for Summary Judgment (ReGc.R dAoNc.T 4E5D) filed

by Defendant Christine Wormuth, Secretary of the Army (“Defendant”) is , and

PDlIaSiMntIiSffS’sE Dc lWaimITsH aPgRaEinJsUtD DICeEfendant Christine Wormuth, Secretary of the Army, are

. 14th March

New Orleans, Louisiana, this day of , 2022.

MICHAEL B. NORTH

UNITED STATES MAGISTRATE JUDGE