# Johnson-Luster v. Secretary of the Army

> District Court, E.D. Louisiana · March 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10187594

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** March 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10187594

## How later opinions describe it (automated extraction)

- recognizing reasonable accommodations may include environmental mitigation and employee communication
- holding that employee subject to conditions creating a Vcaolnes tvr.u Gctrievaet dNisecchka rWgea toerr Pcoonllsuttriuocnt Civoen tdreoml Doitsito.n suffered adverse employment action

## Opinion text

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
1
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,
2
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).
2
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10187594. Public record. Not legal advice.